• Seventh Circuit Says CERCLA Cost Recovery and Contribution Claims Are Mutually Exclusive
  • February 5, 2013 | Authors: Steven L. Hoch; Christopher W. Smith
  • Law Firm: Morris Polich & Purdy LLP - Los Angeles Office
  • In a recent decision, the Seventh Circuit Court of Appeals decided that a party seeking to pursue both a cost recovery and contribution claim under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) was impermissible. Bernstein v. Bankert, No.11-1501, 11-1523, --- F.3d ---, 2012 WL 6601218 (Dec. 19, 2012) (“Bernstein”). In reaching its decision, the circuit court joined other circuit courts which have similarly held that the potential for bringing both claims, while theoretically possible according to the Supreme Court in Atlantic Research, is best left to theory. As support for its decision, the circuit court relied upon the United States Supreme Court’s decision in Burlington Northern which discussed the availability of apportionment and the impact of that availability on joint and several liability. Given the recent decision in Bernstein, it would seem advisable that election of the appropriate CERCLA claim—cost recovery or contribution—at the outset is the most significant decision an environmental practitioner faces pre-litigation.