Post Aviall Settlement Jurisprudence -- Back To The Future

Over the first two decades of CERCLA, the rule gradually emerged that parties which settled their liability were restricted to contribution claims under Section 113(f)(1) and would be entitled to contribution protection under Section 113(f)(c)(2). Moreover, in order to ensure the effectiveness of that settlement scheme, courts routinely ruled that claims against settling parties were all barred by contribution protection regardless whether those claims had been asserted in the form of direct CERCLA cost recovery claims under Section 107 or as common law tort claims for negligence, nuisance, or trespass. E.g., Cannons Engineering.

In 2004, the Supreme Court in Cooper Industries v. Aviall threatened to turn upside down all of that established jurisprudence by declining to extend contribution protection to a party which voluntarily cleaned up contamination without having first been sued by the government. One commentator somewhat hyperbolically asked at the time whether A