A lot of people weren't happy with the Supreme Court when it decided Cooper Industries Inc. v. Aviall Services Inc. in 2004. In that case, the High Court overturned the precedents of nine circuit courts and ruled that a landowner who voluntarily paid to clean up a polluted site couldn't make other polluters help pay for the cleanup under Sec. 113 of the Superfund law.
Environmental activists blasted the decision because it discouraged companies from voluntarily cleaning up toxic pollution and let some polluters off the hook. Businesses weren't happy because Cooper essentially punished them for anteing up the cash to clean up hazardous waste that someone else produced. And lower courts were annoyed because the decision led to a tidal wave of lawsuits as owners of Superfund sites looked
Sec. 107. The 3rd Circuit is the only federal appellate court that has ruled that 107 does not authorize a right of action.
"The balance is tipping slightly toward being able to bring an action," says Paul Gutermann, a partner at Akin Gump. "There's an established line of cases for an implied right of action."