Case Update

Tobias N. Smith
tobias.smith@strasburger.com

Aviall Services, Inc. v. Cooper Industries, Inc.
Sitting en banc, the Fifth Circuit Court of Appeals reversed its prior panel decision in Aviall Services, Inc. v. Cooper Industries, Inc., No. 00-10197 (5th Cir. Nov. 14, 2002), reversing and remanding the case to the district court. The court weighed in on the question of whether Potentially Responsible Parties (PRPs) are precluded from seeking contribution under federal law from other PRPs for environmental cleanup and remediation expenses where no civil action has been brought under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In overturning the panel decision, the court held that a PRP may bring a cause of action for contribution against other PRPs regardless of whether CERCLA litigation has commenced. The Aviall decision brings the Fifth Circuit more in line with other circuits on this question, as the court noted, “the great majority of circuit courts implicitly reject [the position taken in the panel decision].” The court disagreed with the panel’s interpretation of CERCLA Section 113(f)(1). While the panel decision held that the provision’s language limited contribution claims to only those “during or following” instances in which litigation had been commenced under CERCLA Section 106 or 107(a), the court found this interpretation flawed. The court focused on the language used in Section 113(f)(1), which states that a PRP “may” bring an action for contribution, but does not use words of limitation in conjunction with the enabling language, as had been previously construed in the panel opinion. Thus, the court’s holding permits PRPs to bring private causes of action under federal law (in addition to any potential state law claims) even where the PRP seeking recovery has not been subject to CERCLA action.