William H. Rehnquist: We'll hear argument next in No. 02-1192, Cooper Industries v. Aviall Services. Mr. Reynolds.
William Bradford Reynolds: Thank you, Mr. Chief Justice. May it please the Court: This is a case involving the Comprehensive Environmental Response Compensation and Liability Act, or CERCLA, which was enacted in 1980, as amended by the Superfund Amendments and Reauthorization Act, which was amended in 1986 and is known as SARA. Both the petitioner, Cooper Industries, and the respondent, Aviall Services, are potential responsible parties as that term is used in the statute. They are prior owners of property sites in Texas, and there was hazardous waste that was deposited on those sites prior to and during their ownership of the property based on the aircraft maintenance operations that went on at the site. Aviall Services proceeded to engage in cleanup activities on its own and undertook to do cleanup work on the property. It then sued the petitioner, Cooper Industries, for a recovery of those... of costs of cleanup, a contribution action both under 113(f)(1) of the Federal statute and also under State law.
Anthony M. Kennedy: It's... it's Aviall's complaint, not yours, so I can ask them. But what... what's your understanding or... or best conclusion as to why they didn't sue under 107?
William Bradford Reynolds: Well, Your Honor, the original complaint that they filed had a 107 action and a 113 action. They amended the complaint and went forward only under 113.
Sandra Day O'Connor: But why?
William Bradford Reynolds: I believe they--
Sandra Day O'Connor: I mean, what's going on?
Anthony M. Kennedy: Can you tell me why they did that?
William Bradford Reynolds: --Yes. I believe they did that because the Fifth Circuit and other courts of appeals have said that the 107 action is... for cost recovery is not available to one who has contributed to the contamination of the property, that that is a cause of action that can be maintained by a innocent landowner... let's say a homeowner who didn't have any participation and is... finds out the that property is contaminated... but not by a party that has actually contributed to the... to the contaminated condition.
Anthony M. Kennedy: But I had thought that the district court all but invited them to... to state a 107 cause of action, and they didn't accept the district judge's invitation, as... as I read the record.
William Bradford Reynolds: I... I think what the district court did is invited them to clarify whether they were proceeding under 107 or 113, and in the course of the colloquy at the district court, they made it clear that they were proceeding under 113 and that they believed that 107 was unavailable to them as a contributor to the contaminated property.
Ruth Bader Ginsburg: They... they said that as a matter of Fifth Circuit law. I think, is it not true, that the Fifth Circuit says these two, 107... and what's the other? 113. They're supposed to be merged in one claim. I thought that was Fifth Circuit law that the parties were obliged to follow.
William Bradford Reynolds: Well, I... I think what the Fifth Circuit has said is that if you have a... an action for contribution as one who has contaminated the property, then you must proceed under 113.
Ruth Bader Ginsburg: So they were doing what the Fifth Circuit--
William Bradford Reynolds: You can't proceed under 107.
Ruth Bader Ginsburg: --They were doing what the Fifth Circuit told them to do.
William Bradford Reynolds: Right.
Ruth Bader Ginsburg: And you can't fault a litigant for that.
William Bradford Reynolds: Well, I... I don't believe would I fault a litigant for that, Your Honor. The point is that in order to proceed under 113, the statute is very clear that a right of contribution by a responsible party under 113 is some... is an action that can be maintained during or following what is an enforcement action under 106 or 107 of CERCLA brought by the United States or by the... of by a State.
Ruth Bader Ginsburg: As I understand it, this cleanup was initiated because the State agency said you've got a contamination problem and if you don't do something about it, we're going to enforce our law against you. It's not that it just was... we're dealing... not just dealing with a volunteer. Isn't that so?
William Bradford Reynolds: I think that actually the cleanup of the property was initiated before the State got involved in... in conversations. I think that while they were cleaning up the property, the record shows that there were... there were communications with the State in connection with the activities in the cleanup, but it was--
Ruth Bader Ginsburg: Was one... was one of those communications you're going to do it, otherwise we're going to enforce our law against you?
William Bradford Reynolds: --I don't... I don't think that the State compelled the cleanup. I certainly think that the communications with the State suggested that... that it was a good that they were cleaning it up, and the State wanted the property cleaned up.
Ruth Bader Ginsburg: If--
William Bradford Reynolds: But it was not... there was no compulsory action by the State.
Ruth Bader Ginsburg: --If it's true that the State said you've got a contamination problem, cure it, why would we want to construe Federal law as saying don't clean up sooner, wait until, say, EPA goes after you? Why would it make any sense to construe the law that way? I... I would think that there would be every reason why you would want to read it to say clean up sooner, not later.
William Bradford Reynolds: I... I think you can construe this... the law to say clean up sooner. The law says... actually provides explicitly in 113(f)(3)(B) that if you settle with the State... if, indeed, the State says to you, clean this up and clean up it sooner, you can enter into a settlement with the State to... to engage in the kind of cleanup that satisfies what are the requirements for cleaning up these sites, and that if you do that, then you can come in and sue for contribution because 113(f)(1) gives you a right of contribution in those circumstances. So this is not a statute that discourages you from working with the State. If you are approached by the State and it says clean up property, it simply says that if you are approached by the State and you want to work with them, you have to do it pursuant to a settlement in order to get contribution. If you don't do that, the other avenue for contribution that the Federal statute allows is to proceed in a contribution action during or following an enforcement action by the Federal Government under 106 or 107.
Ruth Bader Ginsburg: But you might be sitting... EPA has got a lot of things on its agenda. You might sitting... be sitting around waiting forever till EPA comes after you.
William Bradford Reynolds: Well, there is a process that's available to everybody to enter into negotiations with EPA to clean up these sites and to... and to engage in settlements that would allow for contribution. The way that the provision was written... the 113 provision was added to the statute... it actually provides incentives for parties to come in, to enter into negotiations to get settlements with the Federal and State governments. And indeed, the... the statute provides for a right of contribution if you do that and also protects the party that's cleaning up from contribution suits that might be brought by someone else if they engage in those kinds of discussions and settlements. So the statute is one that has incentives built into it to work within the structure that... and the scheme that Congress devised so as to permit parties that are intent on cleaning up their... these sites to go ahead and clean them up and clean them up under the auspices and with the... with the supervision of the Government. And there's a reason for that because when CERCLA was first passed... and there was no contribution provision at that time... it was enacted because there wasn't a whole lot of voluntary action. And what Congress says is we need to get the Government involved. We need to get them to enter... give them the tools to get involved with these sites, to make sure they're cleaned up. We set out a scheme for it to be cleaned up in a way that means it's a meaningful, comprehensive cleanup, and if you follow that scheme that has been devised, you get the benefit of being able to pursue contribution actions once you do things in the way that that has been set up by Congress to ensure it's a... it's a comprehensive cleanup.
Anthony M. Kennedy: Do you... do you think there's a 107 action by one PRP against another?
William Bradford Reynolds: I... I believe that there's... there is a 107 action by a PRP who is what they have... the courts have termed an innocent PRP, one who was not involved in contributing to the... to the contaminated condition.
Anthony M. Kennedy: What about in... what about in this case?
William Bradford Reynolds: I do not think that there... well, I think that in this case the Fifth Circuit and most of the other circuits that have addressed it have said that if you are a contributor to the pollution, your remedy to go after other PRP's is to avail yourself of the contribution provision and that you don't have a right of action for cost recovery under 107 separate and apart from that.
Sandra Day O'Connor: Well, that question is open, is it not? I mean, even if we were to agree with you on the section 113, why wouldn't we leave it open as to whether Aviall can go under 107(a)?
William Bradford Reynolds: Justice O'Connor, I... I think you're... you are correct that that has not been decided by this Court.
