Aviall Fallout

Ever since the Supreme Court's decision in Cooper Industries v. Aviall, district courts around the country have been wrestling with how to apply it. Aviall knocks out one of the pillars of CERCLA jurisprudence -- that any PRP can bring a contribution claim against any other PRP even when there has been no government action or claim under CERCLA Section 107.

It's interesting to see how the district court's are dealing with this problem. In Metropolitan Water Dist. v. Lake River Corp., 2005 WL 925680 (N.D. Ill. April 12, 2005) and Vine Street LLC v. Keeling, 2005 WL 675786 (E.D. Tex. March 24, 2005), the courts decided that CERCLA Section 107 provides authority for a PRP to sue. CERCLA Section 107 allows the government or "any other person" to recover response costs. In the Metropolitan Water District case, the court's decision adopted a broad reading of the statute, but also seemed to hinge on the fact that there was no circuit authority directly prohibiting a PRP from bringing a Section 107 claim.

In other recent decisions, however, the courts have held that Section 107 does not provide authority for a PRP to sue another PRP. See City of Waukesha v. Viacom Int’l, Inc., 2005 WL 712423 (E.D. Wisc. March 23, 2005); Elementis Chemicals Inc. v. TH Agriculture & Nutrition, LLC, 2005 WL 236488 (S.D.N.Y. Jan. 31, 2005). These decisions are based on pre-Aviall circuit precedent prohibiting PRPs from bringing Section 107 actions. That precedent may be revisited in light of Aviall, but any change will likely have to take place at the circuit court level, not in the district courts.