party's clean water act settlement nevertheless triggered a certain circle contribution claim a claim under the very statute it's hard to avoid that's wrong for two independent reasons st section one  surplus liability and that reading squares with traditional contribution principles which require the resolution of a common liability the common liability of the triggers a circle a contribution claim is surplus liability united states contrary interpretation depends upon construe in section one hundred and thirteen dollars f three b as if it were an island ripped from its context it creates the untenable result that the meaning of the phrase resolved its liability changes from one paragraph of section one hundred and thirteen dollars after the next and it manufactures an unprecedented contribution right that does not require a common liability and can be triggered even when the defendant is immune from liability on the settled claim as united states was here none of that makes any sense and nd to united states position also fails because the parties clean water act settlement simply does not resolve juan's liability for response action under the plain terms of the decree qualm of just as exposed to bringing this case under section one hundred and seven yourself where you don't want to imply such a term i just want to make sure i have your response to that well the question is whether the settlement of the clean water act triggered a contribution right under section one hundred and thirteen after a b and that depends on whether or not it resolved liability under circle i don't think there's any consistency in our view everybody agrees that if the settlement upon what you call an anchor provision and i'm not quite sure where that fits in our sort of list of statutory guidelines i gather it's not quite defined term but it's also not term of art what's the best authority that you can point me to where you have the kind of analysis that you're asking us to adopt here well i would point you to the cardinal rule that provisions have to be construed in context and in light of their surrounding provisions so here one hundred and thirteen dollars after it be as part of an integrated circuit contribution provision and it makes sense to read the language of the key phrase result its liability and how that is used throughout the statute and if you look and thirteen dollars f it starts by establishing an f one the liability that that matters and that circular liability and then and each provision thereafter uses the phrase resolved it's liability and the government doesn't dispute that res liability and have two main circle of liability and there's no reason it would have any different meaning an f three b and i think that's perfectly consistent with the rule of context that this always applies and that the abnormal rule here is the one  have any other instances in which that you can think of where the parties reach a settlement and then they turn around and each other over the very same problem well i mean there 's certainly other incentives that trigger a contribution claim your honor and i think you know one of the groupies here is that the united states is not subject to suit under the clean water act so the whole notion that that statute of limitations if you say who is contained that and why would you bring a clean water act claim under sort of the well i mean you couldn't i mean certainly  i don't think that situation would arise your honor if i understand the question i mean here the united states could have certainly pursued a claim under surplus it didn't in order to inflate itself from liability and water act and our position is consistent traditional principles a contribution that the settlement of that claim didn't trigger a circle a contribution right which we think fall from the terms of the statute as well have there been other instances in which  relatively recently i think the position was that you would expect a circle a claim to trigger a circle a liability i mean it wasn't until i think two thousand and thirteen the circuit st adopted the contrary rule and it just throws in a wrench into the whole way in which this provision was intended to operate and create numerous anomalies including giving the phrase resolve its liability a different meaning throughout the statute but the contribution you're seeking comes from clean the clean act that's what i'm getting at if you're saying the statute of limitations in the nation to be contained on the circular then why would you be bringing a claim from the clean water act for a contribution requires for the purposes of this act it requires that there be an express admission of liability well i mean people settle cases all the time or where they're not going to admit they were liable but they might agree to take actions of x y or z in the future and by somebody might without do the same thing here right and that's not our position justice breyer and i don't make the argument that you have to admit that the claim was valid and  you know we don't have a lot or we have as a clause saying there was no financial liability but fundamentally on the nd question the problem with the settlement is it doesn't extinguish any liability the settlement explicitly give united states the option to yes yes i mean in paragraph forty seven and forty eight then what did you get out of your agreement and i think well your honor the one thing that it was all too was the clean water act penalties which are statutory penalties that can add up but it didn't resolve any liability with respect to a response action and in fact you know once this action was taken to cap the dump the united states in theory could come back and sue under circle the next day and say well you know what we thought about it some more we think you should tear up and remove the wast altogether this settlement didn't resolve any liability and again that's a typical because if you look at the model consent decree it includes a covenant not to sue except for future unknown conditions but the settlement here  left exposed to liability under any law with respect to any claim involving a response action and so for that reason alone we would urge you to rule for us on the nd question presented i see ok added judicially approved settlements already covered by the phrase following any civil action in paragraph one right so your honor one would covers the situation where there's no pending litigation the parties voluntarily agreed to settle with united states state and then they go to court to judicially approve that and so i think in that instance it would make sense for congress to spell out what happened with respect to such a settlement and i would add with respect to the super argument by the united states i mean this also covers administrative settlements and so that wouldn't be covered at all by one there would be no pending litigation i think you know once congress is going to spell out what happens in the case of administrative settlement i think it only makes sense for to spell out what happens in the case of the judicially approved settlement where there has been no prior litigation and that's a little bit belton suspender that's