Sandra Day O'Connor: Right.
William Bradford Reynolds: And there are... there are different courts, lower courts, that have spoken to it. Generally the lower courts that have spoken to it have said that with enactment of 113, the right of contribution provision is the one that should be the applicable way in which to proceed, and the Fifth Circuit has held that.
Anthony M. Kennedy: Well, but--
William Bradford Reynolds: But--
Anthony M. Kennedy: --if you're... if you're going to take the position below that a PRP can't sue, then maybe that would have some bearing on how we'd interpret 113.
William Bradford Reynolds: --Well, I... I think that it is clear, if you read 113, that there's nothing in 113 that would suggest that this particular PRP would have an ability to sue under 107. And 113 says you have your right of contribution during or following a 107, and there has been no during or following.
John Paul Stevens: Yes, but Mr. Reynolds, there's a savings clause, and... and conceivably one could read the savings clause as saying whatever Federal remedy was available between 1980 and 1986 is still available. And if one read it that way, then the question would be, could this very action have been brought in 1983 or 4? And I don't know. What... what's your answer to that question?
William Bradford Reynolds: My answer... I have two answers to that question. The first answer, Your Honor, is that prior to enactment of this amendment, there was recognized by the courts an implied right of contribution under 107 because the Congress had not addressed it.
John Paul Stevens: Right.
William Bradford Reynolds: That implied right of contribution was recognized in every case in circumstances where there had been an enforcement action under 107 and--
John Paul Stevens: Right. I... I agree with that. But the question, though, is whether this particular action would have been recognized when... when these... when the... the plaintiff is a potentially responsible party too.
William Bradford Reynolds: --There... there are no cases that we've been able to find that would have allowed for this particular action under 107. I think that that question raises a fundamental problem, as I see it, because a--
John Paul Stevens: No. I agree not under 107. Was there any implied remedy that was not specifically covered by a statute prior to 1986?
William Bradford Reynolds: --I--
John Paul Stevens: There was... a contribution was implied.
William Bradford Reynolds: --Contribution... the contribution is available in common law, but common law of contribution does not recognize contribution among joint tortfeasors. And that would be the kind of 107 action you're implying here. At common law, somebody who is a joint tortfeasor couldn't use contribution to go after another joint tortfeasor. What you had at common law was shared liability against a third party, the discharge of the debt to the third party, and then you go after the other liable tortfeasor. And I think that to assume or... or read into what 107 provided would have been... would have required the court to say that 107 is allowing for a right of contribution that the common law has never recognized. So... and the courts did not do that. The courts implied a right of contribution only with respect to the 106-107 action.
John Paul Stevens: Well, it's certainly true that cases that they labeled contribution cases was exactly as you define it, but I'm just wondering if there were not in fact some cases with facts just like this one which, without specific statutory authorization, the judge found an implied basis for allowing recovery.
William Bradford Reynolds: The only one where there was a suggestion that we could find, Your Honor, was in a district court in Florida that got dismissed because there hadn't been enough government action in the cleanup. Every other case that we've been able to find were cases where they implied a right of action for contribution in circumstances where you... you had a 106 or 107 action, and if they allowed for a cost recovery action under 107, it was because you were dealing with an innocent party that was seeking full costs. And what Congress did in SARA, in the amendment, is it's... it looked at that body of law that was out there, and it said it was going to make explicit what was implicit by reason of those cases. And... and it's quite clear that that's what Congress set about doing. The... the language of the savings clause says that the... nothing in the enabling sentence shall diminish a right of contribution in the absence of 106 or 107. I would submit to Your Honor that the question you've asked about whether there was a 107 cost recovery action would necessarily have been an action in the presence of 107. So that was not contemplated by this statute. If indeed a... there had been a... a line of cases of that sort, Congress was not looking at that to say that they were codifying that as part of their right of Federal contribution. That was not what--
Stephen G. Breyer: My understanding is... is right... is that 113 says that if there is a civil action under 107, then you get the contribution.
William Bradford Reynolds: --If there is a civil action--
Stephen G. Breyer: Well, and so then... and... and there might be because I was interested in... you said that it's true that the common law rule was no contribution among tortfeasors, but almost everywhere that's been changed, is my impression, either by statute or... or perhaps by judicial decision, so that now you can read the Restatement of Torts, and it seems to say that in most instances, for example, this one... nuisances, say. Nuisances. There... there would be a right of contribution in... almost everywhere under not old common law principles, but as the law has... has changed in the 20th century.
William Bradford Reynolds: --Well, I think if--
Stephen G. Breyer: Is that right? I want to--
William Bradford Reynolds: --I'm not aware of that, Your Honor. I think that the right of contribution, as it's understood today, still contemplates shared liability by... by the two parties, the... the tortfeasors, as against a third party. And... and to the extent that there may have been relaxation in... in that concept--
Stephen G. Breyer: --Oh, I see. I see.
William Bradford Reynolds: --it would only be in terms of whether you could bring it during the 107 action or following. And they have said that you don't need to wait until the 107 action in this case is completed. You could do it during. But I believe that is still the case, that for a right of contribution to exist, it's not one tortfeasor who can sue for recovery and contribution against another. It's a situation where you have liability, shared liability, to third... to a third party. And in those circumstances, the right of contribution is recognized. And that's what Congress set about to codify in the... in the provision.
David H. Souter: One of your... I think it was yours, rather an amicus argument for... for reading 113 is you say it would have a bearing on reading 107, and that was that Congress didn't want to permit suits prior to some definitive resolution of a claim, whether it be by settlement or whatnot. And the reason was that if... if the one joint tortfeasor could sue prior to that time, there would be liability against another who would still be open to action by EPA--
William Bradford Reynolds: Correct.
David H. Souter: --or even yet a third joint tortfeasor. Their response to that was EPA resolves lots of actions without complete cleanup, so that the possibility, even in contribution cases that you would allow, would be later EPA action against another polluter. What... what is your response to that, if I've got it right?
William Bradford Reynolds: I think, Your Honor, that where EPA is involved... and the reason that it's important it's involved is it... EPA assures that the cleanup that we're talking about is comprehensive, and when it gets involved and it--
David H. Souter: So you're really disputing the... the fact of... of their response? In other words, they say, look, EPA resolve... settles these things without complete cleanup, and you're saying that really isn't the way it works?
William Bradford Reynolds: --My... my understanding is that EPA does, indeed, require that the cleanup be done in accordance with the National Contingency Plan and the other requirements that they have in their... in their regulations.
David H. Souter: So that if... so that if it is done, there won't be further EPA action against yet another polluter for that site.
William Bradford Reynolds: Well, unless it's outside of or even in the... in the provision of the statute. If you have a settlement with EPA, there can be action against another polluter for some additional pollution that was not settled and taken care of with respect... if you have multiple sites, for example, with respect to the site--
David H. Souter: Well, if that's the... if that's the case then, whether... whether... even... even in a... in a case of contribution brought under 113, the person against whom contribution is obtained might still be liable to EPA if EPA later proceeds against that person.
William Bradford Reynolds: --But... but the point here that we were making in our brief and I think is... is a response to... to what you're asking... the... the point here wouldn't be inconsistent liability and it wouldn't be duplicative liability. It would be liability that would be attributable with the EPA's involvement for the specific cleanup that was in question, and you may be liable for some other aspect, but it wouldn't be the kind of duplication and multiplication that you'd get if you read the statute the way respondent--
David H. Souter: I see, yes.
Ruth Bader Ginsburg: Do I understand your... your position correctly that a State or a Federal administrative order won't do or a State or Federal threat of enforcement won't do, that the only thing that will count is a settlement... a signed settlement agreement, whether it's between the State administrator or the Federal administrator, but just the... the mere order that you clean up, threat that we will enforce if you don't, that that doesn't count?
