Key Tronic Corp. v. United States, 511 U.S. 809, 16 (1994)

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Scalia, J., dissenting in part

encompassing the kind of private cost recovery action at issue in this case." Ibid. I do not agree. While the term "enforcement" often—perhaps even usually—is used in connection with government prosecution, that is assuredly not the only form of legal action it refers to. It clearly includes the assertion of a valid private claim against another private litigant. Lawyers regularly speak of "enforceable obligations" and "enforceable contracts," and of "enforcing" a private judgment. We have called the private rights of action created by the Clayton Act "vehicle[s] for private enforcement" of the law, Cargill, Inc. v. Monfort of Colo., Inc., 479 U. S. 104, 109 (1986), and the "private enforcement" characterization seems especially apt here, where the plaintiff's suit must be "consistent with the national contingency plan" promulgated by the Environmental Protection Agency. 42 U. S. C. 9607(a)(4)(B). As I read the Court's opinion, it interprets "enforcement activities" to cover, at most, the government's attorney's fees in a cost recovery action. See ante, at 819. That gives the specification of 9601(25) that certain terms include "enforcement activities" no application to private parties, and no application to any terms except "removal" and "remedial action"—which is very curious, since the parenthetical in 9601(25) suggests that those two terms, far from being central to the provision (much less an embodiment of its total application), were in danger of being overlooked.

I would read "enforcement activities" in 9601(25) to cover the attorney's fees incurred by both the government and private plaintiffs successfully seeking cost recovery under 9607 of CERCLA.

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