OCTOBER TERM, 1993
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
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