William Bradford Reynolds: --Your Honor, certainly for purposes of this case, I'm not sure that needs to be resolved. I would say this, that in a settlement you can get contribution, if you have a civil action. The courts have looked at whether an administrative order under 106 that is not necessarily reduced to a... a judgment, whether that would qualify as a 106 civil action.
William H. Rehnquist: Thank you, Mr. Reynolds.
William Bradford Reynolds: And there have been different views that have been addressed on that.
William H. Rehnquist: Mr. Minear, we'll hear from you.
Jeffrey P. Minear: Mr. Chief Justice, and may it please the Court: The United States submits that section 113(f) does not allow contribution in the absence of a settlement or civil action for three reasons. First, that's exactly what section 113(f) says. Second, that's consistent with the traditional understanding of the concept of contribution. And third, that will lead to the most efficient mechanism for cleanup and settlement.
John Paul Stevens: Mr. Minear, the... I think the respondent accuses the Government of changing its position in this case. Would you tell me whether you did change a... your position at all, and if so, what is the difference between your former position and your present position?
Jeffrey P. Minear: Yes, Your Honor. This case presents the first time that the question of whether a person who is a whole... wholly a volunteer is entitled to contribution. We've not addressed that issue before, except in this case.
Ruth Bader Ginsburg: Wholly a volunteer? There was... there was a State agency in the picture.
Jeffrey P. Minear: Yes, there was, but in this case there was no action that we understand that actually compelled the... Aviall to clean up the site. We do... do not understand that there was a enforcement action that was brought against them. If I can continue--
Ruth Bader Ginsburg: There was a threat of enforcement if they didn't clean up, as I understand.
Jeffrey P. Minear: --Yes. I understand there was a threat of enforcement. But if I can continue to answer Justice Stevens' question. Respondents in the red brief, pages 13 and 18, they cite two quotations from one court of appeals brief that was filed about 8 years ago in a case called Centerior. This was a case that was filed as an appellee, so of course, the Solicitor General did not review the brief. I would note that the quote on page 13 is consistent with our current position. As we said then and we say now, that in order for a responsible party to sue another responsible party, they must proceed in contribution. That's what the quote on page 13 of the red brief says. On page--
John Paul Stevens: There has been no change in position.
Jeffrey P. Minear: --On that point, there's been no change, and in fact we repeated it to this Court--
John Paul Stevens: --whether there was any change of position and what was it and would you explain--
Jeffrey P. Minear: --Well--
John Paul Stevens: --what it was and why?
Jeffrey P. Minear: --Yes, exactly. I'm getting there. But I think it's important to... what they're characterizing as a change in position is a consistent position. I want to point out that we took that very position in the Pinal Creek invitation brief that we filed in this case that's cited in page... at page... footnote 10 of our invitation brief here and footnote 9 of the... the brief on the merits. The second place where they claim an inconsistency is on page 18 where they cite that... the statement in the Centerior brief that says that we are not saying that 113(f)(1) is the only mechanism for allowing contribution. And that is in fact true, but we also would say that a settlement would allow as well... would allow contribution as well. Ultimately, the Centerior brief did not address the issue that we have here: what happens in the absence of any type of enforcement action whatsoever or a settlement? So in fact, this is the first time we've addressed the issue. Now, in terms of our internal deliberations in the... in the Government, there might well be people who take a different view with regard to the position we've taken here from the perspective that the more suits that are brought, the more cleanup there might be. But ultimately, our obligation is to... excuse me... is to construe the statute according to its terms. And then as Mr. Reynolds pointed out, section 113(f)(1) makes quite clear that a contribution action can only be brought in... in the presence of a pending or ongoing 106 or 107 enforcement action.
Ruth Bader Ginsburg: Mr. Minear, I was just reading from this Government brief, which you said is consistent with your current position on that point. The plain language of CERCLA 113(f)(1) is not restrictive, i.e., it does not say that a contribution action may only... you read the word only. That's not in the statute... be brought during or following a civil action under CERCLA. I'm reading from 32A of the red brief.
Jeffrey P. Minear: Yes. And Your Honor, we'd still say that it does not say that it may only be brought in the... in the case of a... in the absence of a civil action or a... a civil action under 106 or 107. It can also be brought in the case of a settlement as well. So that's what I mean. This brief is not inconsistent with what we're saying here. It actually addresses a point that's different where we have made a... a modest change in position with regard to an issue that's not before the Court. This brief suggests that contribution would be available in the face of a 106 order. It implies that. It doesn't come right out and say it, but that's certainly the implication of the brief. Now, there's no 106 order in this case. And the problem with allowing contribution in the case of a 106 order is that section 113(f)(1) speaks of civil actions. It doesn't speak in terms of administrative orders. It does allow contribution in the case of an administrative settlement. So if, for instance, the Government issues an administrative order and the party agrees to comply with that administrative order through an administrative order on consent, that would entitle the party to contribution. Now, the reason why this is important is because it's our view that contribution should only be available consistent with the common law principle of contribution in the case in which there's an extinguishment of the underlying liability. That is the very essence of contribution, that there is some third party liability that is being resolved. And what 113(f) requires is that... that the liability for the State or Federal Government to be resolved, in whole or in part, through either an enforcement action or a settlement. Now, this position is entirely consistent with the principles of the... the common law, and in particular, I'd point to the Restatement Third of Torts, which in comment 23 makes clear that in order to have contribution, you have to extinguish the underlying liability. What's more, this position also is... does not discourage voluntary settlement. All it requires is that if a party wishes to voluntary clean up a site and also seek contribution, then it needs to reach a settlement with the Federal or State government to ensure that the cleanup is going to be done in accordance with the National Contingency Plan. The National Contingency Plan is a volume of Federal regulations that specifies how cleanups need to be done. By reaching a settlement with the Federal Government on... on the... the details of the cleanup, it relieves a Federal court of having to make that determination in a contribution action. As it stands right now in a case such as this, the Federal court is going to be forced to make the determination of whether or not there is compliance with the NCP. And that's a highly technical issue and it's an issue that ought to be addressed in the first instance by the Federal or State officials who are experts in these matters. As it stands right now, if there is no extinguishment of the underlying liability, the court is going to have to... the Federal courts are going to have to resolve these issues without the guidance of those people who are most knowledgeable on that very issue.
Ruth Bader Ginsburg: Mr. Minear... Minear, I have a practical question. It... it seems like EPA has higher priorities, properly has higher priorities than... than to be making deals with each person who wants to clean up a contaminated site. And you said you have to get the settlement. How mechanically... how easy it is... how easy is it for someone in the position of Aviall Services to say, EPA, we've been told that we've got a contaminated site? Cooper contributed to it. We'd like to get this cleaned up quickly. Would you give us a settlement?
Jeffrey P. Minear: Well, we assume... this is the... the warnings about this site were originally brought by the State officials, and we assume that the State officials would have happily entered into a settlement agreement that would have obligated Aviall to clean up the site. There's nothing in the record that indicates the State that took notice of this site would not have been willing to do so. And under 113(f)(3)(B), an administrative settlement or a judicial settlement with the State would entitle them to contribution. What's more, they can obtain contribution under State law. And in fact, Aviall indicated... and it's cited at the petition appendix, page 99a, that this was primarily a contract action. The CERCLA action was brought primarily--
Ruth Bader Ginsburg: But as far as... I just want to know if it's a realistic choice.