something that this court has recognized congress done elsewhere and certainly and i think it made perfect sense your hon paragraph one carries through to the other paragraphs including three why would it have needed to include bad language well i mean i think what it does is it tells you that the  federal no circle contribution claim is a federal claim and so would other override other provisions and that's one of the problems of the state and the key address and that the government's interpretation would mean that anytime you send all non circle claim under state law it would trigger the federal contribution claim and therefore override state different cost recovery regimes which is a direct intrusion a court would not presume the congress intended unless it said so i think the fact that congress peled out the contribution actions brought under federal law you know is quite significant and pointing to the conclusion that congress didn't mean this strange contribution right the that the united states says it confusion because it was my own your question asks whether a settlement that expressly disclaims any liability determination and leaves the subtly portie exposed to future liability can trigger a contribution claim section one hundred and thirteen s three b settlement agreements often can disclaim liability but resolve liability at the same time many settlement agreements will say i don't admit liability but i will resolve my liability under your claims under the clean water act that's what happened here correct well yes no i mean they did say that there was no liability but the claims correct well no i mean a claim to sell for a condition on compliance with the korean accountant your city quibbling with words you got some value out of it you got away from some damages that you were legal obligations under all federal environmental statutes by the way that's very comparable to most general release is this settlement resolves all claims arising from to whatever the complaint is a riot known or unknown that's the typical general release if it had been a general release like that would you have any arguments in this case the argument would be much way street on agree to do some things here but the united states never relinquished its claims to sue guam for the very same conduct very same actions here and that's made explicit in the decree of the only thing that's  an equity here which is the u s really retains the right to see you under the clean water act so your argument is we should have the right to sue them correcting for contribution not your honor not just a clean water act but i'm sorry because it's usually considered a problem and statutory interpretation when one provision especially very close to another provision has very different language so you know f one says liability uses circular language and three b doesn't and it was incorrect about that because if three d b does usurp the circle of specific language it uses the terms of our response action in response costs which actually track the references  necessarily think that after a list or a car liability as to says liability about matters addressed in the settlement i mean you could think that after it was more like f three then it is like f one well i mean you should ask the government a question because it's never disputed our circle right and i think all this has to be construed against common law contribution principles which require a common liability and a common liability here is a circle of liability in this court is held that one  question is there no your honor there's not a minute that's a separate issue that would go forward on remand and so whether you succeed or not is immaterial for the purposes of this appeal right the that we don't have to touch it that's absolutely right ok and then can you explain for a moment your argument about the preempt of a fact of the government's position for state contribution laws and law so that means that if a person settles a claim other than under circle under a state provision that would trigger a federal contribution right which would preempt the alternative regimes that states across the country  that well sure sure your honor and again i think this gets back to what it means to have a contribution claim an ordinarily you would try you would require a common liability so you would set a liability for this and you have a contribution claim into the same liability and what the government's interpretation does here is to import this you know discrete circle of contribution claim as into other federal statutes and override other state laws that deal with cost contribution i mean congress ordinarily doesn't create a contribution right but under the government's interpretation this settlement a claim other than surplus would trigger this contribution right under circle ineffectively important contribution regime and other provisions under federal law as well as state law and that's very disruptive and it's hard to believe that congress intended it and all of those problems are resolved by giving this contribution provision it's you know the normal meaning of requiring the resolution settling a claim under a different statute to which the united states itself enjoys immunity which is true of the clean water act and that somehow that that settlement would trigger a circle of contribution right so so that in itself is a problem that i think you would have avoided this congress is clear another problem is you know the problem with displacing contrary federal federal and state contra costa recovery regimes which i was discussing with justice for such and i think it also creates this unprecedented contribution right now is known to the common law where you don't need a common liability where the resolution of liability under one statute triggers contribution right seven which talks about the ability of the section that you want to sue the united states under the ability to recover action costs of an option so there's not been an action so there's been no judicially determined amount honor i hope this is responsive but that what would happen is like typically you do either have litigation among the parties over a circle i built in that would trigger the contribution or in the form more the parties could voluntarily settle with the state authority or the united states in which case they could spell out specific actions in ordinarily that model itself which spell out that those actions are taken under surplus here of the united states proceeded under the clean water act we think pretty clearly because it was start that and how do you given the broad definition of response costs and the fact that the costs are undertaken not pursuant to any sort of a payroll necessarily right so you're right a member spawns action in response causes of his well known circle term of art and our position a new thirteen b b is like what's the liability for that but what i would say iran or one thing that's critical is in order to qualify as a response action response costs the action or policy has to be in concert incurred in connection with the release of hazardous substances and another thing that's unusual about the clean water act settlement