Reviving CERCLA\u27s Liability: Why Government Agencies Should Recover Their Attorneys\u27 Fees in Response Cost Recovery Actions

The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) imposes strict, retroactive liability on owners or operators of sites contaminated with hazardous waste. CERCLA also authorizes private parties and the Environmental Protection Agentry (EPA) to initiate the cleanup process and to recover the costs of that cleanup from the responsible party. The language of section 7 of CERCLA, however, is ambiguous as to whether attorneys\u27 fees incurred in litigation to recover these response costs are recoverable. The Supreme Court in Key Tronic Corp. v. United States, held that private parties cannot recover attorneys\u27 fees in such actions. Even so, the Court expressly reserved judgment on the issue of whether, in recovery actions taken by EPA, attorneys \u27fees could be recovered. This \u27Comment argues that the history, structure, and pU1pose of CERCLA all suggest that the Supreme Court should follow the decision of the Ninth Circuit in United States v. Chapman, and hold that EPA attorneys\u27 fees are recoverable as part of the response costs of cleanup