Jeffrey P. Minear: --Well, we think that in the case... that obviously, EPA has many things on its plate. And if the... there might be cases where, in fact, the transaction costs are such that EPA will believe it was better addressed by the State rather than the Federal Government. But in those cases too, it's likely that a suit in contribution is going to entail very high transaction costs as well, and so in those cases in which contribution is most likely to be sought, those cases that are large, major settlements, EPA is going to have the highest incentive to pay attention to--
Ruth Bader Ginsburg: But you say the whole... this whole thing could have been cured if Aviall had followed up with the State enforcer and said, give me a settlement agreement.
Jeffrey P. Minear: --Yes, that's absolutely right. Under 113(f)(3)(B), if they had entered into a judicial... administrative settlement with the State, that would entitle them to contribution. What's more, under the State law, which is Texas Health and Safety Code 361.344(a), all they need for State contribution is to engage in a cleanup that's been approved by the State. So there are plenty of avenues for cleanup in these cases and for contribution through various mechanisms. CERCLA is not the only mechanism that's available here. And as I pointed out before, the parties made the... have stated this was primarily a contract action. This began as a contract action in which CERCLA was only pled in order to engage... to obtain Federal court jurisdiction. I'd like to address one other issue here that's been raised by the parties, and I assume that respondents will raise that. And that is the question of Federal cleanup. And I would point out that CERCLA is only one of many programs that are provided to clean up Federal sites. The reply brief of petitioner cites, for instance, the defense environmental reparation program, 10 U.S.C. 2701, in which Congress directly appropriates funds for cleaning up formerly used defense facilities. There are many mechanisms in which the United States provides for that cleanup apart from CERCLA and it does it in CERCLA as well. Thank you, Your Honor.
William H. Rehnquist: Thank you, Mr. Minear. Mr. Faulk, we'll hear from you.
Richard O. Faulk: Thank you, Mr. Chief Justice. May it please the Court: The very first thing I want to do is clear up what I consider to be the two most persistent myths in this case. The first one is that we didn't bring a 107 action. Justice Kennedy asked about it. Justice O'Connor asked about it. We pleaded this case. I pleaded this case. I drafted the complaint in this case. I drafted the fifth cause of action in that case. And in this case, we pleaded specifically on the very first page of the complaint a claim under 107 and section 113. When I pleaded the fifth cause of action, which was liability under CERCLA... that's how it was nominated... I pleaded that this was a cause of action brought pursuant to section 107 and section 113(f). Now, why did I do that? I did that because the controlling law of the Fifth Circuit at the time, as Justice Ginsburg recognized, specified that the cause of action for contribution under CERCLA is derived from section 107 in the first place, and that the mechanism for that, for bringing that cause of action in certain circumstances is governed by section 113. And so, yes, we pleaded a 107 action. We do not have... there is no right of cost recovery under CERCLA by contribution or otherwise.
Stephen G. Breyer: It doesn't... what it says... in the complaint here that I have, it says pursuant to CERCLA... then you cite 113... Aviall is entitled to seek contribution from Cooper as a person liable or potentially liable under CERCLA 107. But you don't say liable to you. You don't say you're bringing it under 107. I mean, obviously, they are a person who's potentially liable under 107, but is that what you mean by asserting a 107 claim? I mean, I could go sue them and claim they're a person liable under 107. Anybody could in the world, and is that what you're doing there, saying--
Richard O. Faulk: I'm asserting a consolidated claim under section 107 and 113, exactly as the Fifth Circuit--
Stephen G. Breyer: --You say they are a person who's liable under 107. You say you're bringing the action under 107? No. You say you're bringing it under 113.
Richard O. Faulk: --Well, Your... Your Honor, I... I would just respectfully disagree with the way--
Stephen G. Breyer: All right, I see. But I have the right language anyway, and I better read it again is your point.
Richard O. Faulk: --I... I would suggest that's important, and it's also important to review the colloquy that we had with the district court when the district court--
John Paul Stevens: I just... I just reviewed that colloquy, and there you said you did not draft the complaint.
Richard O. Faulk: --Well, I... I drafted the amended complaint, Your Honor.
John Paul Stevens: Oh, okay.
Richard O. Faulk: The original complaint was not the one I originally drafted. But the actual cause of action that was asserted in the fifth cause of action I did, in fact, draft. The colloquy that went on in the district court, Judge Fitzwater tried to pin me down on the question of whether or not we had a 107 cause of action, and I very, very specifically cleaved to the idea that we were asserting the blended cause of action that was not only recognized by the court in Geraghty v. Miller in the Fifth Circuit, it's also recognized by this Court in the Key Tronic decision, which is... wasn't even mentioned by my opponent during the discussion. But in Key Tronic, which was a case that involved the situation where someone had brought a cause of action trying to recover. A PRP, a clear PRP had brought a cause of action pursuant to State enforcement to recover the costs associated with it. This Court recognized that section 113 had a cause of action, recognized the cause of action, but that there was a similar and somewhat overlapping cause of action within section 107 for the same relief. What we tried very carefully to do, Your Honor, was to plead ourself into the overlap.
Sandra Day O'Connor: Well, in this case, has the court below directly ruled on whether there's a 107 cause of action here?
Richard O. Faulk: No, Your Honor, I do not believe there has been a specific ruling.
Sandra Day O'Connor: So that's still open.
Richard O. Faulk: Your Honor, and we have... we have asserted that if this Court finds that, in fact, we're not entitled to recovery under 113, we should be entitled to a remand to have the issue of the 107 issue resolved. And so we do have that issue remaining to be resolved. Let me bring up the other persistent myth in this case and that is that we engaged in a voluntary cleanup. I realize the... the Court's issue that it phrased as it accepted the certiorari was, in fact, that there was a voluntary issue involved. Aviall did not do this voluntarily. Aviall acted under a directive of the... of the State government very specifically in a proceeding that we received letters for. We've cited that in the brief. I believe it's on page 6. All of the record citations that show how the State of Texas said clean this up or else.
Antonin Scalia: Did... did you object to the question presented in the petition on that ground, that the word voluntarily in it was... was inaccurate?
Richard O. Faulk: No, Your Honor, we did not object to it.
Antonin Scalia: Well, I mean, we take the questions that are presented when the parties don't... don't object to it. And... and the question presented is whether a party who's not been the subject of an underlying civil action, blah, blah, may bring an action to recover costs spent voluntarily to clean up properties. That's what I thought this case involved, and... and it's the way I'm going to decide it.
Richard O. Faulk: I understand, Your Honor. The--
Sandra Day O'Connor: I guess you do admit, though, that no civil action had been brought against Aviall.
Richard O. Faulk: --Absolutely, Your Honor. That is... that is--
Sandra Day O'Connor: So that much is clear. And... and section 113(f) says, any person may seek contribution from any other person during or following any civil action under 106 or 107(a).
Richard O. Faulk: --That is what the first sentence says, Your Honor.
Sandra Day O'Connor: So how do you fit yourself within that provision?
Richard O. Faulk: We fit ourself not within the first sentence--
Sandra Day O'Connor: No.
Richard O. Faulk: --of that provision at all, Your Honor, but we fall within the last sentence of that provision because the... the last sentence of that provision specifically provides that we can pursue the right... not any right, not multiple rights, but the singular right of contribution, which is specified in that... in... in section 107. It's... it's referring back very clearly to 107. It is not, as the petitioner says, referring to State law. This is not a savings clause for State law. CERCLA already contains two saving clauses for State law. Congress surely knew, when they were enacting the statute, exactly how to write a savings clause--
John Paul Stevens: Where does the right come from?
Richard O. Faulk: --The right is derived from section 107 in the first place, Your Honor.
Stephen G. Breyer: It says, nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a section... in the absence. Now, does that create the right?