here is a never identified any hazardous substances included within the definition of response costs or action under surplus only identified pollutants the discharge of pollutants under the clean water act which is a different term and doesn't necessarily include hazardous substances under circle and that's another reason why the resolution the parties clean water act claims could not have real negative impact united states and the ruling in one favor in this case other than having to pay its fair share for the cleanup and e p a s own model settlement agreements give the united states a ready made solution should it loses case and some want interpretation rise to a contribution claim regardless of whether the underlying claim rose under circlip or some other statute this follows most naturally from the meaning of the words liability for a response action the term response action is defined in circle in a way that does not depend on which underlying statute that action was undertaken in order to comply with in addition circle often uses the term response action to include  under other statute if congress wanted to limit this provision to circle liability it could easily have said so there are many other provisions of the act that use terms such as settlement under this act liability under this act response action under this act there is no such limiting language in the provision at issue here turning to the nd question the feldman to resolve qualms liability a party resolved liability if it settles its legal obligation to perform or pay for a response action that's exactly what the settlement here did i welcome the court's questions town so looking at two titles settlement a person who has resolved it's liability to the united states is that my ability for anything or is not a liability under certain it's neither of those things mr chief justice it's a liability for a response action  like knowledge that f two is probably the most difficult provision for us to deal with but let me explain why it's justified to infer the term for a response action in after two in a way that it's not justified in after  united states under three b no they are not identical phrases have to it's just resolved it's liability to the united states and have three b is resolved it fly ability to the united states for some or all of the response action that's the  difference i wanted to focus on which is that phrase for some all over response action tells us what the nature of the liability must be if after the half to however is completely silent about the nature of the liability it contains  to right on to three b is talking about response actions i agree mr chief justice what that proves is that the presumption that the disparate inclusion and omission of language suggests a difference in meaning is think that you could have sort of a recovery for say penalties under other environmental provisions no justice thomas the circle recovery would we do not believe that the settlement here would have allowed us to bring such an action against qualm and i could walk you through the relevant provisions if you'd like there were there on page one hundred and sixty six dollars a of the petition appendix fo transaction or occurrence even if the insult different fashion is confirmed by paragraph forty six which says that the decrease should not be interpreted to limit the united states right to make any sense if qualm didn't get anything out of it now they're relying on paragraph forty eight dollars but the st words of paragraph forty eight dollars are except as specifically provided here in and as i just explained that decree does specifically provide here in for the elimination of the united states right to bring related claims right here in the spire where i'd of the trouble i'm having on your side is i can't get too far using the language of the statute i mean sure you could read it you ok it could mean either and if i look at the definition of response it starts by saying for purposes of this subchapter then i look at the definition of response and it's about four hundred and fifty to five hundred words including all kinds of things i'm tempted to say anything under the sun that isn't quite true good all kinds of technical things perimeter protection using dykes you know collection of lead shade how do i know whether a state has a collection of lead shade law that has nothing really to do with circle and i don't know but there could be a lot of lawyers who don't know and when they go into any one of what could be  it involves some of these four hundred and fifty or five hundred words under some law of a state or other federal law do they know they have only three years to ask for contribution i mean this is a pretty tough reading and a lot of people who just won't know they have only three years they might think they had seven or something else so what kind of a boundary is this if we read it your way i mean what statutes are involved  reassurance that our position doesn't lead to the kinds of practical problems that you're worried about the st point is that while response action is indeed a broad term is not an unlimited term the court made that point just last term in the atlantic richfield opinion on a test not everything under the sun qualifies as a response option the nd answer is that a lot of these cases involve sophisticated parties governmental entities territorial or state governments and large corporations these are the kinds of entities that can be expected to have good legal advice about how environmental laws interact with circlip finally to the extent that there are case by case fairness problems those should be addressed under frameworks such as equitable tolling not by distorting the meaning of the substantive statute itself thank you justice alito counsel a long argument in very simple terms is basically legitimate reasons in one thousand nine hundred and eighty eight for deciding not to proceed under circlip by that time the clean water act process had already been underway for a couple of years and e p a explained how the clean water act procedure would as it were killed two birds with one stone would solve both the circle problem and the clean water act problem making circle remedy unnecessary now guam says that it should be allowed to recover under circle and we agree but that we just think the recovery should be under the contribution provision rather than the cost recovery provision and even if you step back and think about it guam's action as it were sounds and contribution they said they have been forced to bear an inequitable share of the cost and the united states should bear a portion of that responsibility that fits to a to a t one a contribution action is meant to be about now let me let me come back to the subsection two arguments the way that it's worded show believe i'm right because i've been told this in the briefing that the word responsive faction is not used in any other statute am i correct no that's not quite correct there are state statutes baby store clothes  response to circle or one might do so in response to a nuisance claim in state court both would be response actions why should it matter why a person initiat activity