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Quote of the Day - The dissenting opinion has continued since 1792 as a great American tradition. It is as true to the character of our democracy as of speech itself. - William O. Douglas

Dissent Turns Into Majority Opinion; Third Circuit Finally Falls In Line

Companies Who Voluntarily Cleanup Contamination Can Seek Contribution From Others

While the courts struggled with the issue of whether a volunteer who cleaned up a contaminated site could sue others who contributed to the problem, many such cleanups were shelved.  Companies accused of contaminating sites simply sat back and waited, doing nothing and risking an order or lawsuit from the government.  Luckily, that order from the largely overworked and understaffed governmental agencies charged with overseeing environmental cleanups typically never came.

The gamble paid off, and paid off big for company pocketbooks. 

Now, with one of the last holdouts in the county, the Third Circuit, in line with the US Supreme Court and most other state supreme courts, voluntary remediation can begin once again, safe with the knowledge that the volunteer can seek contribution from other companies who also contaminated the site.  In particular, volunteers can also sue the U.S. and state governments for their participation in the contamination without fear the government has the power to avoid liability.

Back in 2006, U.S. Circuit Judge Dolores K. Sloviter dissented to the Third Circuit's majority opinion, where the majority blocked volunteers from seeking contribution.  According to the then majority in E.I. DuPont de Nemours Co. v. United States, a company who voluntarily cleaned up a toxic waste site could not seek contribution from the federal government, even if the government itself was also a polluter at the site.

At the time, MIPTC complained that this opinion made no sense, and echoed Judge Sloviter's dissent.  The 2006 decision made little sense because it allowed not only the government, but also other companies who contributed to the contamination to escape liability - patently unfair to those companies who elected to voluntarily remediate the problem. 

Since then, the Supreme Court has clarified its earlier ruling in Cooper Industries v. Aviall and U.S. v. Atlantic Research Corp., where it restored sanity to the interpretation of CERCLA, the federal statute that regulates contamination cleanup liability.

As a consequence, Judge Sloviter's dissent and MIPTC's complaints were vindicated, and finally, the Third Circuit has seen the light in its 2007 version of E.I. DuPont de Nemours Co. v. United States.

Sometimes dissenting opinions are worth considering, especially when they make more sense than the majority opinion.   Companies can now voluntarily cleanup contamination safe in the knowledge they can sue others who contributed to the problem and make them pay their fair share.

Posted by J. Craig Williams on Sunday, December 02, 2007

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