CERCLA contribution reach and the Guam do-over

On May 24, 2021, the U.S. Supreme Court released its opinion in the Territory of Guam v. United States case. At issue was whether Guam could maintain a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 113 contribution action based on a previous settlement with U.S. EPA under the Clean Water Act (CWA). While the ultimate remedy and clean-up of the facility in question was essentially the same under the CWA settlement as it would be under CERCLA, the Court held that a CERCLA Section 113 contribution claim is only available for a settlement that resolves CERCLA-specific liability based on a strict interpretation of the statute. Since Guam settled under the CWA, it could not pursue a CERCLA Section 113 contribution claim.

What at first appears to be a setback to Guam’s efforts to pursue clean-up costs from the U.S. Navy, actually becomes a victory. Since Guam did not have a CERCLA contribution claim based on its non-CERCLA settlement, it still had a CERCLA Section 107 cost recovery claim, as the availability of a Section 107 claim is not triggered by a prior CERCLA settlement with the government. The two claims under CERCLA are mutually exclusive. If you have a CERCLA contribution claim, you do not also have a CERCLA cost recovery claim. The Court’s opinion now allows Guam to pursue a Section 107 cost recovery claim which includes joint and several liability and a six-year statute of limitations, compared to the three-year statute of limitations for a CERCLA contribution claim.