OCTOBER TERM, 1993
KEY TRONIC CORP. v. UNITED STATES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 93-376. Argued March 29, 1994-Decided June 6, 1994
Petitioner Key Tronic Corporation, one of several parties responsible for contaminating a landfill, settled a lawsuit filed by the Environmental Protection Agency (EPA) and then brought this action against the Air Force and other responsible parties to recover a share of its cleanup costs, including attorney's fees for legal services in connection with (1) the identification of other potentially responsible parties (PRP's), (2) the preparation and negotiation of the settlement agreement with the EPA, and (3) the prosecution of this litigation. The District Court held, inter alia, that all of the attorney's fees were recoverable under § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). The Court of Appeals disagreed as to each type of fees and reversed.
Held: CERCLA § 107 does not provide for the award of private litigants' attorney's fees associated with bringing a cost recovery action. Pp. 814-821.
(a) Under the longstanding "American rule," attorney's fees generally are not a recoverable cost of litigation absent explicit congressional authorization. See, e. g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240. The relevant provisions of CERCLA do not expressly mention the recovery of such fees, although § 107(a)(4)(B) imposes private liability for the "necessary costs of response" to the release of a hazardous substance, while § 101(25), as amended by SARA, defines "response" to include "enforcement activities." Pp. 814-816.
(b) The fees for prosecuting this action against the Air Force are not recoverable "necessary costs of response" under § 107(a)(4)(B) because the "enforcement activities" included in § 101(25) do not encompass a private party's action to recover cleanup costs from other PRP's. First, although § 107 unquestionably provides such a cause of action, that cause is not explicitly set out in the section's text, but was inferred in numerous District Court cases interpreting the statute. To conclude that a provision that only impliedly authorizes suit nonetheless provides for attorney's fees with the clarity required by Alyeska would be unprecedented. Second, Congress' inclusion of two express fee awards provisions elsewhere in the SARA amendments, and its omission of a similar
provision either in § 107 or in § 113, which expressly authorizes contribution claims, strongly suggest a deliberate decision not to authorize such awards in the kind of private cost recovery action that is at issue. Third, it would stretch the plain terms of the phrase "enforcement activities" too far to construe it as encompassing such an action. pp. 816-819.
(c) Unlike litigation-related fees, the component of Key Tronie's claim covering activities performed in identifying other PRP's constitutes a "necessary cosEt] of response" recoverable under § 107(a)(4)(B). Such work might well be performed by engineers, chemists, private investigators, or other professionals who are not lawyers, and fees for its performance are clearly distinguishable from litigation expenses governed by the American rule under Alyeska. The District Court recognized the role such efforts played in uncovering the Air Force's disposal of wastes at the site and in prompting the EPA to initiate enforcement action against the Air Force. Tracking down other responsible solvent polluters increases the probability that a cleanup will be effective and get paid for. Key Tronic is therefore quite right to claim that these activities significantly benefited the entire cleanup effort and served a statutory purpose apart from the reallocation of costs. Pp. 819-820.
(d) However, fees for the legal services performed in connection with the negotiations between Key Tronic and the EPA that culminated in the consent decree do not constitute "necessary costs of response." Although studies that Key Tronie's counsel prepared or supervised during those negotiations may indeed have aided the EPA and may also have affected the cleanup's ultimate scope and form, such work must be viewed as primarily protecting Key Tronie's interests as a defendant in the proceedings that established the extent of its liability. Pp. 820-821.
984 F.2d 1025, affirmed in part, reversed in part, and remanded.
STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion dissenting in part, in which BLACKMUN and THOMAS, JJ., joined, post, p. 821.
Mark W Schneider argued the cause for petitioner. With him on the briefs were James R. Moore, Michael Himes, and Kathryn L. Tucker.
Deputy Solicitor General Wallace argued the cause for the United States. With him on the briefs were Solicitor General Days, Acting Assistant Attorney General Schiffer,