Richard O. Faulk: No, Your Honor, it does not. I'm... I'm saying it... it expressly recognized and maintains and confirms the preexisting right under 107, a right that had existed under--
Stephen G. Breyer: Your argument is that the first sentence says that you or anybody can get contribution following or during a civil action under 107. And then the last sentence means anybody can get a right for contribution any other time as well.
Richard O. Faulk: --Well, the last--
Stephen G. Breyer: This isn't much of a section. I mean, it's sort of interesting what it's trying to do there.
Richard O. Faulk: --Your... Your Honor, I... I cannot... I cannot explain the oddity of the section, as... as I have heard in some quarters. However, just because it's odd doesn't mean it's not plain.
Stephen G. Breyer: No, no. But in your view that's how we should read it. We should read it as if it said if you want $1,000, go at a certain... go any... sorry. You understand what I'm driving at.
Richard O. Faulk: I know what you're driving at, and if I may, I'd like to reply to it. It... it really is... it really is... we have to look at these sections together, but we also have to take a look at the context in which section 113 was enacted. At the time section 113 was enacted, the Government was proposing that contribution only be allowed to occur when they brought an action at the time the judgment was rendered. They didn't want contribution actions within the context of their own actions frustrating or slowing down the process of enforcement. And so what happened was that Congress inserted the during action only to govern the issue dealing with the right of contribution when an action was pending. Congress did not--
Antonin Scalia: Why... why isn't a perfectly adequate explanation of the last sentence that it was referring to the State causes of action? And indeed, you... you assert a State cause of action here.
Richard O. Faulk: --Well, one... one reason, Your Honor, is that there are already two savings clauses specifically inserted in CERCLA dealing with State causes of action and the rights of parties to pursue State causes of action.
Antonin Scalia: But this would be a very logical place to... to repeat it, even if it is somewhere else. You're... you're creating a Federal cause of action under certain narrow conditions, and the last sentence says, nothing shall diminish the right of any person to... in the absence of a civil action. It doesn't say we're creating a right. It... shall diminish the right. So if there is any other right, we do... this does not preempt any... any State causes of action. I think it's admirably drafted. I don't think you have to be ashamed of how to explain it. It... it explains itself.
Richard O. Faulk: However admirably drafted... and I... I respect Your Honor's opinion... the limitation of that to State causes of action is entirely inappropriate given the language of the statute. It may, if the Court chooses, be declared to deal with State causes of action, but there's no reason that it excludes preexisting Federal causes of action.
David H. Souter: Well, there's... there's one argument, isn't there? And that is, in the first sentence, it speaks of... of a civil action under 107. Then in the savings clause, it says, nothing, et cetera, shall diminish the right to bring an action for contribution in the absence of a civil action. It seems to be talking, you know, under... of 107... it seems to be talking about something other than 107.
Richard O. Faulk: I... I don't agree, Your Honor. I don't think... I don't think that's a... that's a proper reading, respectfully, of the statute. It's talking about the absence of a 107 action pending at the time to say the action is--
David H. Souter: That may be what it means, and... and maybe that's the way it ought to be construed. But it's not clear, is it?
Richard O. Faulk: --I... I think... to... to me, Your Honor, it's very clear. I think it's very clear that it's definitely saving causes of action preexisting under 107 because it uses the term, the right of action, not whatever right of actions exist, not any right of action. It's specifically referring to a specific cause of action, and the only other cause of action--
William H. Rehnquist: Well, it... it says... it says, the right of any person to bring an action. That's a little different than saying what you just said.
Richard O. Faulk: --Well, it depends, Your Honor, how we... how we... if we have to go back to Key Tronic, which I... I suspect we do, the question of whether any person is the person entitled to bring a cause of action under 107, and I think this Court has held that that is implied under section 107.
Stephen G. Breyer: Have you got any other statute like this? I... the... it's sort of like... I have found my example. You see in the newspapers sometime, if you present this coupon to Brooks Brothers, they'll give you a 20 percent discount. And then it says, and if you don't present the coupon, we'll give you a 20 percent discount. [Laughter] So it's sort of like that, as you're reading it. And... and I... I find it hard to think of any other example in the statute books that's like that.
Richard O. Faulk: Well, first of all, Your Honor, I will... I will say that there is absolutely no statute anywhere like CERCLA. [Laughter] And I think all of us would... would agree with that. The... the issue that you're trying to... that you're recognizing here is that the statute is permissive. The statute is in fact permissive. There is nothing in the language of the statute that suggests it's restrictive. If, as this Court held, there is a preexisting right of action under 107, then this statute impliedly repeals it. Now, implied repeals are distinctly disfavored by this Court. It's certainly not consistent with the plain language that some cause of action that existed under Federal law prior to the time CERCLA was enacted has been impliedly repealed by the statute. The purpose of this statute was to grant the broadest possible rights of contribution under CERCLA to serve CERCLA's goals and objects, and those are twofold. The first is that it's designed to facilitate the cleanup of contaminated sites. The second is that it's intended to hold persons responsible for the contamination responsible. To take... our interpretation is not at war with the language of the statute. Petitioner's is. Under petitioner's situation, there is a clear loophole. There is a clear vacancy in the statute--
David H. Souter: What... what is your answer to their response to the loophole argument that, in point of fact, you can... if you want to undertake this cleanup, all you've got to do basically is go to EPA and say, look, we want to get into circumstances in which we can have a settlement with you so that during or after it, we can... we can go for contribution? What's your answer to that, that you have an avenue to get where you want to go?
Richard O. Faulk: --My answer, Your Honor, is that the very purpose of CERCLA, from its inception, was to arm the Federal Government and private parties with powers sufficient that would motivate voluntary cleanup action without Federal involvement. And that would be an antithesis of the goals of the statute.
David H. Souter: Well, that may... how about the answer to the practical question that Justice Ginsburg raised with your friend on the other side? Is it easy to do what they suggest, or is it difficult to do what they suggest?
Richard O. Faulk: In my experience, Your Honor, it is not easy to do. You stand in line. And the question of standing in line while contamination exists when you're within the distance of a lake, at the end of runways, near the place where this contamination took place, when you're in a situation where there is movement and concern with groundwater--
Ruth Bader Ginsburg: What about the State agency? I mean, the State agency was telling you you got a problem, clean it up. Why wouldn't such an agency be an easier place to get a settlement from than EPA?
Richard O. Faulk: --Your... Your Honor, the question of both Federal and State agency assumes the resources and ability and timing and staffing of the agencies to get to the point, and... and get it done in an expedited way. I am not saying that it is not an avenue that could be pursued. What I am saying is that the entire purpose of CERCLA was to avoid that. The purpose of CERCLA was to get parties involved in voluntary cleanup so that this country could have uncontaminated sites, so this country could have environmental protection and cleanups that serve the interests of--
Sandra Day O'Connor: Well, perhaps Congress should have used different language. That's our problem. We can't make it up.
Richard O. Faulk: --Your Honor, I think the language that Congress used clearly serves the same purposes and goals within its plain language. We're... we're here under... if anyone is here under the plain banner language here, we are. We are not suggesting that you have to add the word only to the statute in order to get to the plain meaning. We're not suggesting that you have to add the words, under State law, to the statute to get to the plain meaning. We're giving effect to every single term in the statute, all the way down to the term the in the statute, as I previously expressed.
Antonin Scalia: No, but you're... you're effectively reading out of it the... the limitation, during or following any civil action under section 9606--
Richard O. Faulk: I would--
Antonin Scalia: --because you're saying any person may seek contribution during or after and they may also seek contribution any other time. I mean, why... why have the limitation? You're just reading it out. It makes no sense.
Richard O. Faulk: --Your Honor, I'm not reading anything out. I'm reading everything in.
