A landowner that was never subject to a CERCLA suit but voluntarily cleaned up toxic waste on its property can’t seek contribution from the prior owner, the U.S. Supreme Court has ruled in a 7-2 decision.

The ruling could mean companies are less inclined to voluntarily remediate spills before being ordered by regulators to do so.

After the plaintiff purchased the property, located in Texas, it discovered the previous owner, a manufacturer of electrical products, had contaminated the site. It began a voluntary clean-up after the state natural resources agency said it was in violation of state environmental laws. However, the EPA never filed a CERCLA suit against it.

The plaintiff spent $5 million cleaning up the property, then filed a claim against the previous owner for recovery of those costs. The 5th U.S. Circuit Court of Appeals ruled in favor of the plaintiff, but the Supreme Court reversed that decision.

Section 113(f)(1) of CERCLA generally allows a property owner to seek contribution from any other person who is liable or potentially liable under the act.

The previous owner claimed that it couldn’t be sued for contribution because the EPA had never initiated a CERCLA suit against the plaintiff.

The court agreed.

“Section 113(f)(1) does not authorize [the plaintiff’s] suit,” wrote Justice Clarence Thomas for the majority. “The first sentence, the enabling clause that establishes the right of contribution, provides: ‘Any person may seek contribution . . . during or following any civil action under [§106 or §107(a)],’ … The natural meaning of this sentence is that contribution may only be sought subject to the specified conditions, namely, ‘during or following’ a specified civil action.”

The majority rejected the plaintiff’s argument that “may” in the statute should be read permissively, such that ‘during or following’ a civil action is one, but not the exclusive, instance in which a person may seek contribution.

“First, as just noted, the natural meaning of ‘may’ in the context of the enabling clause is that it authorizes certain contribution actions – ones that satisfy the subsequent specified condition – and no others,” Thomas wrote. “Second, and relatedly, if §113(f)(1) were read to authorize contribution actions at any time, regardless of the existence of a §106 or §107(a) civil action, then Congress need not have included the explicit ‘during or following’ condition. In other words, [the plaintiff’s] reading would render part of the statute entirely superfluous, something we are loath to do.”

(Cooper Industries, Inc. v. Aviall Services, Inc., No. 02-1192. Click here to read full opinion.)