it seems to me just for the reasons justice alito just said the simplest reason if response action is surplus specific in terms of all of the activities that you can be why should we build that into a different act like the clean water act by the way i thought that the harm address in the clean water act was  releasing pollutants without a permit that's a very different harm than what circle of oaks to which is releasing hazardous response to refer to action taken under other statutes including the clean water act itself this is on page fourteen section nine thousand six hundred and four k twelve now as for your question about harm the chief justice about the meaning of f two i understood you right you acknowledged that there was a gap in f to another words liability for what and you said that the way that gap should be filled is to say liability no i think the truth of the matter is we have not said anything about f two until this point we certainly haven't conceded that have to his like affluent ok so if you're saying f two an f three b go hand in hand and they're different from f one i guess the question that follows is why what's the theory on which an f two an f three b congress brought in doubt liability why did congress treat two  levy differently than the one is that the question asked the question or the reason i can think of a few plausible reasons although i don't know which one is true as a matter of fact the st is that congress managed to encourage settlement and therefore provided broader rights with respect for so then they would never settle no i think that congress clearly was providing a benefit in aft to have three vehicle scrapping parties more rights like protection from contribution claims and the ability to bring additional contributions claims it's true that in the particular circumstances of this case that's may have turned out to be more than a moral person a blessing but that's because of the particular factual circumstances of this case if not necessarily true as a general matter under out to you before you were saying there w in the context of a settlement that might not be something the settlement explicitly discusses might just say here are the actions that the party is required to take might be administratively easier therefore focus the contribution and on that rather than the section under which arose and the final reason is dead after one was written by the house energy and commerce committee and after the b was written by the house judiciary committee they may have simply had different ideas about how this provision should operate good morning i'd like to ask you a question about preemption as i understand the government's argument three b re three b liability for response action to include settlements with states under state law and then three c e o reed and all those settlements now have to be governed by federal law and just like that pretty much every state contribution regime is preempted  we have a brief from i think about two thousand five hundred and twenty six states and territories including some very different ones of everything from everybody from massachusetts to wyoming three you read b to be very broad and c doesn't say they have to be governed by federal law so maybe you could turn your attention there if you have some answer to that problem certainly do any contribution action brought under this paragraph shall be governed by such federal law what's he says not any contribution action concerning the subject matter so of course if a contribution actually is brought under this paragraph it's governed by federal law to you again you've read the paragraph which includes b i think you mean  very very broadly so i mean we're just bouncing through the statute not getting to the core of the problem no justice course which our point is simply if a party wants to bring a state law action under state law he can do that and it's governed by state law if he wants to bring it under this paragraph it's governed by federal law there's no preemption there because they're both avenues that are open to those parties now it's true the party could choose to bring a federal contribution claim with respect to a state law liability wanted to train your position and they could have said so and so in thinking about that framing of what's more likely here what do you make of your opposing counsel's suggestion that you're cutting off your right to sue here that there's a lack of fair notice traps for the unwary and i think that picks up also on some of justice priors questions in other words in thinking about how to think about what you're characterizing our silence here let's just assume for the nd minute that it is we should think about that consideration and how to interpret that here just to tell them no there won't be a trap for the going forward because the rule established by this court will apply across the country and everyone will know what they have to do do you agree that it could be trouble for the unwary though having looking backwards i agree that's a potential problem but that's always the case with any case the statutory interpretation you you have uncertainty about what the statute means before a court comes in and result the uncertainty that's no reason to a dog what we think is the argument i could say one more word however contesting your premise got to cory lidle and if a provision is silent the normal rule is to apply it according to its terms and not have to in for an unstated in our brief that asked to had to be interpreted to mean resolve circle liability the government was silent on that and inspiration and with respect i'm not sure it should be able to introduce new arguments and oral arguments having said that its position is telling that asking this court to devolve into the statutory history here if you want to go there as we say on page thirty of our brief the legislative history makes clear that congress had in mind circular liability secondly the consent decree explicitly reserves the united states right to bring any claim under any law including a surplus claim my friend's gift over paragraph forty seven dollars of the decree that explicitly says that i couldn't agree more with just a sort of my order that the harm addressed by the clean water act the discharge of pollutants into the water in violation of a permit is very different than the harm alleged by circle has dealt with by serco which is hazardous substances in the ground which itself is significant under common law contribution principles the bottom line is that the united states wants to have its cake and eat it too it's to go on under the clean water act in order to annoy inflate itself from liability for its own role with the order of allegations that must be accepted as true and now wants to block one's actions to recover a portion of it cleanup costs by saying that the parties settlement did clean with water act claim somehow bar to circle a contribution claim there's no basis in circle of the common law of contribution or anything else the government relied upon in its brief or today  al argument to allow the united states to get away with a ploy here thank you thank you counsel of the cases submitted