Antonin Scalia: Okay.
Richard O. Faulk: And I think there's a very big difference.
Antonin Scalia: What... what function does during or following any civil action under section 9606 of this statute serve--
Richard O. Faulk: As... as the--
Antonin Scalia: --given... given that you believe the last sentence means there's a cause of action even when it's not during or following any civil action?
Richard O. Faulk: --As the amicus briefs explained, Your Honor, in the Arco brief at page 20 and in the DuPont brief at page 15, the... at the time this statute was being enacted, the purpose of adding during into the statute was to preclude the Government from forcing people to wait until after judgment was rendered to get contribution in enforcement actions because it was the Government's position... and this... and the... and the actual document from the Government is... is available in the brief. It's House document No. 9932 at page 23. That is the position the Government was taking, and that's why that specific term was added.
Antonin Scalia: During. What about or following? Why was that--
Richard O. Faulk: Or follow... or following, Your Honor, was... was something that was in the bill to begin with. It was added--
Antonin Scalia: --But why?
Richard O. Faulk: --Or following was in the bill. They... they were providing for the right of contribution after judgment, but during was added solely for the--
Antonin Scalia: Why... why do you need it? Why do you the or following, at least, if you have that last sentence--
Richard O. Faulk: --I--
Antonin Scalia: --that says there's a right of contribution? Other... other--
Richard O. Faulk: --Your Honor, I have to take the words of Congress as they are, as... as we all do. I can only say that there's nothing in the statute that says it's restrictive.
Stephen G. Breyer: So your point is it's emphasis. Is that what it is? It's emphasis because in fact during or after, the word during adds nothing. The word, or after, adds nothing. If you give the last sentence the reading you're giving it, that you say in the historic circumstance where everybody was fighting about this, Congress put it in really to emphasize that.
Richard O. Faulk: Well--
Stephen G. Breyer: Is... is that basically the point? Because they were fighting the Department of... whoever, the DOJ or somebody who had a different view of it and they wanted to emphasize it.
Richard O. Faulk: --If I... if I can elaborate. The first part of the statute deals with the rights of parties at the time an action is pending. The second part of the statute, the last sentence deals with the rights of parties at the time the action... before the action has been filed. It permits parties without Federal involvement to do things together in... without EPA involvement--
William H. Rehnquist: Well, but it... the part about during or following, certainly following any civil action means after that action is concluded.
Richard O. Faulk: --Yes, Your Honor. I... I would agree with that. I think I've addressed the... the persistent issues that we have, but I want to talk a bit about the issue of the may being permissive as opposed to be mandatory. I'm not going to stand up here and tell the Court that there aren't statutes under certain circumstances where this Court hasn't or might not construe a statute to be mandatory, which uses the word may. On the other hand, may is... it's... that's not the natural and normal and plain meaning of the word in... in this context. In this context, we have a permissive statute. We have a remedial statute. We have a statute that's intended to achieve a purpose that is intended in a broad, remedial sense. And that purpose is consistent with the goals and objectives of the statute. This Court should not consider the statute standing alone in a vacuum. One of the problems I have with the argument of petitioner here is that they construe the common law like a statute and they construe the statute like the common law. They construe the common law as though it's rigid, and even though CERCLA says you deal with the... not only the law as it existed at common law in 1980 or 1986, but you deal with it in an evolving basis. And it's very important--
William H. Rehnquist: Where does it say that, that you deal with in... in an evolving basis?
Richard O. Faulk: --There... there is a section of the statute, and if it comes to me in a moment... it's in my brief and it's cited, Your Honor, that you deal not only with the common law at the time, but at the time as it evolves. And it specifically instructs the courts, in construing the statute, to deal with the evolving common law. Common law is evolving. Common law is based on experience going back to the old Justice Holmes quote. And we have over 20 years' worth of experience with this statute in a system that has worked, in a system that is working to achieve the purposes that CERCLA provided. Surely one of the important points in considering this statute is whether or not the interpretation that has been applied for 20 years, that has governed the settled expectations of the parties for all this time, that interpretation should inform this Court as to whether or not the interpretation we are asserting is consistent with the law. And it is. It's not at war with the statute. Petitioner's interpretation is clearly at war with the statute. It clearly frustrates the parties' purposes and delays the expeditious progress of... of cleanups. So if you're dealing with a mandatory or a permissive construction here, Your Honors, I think the... the permissive construction, which achieves the purpose of the statute, which is entirely permissible under the plain language of the statute, however inartfully it may be drafted, is the one that should be chosen. There were a couple of other points, if I may bring them up. Petitioners and the... the United States Government concede in their... in their brief essentially that section 113, the last savings clause, preserves any right of contribution that is separate and apart from 113. That refers to the 107 cause of action. That is, in fact, a matter of declaration in their briefs. So if we're entirely correct on that point, then we certainly have a right to proceed here, and I think under those circumstances, our interpretation should be followed. The purpose of what we're doing here is to get the Federal Government out of the picture as soon as possible. Here we will have a multiplicity of litigation. People will be going to the Federal Government to get orders from the Federal Government because... and to get the Government to sue them, only to disobey those orders, after they're entered, to get the Government to sue them. There's... this artificiality of the system that petitioner is advocating here really belies the entire purpose of Congress, and I would suggest to the Court that under the circumstances, the judgment of the Fifth Circuit should be affirmed because the achievements that it... it wrought are in fact consistent with the statute's purpose. If the Court has no further questions, those are the... my concluding remarks.
William H. Rehnquist: Thank you, Mr. Faulk. The case is submitted.
Speaker: The honorable court is now adjourned until Tuesday the twelfth of October at ten o'clock.


Earl Warren: Number 210, United States of America, Appellant, versus the Atlantic Refining Company et al.
Robert A. Bicks: Mr. Chief Justice, may it please the Court. The United States appeals for an order -- from an order entered by the District Court over the District of Columbia. That order first denied the United States' motion directed against the Arapahoe Pipeline Company to carry out an Elkins Act judgment provision. And at the same time, the Circuit granted the motion made by two other pipeline companies to construe that same provision. Both motions post essentially the same issue and as a perhaps, helpful preliminary focus for the statement of the case to come. That issue maybe simply put at the outset. The issue involved interpretation of an Elkins Act judgment provision limiting to 7%, dividends payable by the bulk of this country's oil pipeline to the shipper-owners, that is to the major oil company that owned oil pipelines and shipped oil over. On the one hand, the United States urges that the judgment permits each shipper-owner only a fair return on his investment outlay of his share in the pipeline's total capitalization. On the other hand, defendant's urge and the court below agreed, the judgment permits each shipper-owner not only a return on his investment outlay, but an equal return on investment outlays made by others. That is on loans to the pipeline not by the shipper-owner but by third parties. The defendant's construction applied to the facts of Arapahoe would permit each of Arapahoe's two shipper-owners a more than 70% return on their less than three-year old investment. This construction issue takes on the meaning in light of a brief, very brief march of those events that preceded entry of the Elkins Act judgment at issue. The Elkins Act recall made oil pipelines common carriers and sought to ensure equal access for all oil shippers to oil pipelines at equal cost. To this end, the Elkins Act barred the granting or receipt by or through any means or device, whatsoever, of rebates, offsets or concessions from published tariff rate. The chief purpose of the Elkins Act that this Court put it in the Union Pacific case at pages 461 and 462 was to eliminate rebates, concessions and discrimination from the handling of commerce to the end that all persons and places might carry on their activities on an equal basis. In fact, favoritism which destroys equality between shippers, however brought about it, is at an end. It was with this purpose uppermost, that the United States proceeded under the Elkins Act on December 21, 1941. That complaint named as defendant from 52 oil common carrier pipelines and their shipper-owner parents that is the major oil companies that own the pipelines and the 27 shipper-owner parents, that is the major oil companies that own the pipelines and shipped oil. The complaint alleged that although the oil company parents were normally paying published tariff rates, they were in fact receiving rebates, offsets or concessions in the guise of dividends and earnings from their pipelines. On the same day, that complaint was filed. The judgment here at issue was added. That judgment in its crucial portion which, may I suggest, is found on page 10, the middle of page 10 of volume 1 of the record before you. That judgment, in its crucial portion, limits payments by a pipeline in any year to its shipper-owner to its share of 7% evaluation.
Felix Frankfurter: Is it at all -- is it all relevant or is it disclosed who drew this decree or just a joint effort between the Government and the party?
Robert A. Bicks: That matter is not in the record.
Felix Frankfurter: Not in the record, all right.
Robert A. Bicks: And the provision goes on to specify that dividends paid in accord with that limitation formula shall be deemed permitted insofar as the Interstate Commerce and Elkins Act is concerned. Evaluation, of course, is defined by -- by precisely as the latest final evaluation made by the Interstate Commerce Commission of property owned and used for common carrier purposes by the oil pipeline. The word, "seven percent" need no definition. But undefined, however, are the words, "its share." And it's on the interpretation of the words, "its share" that the controversy before this Court focuses. The United States' position is that the dividend limitation formula, the words, "its share of 7% evaluation," were meant to permit each shipper-owner only a fair return on his capital outlay, his share of the pipeline's total capitalization. To this end, the United States would define the words, "its share," to relate not only to other stockholdings, but to the pipeline's total capitalization for a fair measure of capital outlay for the purpose of gauging a fair return on capital outlay, must relate not only to other stockholding, but to the entire bundle of investors rights, whether labelled, equity or debt, which make up the pipeline's capitalization. Defendants, on the other hand, urge and the court below agree that the dividend limitation formula, the words, "its share of 7% evaluation," permit each shipper-owner a return not only on his capital outlay, but an equal return on capital outlays made by others that is on loans, to our pipelines, not by the shipper-owner, but by third parties. To this end, defendants would define the words, "its share," to relate only to other stockholdings in the pipeline. As a result, as soon as the pipeline increases its capitalization by borrowing from a third party permissible dividends to the shipper-owners jump immediately and precise proportions of the money borrowed by the pipeline from third parties. This, despite the fact that the increase in capitalization stands from no new capital outlay, no new out-of-pocket capital contribution by the shipper-owners. I think one brief factual or hypothetically should draw clear the difference between the two constructions before this Court. Assume, two oil companies set up a pipeline, assume further that each of the oil companies owns half the stock of the pipeline and assume finally that the pipeline incurs no debt. In these circumstances, both parties agreed that each shipper-owner's permissible dividend would be equal to one-half that is the share of its stockholdings -- of the total stockholdings in the pipeline of 7% evaluation. However, as soon as the pipeline incurs debt, the difference in the two constructions becomes significant. Assumed to carry on with our hypothetical that the pipeline owned equally by two oil companies incurs that as did Arapahoe equal roughly to eight times the value of the stock bought by the shipper-owner. In all circumstances, according to defendant's construction, permissible dividends to each shipper-owner would jump immediately eight times as the pipeline borrows capital equal to eight times -- borrows from third party's capital equal to eight times the stock owned by the shipper-owner, so dividends to the shipper-owners increase immediately eight times. This, despite the fact that the increase in the pipeline's capitalization, represents no new capital outlay, no new capital contribution by the shipper-owner. As a result, divorced -- divorced from the measure of each shipper-owner's return is his capital outlay -- his capital outlay, his share in the capitalization. There is little but no relation to the measure of his return from the pipeline. This result, we urge, is at odds with the judgment's basic rationale. This judgment, after all, not only specifies a dividend limitation formula, but in addition, makes clear that dividends paid in the court with that formula -- and I'm quoting from the last line of paragraph three on page 10 of volume 1, "Shall be permitted insofar as the Interstate Commerce and Elkins Act are concerned. The judgment's essential purpose then drawn from the Elkins Act, which gave it life, was to equalize net transport cost, equalize the net transport cost between on the one hand shipper-owners and on the other hand, independent oil shippers, shippers with no ownership interest in pipelines. To this end, the judgment sought to limit each shipper-owner to a fair return on his capital outlay, a return, if you will, that reflected simply the cost to the pipeline of the shipper-owner's capital contribution. The shipper-owner's capital cost to the extent that the judgment is construed to limit each shipper-owner only a fair return, on his capital outlay, his net transport cost become the same, become the same as the independent oil shipper with no ownership interest in the pipeline. And as a result, no discrimination, no concessional rebate, no unfairness result. However, to the extent that each shipper-owner's dividends are related not only to his capital contribution, but are measured by capital contribution that's made by others, that excess in return is deemed by the judgment to be a kin for discrimination, an offset or a rebate, at odds with this judgment in the Elkins Act. Stated other ways, this judgment had two really basically simple purposes, two basic purposes that are twinned, but related. Those purposes were first, on the one hand, to limit each shipper-owner to a fair return on his capital outlay in order that the second, on the other hand, independent shippers, shippers with no ownership interest to the pipeline, might be protected against -- if you will, that favoritism which destroys equality between oil shippers which the Elkins Act and presumably this judgment, were meant to eliminate. Let's compare. Let's see what defendant's construction does to those twin purposes, first, to limit each shipper-owner's return to a fair return on his capital outlay, Table 1 and Appendix A of the United States reply brief, sets forth dividends actually paid -- actually paid to each of the shipper-owners of the 15 pipelines that are active parties and interests before this Court, now. That table reveals that in the year 1956, the last year before the actions -- now, before this Court were filed, each of the shipper-owners received an average of 18.7% return on their investment, plus surplus. An 18.7% return on their investment plus surplus in the pipelines, a return more than two and a half times. That was the judgment envisioned. And second, what impact did that return have? What impact did that return have on the second goal of this judgment, the second goal to promote some sort of equal competitive status for independent oil shippers, oil shippers with no ownership interest in the pipeline. Compare if you will, dividends actually paid for the year 1956, the 18.7% with the total transport revenue of the pipelines for that year. That comparison is quite striking. It shows that in the year, 1956, 22 cents, 22 cents out of every dollar that each shipper-owner nominally paid in rates, he got back via dividend. Non owner-shippers, independent oil shippers, got no 20 -- such 22 cents back. But the most important, 22 cents out of every dollar they did pay, ended up in the pocket of the shipper-owner against who may might well be competing at the other end of the pipeline. Look at this graphically, in terms of two oil producers in the same field trying to get their oil in the market. One owns the pipeline, the other doesn't.
William J. Brennan, Jr.: So Mr. Bicks, are all these consequences -- do you have a burden of joining us instead of not to feel the differences?
Robert A. Bicks: I certainly do and it's a -- a point I'd like to meet quite directly. There's no question, but that enforcement of this decree has hardly been marked by system and diligence.
Felix Frankfurter: Has what?
Robert A. Bicks: Has hardly been marked by system and diligence. There's no question.
Felix Frankfurter: Well, I didn't get your -- and diligence, what's the other one, by --
Robert A. Bicks: System and diligence.
Felix Frankfurter: System.
Earl Warren: It's hardly been what?
Robert A. Bicks: Marked by system and diligence. There's no question, but throughout the years, defendants have consistently construed this decree as they now would. And there's no question, but that they have regularly reported that construction to the Attorney General via the filing of their annual report. In these --
Speaker: (Inaudible)
Robert A. Bicks: That -- well, there's no question that he never goes to court. And these circumstances, our delay in moving, compels that considerations of basic enforcement fairness, dictate that we raise no issue of illegal dividends seeking penalty payments, seek no retroactive sweep for the construction pressed now before this Court. Equally true, however, in action warrants no basis for concluding the approval from our failure to move -- from our failure to move. You can't conclude our agreement with what the defendants did. Throughout the years, this judgment has posed numerous and (Inaudible) enforcement problems. And only as the years have passed and the debt to equity ratios with these pipelines have shifted so drastically, has this problem even become significant. And it's only reasonably that the problem has become of such crucially importance. Bear in mind that the time this judgment was entered, put that to equity ratio of the 15 pipelines, active parties and interests before this Court was one to 100. Now, it's more than 2 to 1 the other way. This has been -- if only as this trend developed, this problem loomed so large. Until it did, we were preoccupied with other problems under the judgment. Now, in these circumstances -- in these circumstances, our delay in movement shouldn't blur this Court's examination now.
Felix Frankfurter: Would it may -- you said things have -- which I'd like -- I have little more enlightenment. Delay may make a difference that this was a delay. When did this decree come into operation? Was it -- was it active during the war, but (Inaudible) to be counted?
Robert A. Bicks: Well --
Felix Frankfurter: But I --
Robert A. Bicks: I -- I don't think fairly so because --
Felix Frankfurter: Fairness and (Voice Overlap) --
Robert A. Bicks: But -- but I want to answer that completely.
Felix Frankfurter: All right. Anyhow, they didn't -- the war is the war and the war is also --
Robert A. Bicks: That's right.
Felix Frankfurter: Everybody is busy at everything. Certainly from 1946 up, it was -- as period of 10 years, when the Government raised no question. Now, I'm not getting estoppel for it, but make a lot of difference if no question was raised because the problem wasn't significant. The problem haven't emerged. It makes another difference whether -- to me, it makes a difference, not on an illegal ground, but on -- on wisdom in construing if there's doubt. After all, one doesn't suppose that excessive Attorney General, a thief in charge of the Antitrust Division, were to (Inaudible) I should make -- to make that attribution. I believe in (Inaudible) that you make an easier attribution in believe that they couldn't construe it that way, I'd do that. What I want to know in view of what you said, whether what ground there is for an impression you left on my mind, that this really wasn't an emerging problem until you dot under way to object to the way the pipeline company's work history, was that the impression you want to me think?
Robert A. Bicks: I can't honestly answer that question yet. I think the problem has become more significant after the -- only after the war, but if you'll--
Felix Frankfurter: Well, that gives you 10 years.
Robert A. Bicks: That's right.
Felix Frankfurter: More than ten -- more that ten years.
Robert A. Bicks: That's exactly right. And each year, the problem has become more significant, but I cannot say that the problem was insignificant in 1946 which is --
Felix Frankfurter: I understand and it was not raised I don't need some formal litigation. There was not -- there wasn't even a controversy and dispute through negotiation or et cetera, et cetera, was there?
Robert A. Bicks: Well, there certainly was no negotiation. There were some -- it was raised -- and as Footnote 3 of the Government's reply brief suggests, it was raised in a -- a letter to one of the defendants in 1951. But I hardly think the Government can rest very heavily on that, because we are, as to the -- the United States wrote and asked the defendant to explain why he haven't done -- concurred with this construction, defendant wrote back and said, "I haven't done it, because I disagree with you and we let it drop."
Felix Frankfurter: You -- you're telling me you -- can't I agree to that burden that defendant indicated by -- by who's testifying. No new -- you truly (Inaudible)
Robert A. Bicks: That's right. The -- the basic problem really is that after all this is in a sense, a -- a product of compromise and negotiation between parties. On the one hand, the United States and on the other hand, the major components of the oil industry, but no more --
Felix Frankfurter: (Voice Overlap) decree was that?
Robert A. Bicks: Yes, yes. But in a more equally basic sense, it is a decree of a court, really is. And the inaction, the delay in moving to one part should not be held to dissipate the public rights. The important public rights of non-discriminatory oil transport which after all these decree, of course, was meant to produce. Really, our -- our basic position on --
Felix Frankfurter: Now, after all -- after all, it's going to be after all, it also was the -- base in the fact that the court just signed the agreement to parties. This isn't a (Inaudible) maybe injunctions come by justice, might punish you very wisely. Objected ever deciding a decree of the parties involved. But ever, when the (Inaudible) court, but this is a court decree if the parties is a consensual adopting.
Robert A. Bicks: It is.
Felix Frankfurter: And not a -- a sua sponte judicial decree.
Robert A. Bicks: That is true. That's -- that's true. I think the fairest description of this decree is --
Tom C. Clark: (Inaudible)
Robert A. Bicks: Yes, it was.
Tom C. Clark: This is already complete when --
Robert A. Bicks: Oh, yes.
Tom C. Clark: (Inaudible)
Robert A. Bicks: There's no a question of the -- question.
Felix Frankfurter: Be more than a day now that we didn't understand.
Robert A. Bicks: Well, really, our basic position must be that this delay -- this delay in moving, warrants no conclusion of agreement or approval. Really, the important problem now -- I -- I think this delay definitely imposes an enforcement obligation on us in terms of not seeking any dividend payments, or not seeking any retroactive sweep.
Felix Frankfurter: But no -- but it's their account of reasonableness, the one construction you have (Inaudible) --
Robert A. Bicks: It certainly does. And our position is that although it's relevant for that issue, which as you put it --
Felix Frankfurter: It doesn't foreclose.
Robert A. Bicks: That's right. It doesn't foreclose this, because what -- what you're really talking about is the problem of inferring agreement or approval from inaction essentially. And -- and the decree of this importance which really bonds the in perpetuity of the United States and the major components for the oil pipeline industry, this Court should be very low to dissipate those important public rights which the decree was meant to preserve by concluding agreement on the part of the United States to primarily of its own inaction.
William J. Brennan, Jr.: (Voice Overlap) now with this increased evaluation through capital added whose borrowed money. When the borrowed money is all paid off, these companies will -- under the decree, I think you conceive, would be entitled to this sum, wouldn't they?
Robert A. Bicks: Oh, that's -- that's very true. But in -- in that event, Mr. Justice Brennan, those sums would be no more than a fair -- than a fair return on their capital outlay which according to the Elkins Act rationale of this judgment, produces no net difference and net transport cost, very different now, very different now. We're really -- a jump as in a case of Arapahoe, of eight times in the pipelines capitalization, produces an immediate jump and eight times the dividends to the shipper-owner. Under our construction, as the debt is gradually paid off, the shipper-owner's share of capitalization increases and the share of dividends and its -- and its level of dividends increase. But it's only as the debt is completely paid off, that a share is equal to 7% evaluation.
Earl Warren: I will use the two minutes. [Laughs]
David W. Peck: Very well, Chief Justice, may it please the Court.
Earl Warren: Mr. -- Judge Peck.
David W. Peck: Let me start by calling the Court's attention to two basic facts here, a pipeline life. One is that the oil pipelines of this country are pretty close to entirely owned by oil companies, oil operating companies, which shipped over the lines and which they have a proprietary interest and other oil companies which are not owners also, shipped over them. The second basic fact is that in the case of many of these pipeline companies, the ownership is shared by several oil companies. In other words, there is joint ownership of many of the carriers by oil companies. That basic fact is all important as Your Honors will see in a moment on the interpretation of this decree and the meaning of the crucial words, "its share," which I shall come to in one moment. Now, as Your Honor is aware, this case started in 1941 with a complaint by the Government that the shipper-owners (Voice Overlap) --
Earl Warren: We'll recess now.