John G. Roberts, Jr.: We'll hear argument first this morning in Case 06-562, United States versus Atlantic Research Corporation. Mr. Hungar.
Thomas G. Hungar: Thank you, Mr. Chief Justice, and may it please the Court: In Section 113(f) of CERCLA, Congress created a precisely drawn detailed mechanism for potentially responsible parties to recover their response costs from other PRPs. Respondent seeks to circumvent the limitations that Congress imposed on that remedy by manufacturing a parallel mechanism for contribution-like relief under Section 107. Respondent's theory should be rejected because it violates fundamental canons of statutory construction, renders Section 113(f) superfluous, makes a mockery of the textual limitations enforced by this Court in Cooper Industries, and would frustrate Congress's clear intent to encourage settlements with the government in order to achieve supervised effective cleanups. Respondent essentially asks this Court to create a shadow contribution scheme under the guise of Section 107(a) by borrowing all of the features of the Section 113(f) remedy except the one that Respondent can't satisfy, namely the requirement that contribution be sought only during or following a civil action or settlement.
Ruth Bader Ginsburg: Mr. Hungar, was this Court wrong in your view, it wasn't dispositive of the case in Key Tronic when it said, "Section 107 unquestionably provides a cause of action for private parties to seek recovery of cleanup costs? "
Thomas G. Hungar: Your Honor, we agree that Section 107(a)(1) through (4)(b), subparagraph (b) creates a cause of action for private parties, in particular the private parties who are not PRPs, who are therefore other persons other than the PRPs who are the subject of that statutory sentence. So we agree in that sense. We don't think it creates a cause of action for the particular private parties who are trying to sue in this case, that is PRPs.
Ruth Bader Ginsburg: So you think that when the Court says this, it didn't contemplate that PRPs would be included among private parties?
Thomas G. Hungar: Well, in Key Tronic, obviously the Court was facing a different question so I don't think it was trying to in any way authoritatively resolve this issue, as the Court held in Cooper Industries. But I... certainly there is language in Cooper... excuse me, in Key Tronic that can be read to suggest that the Court assumed or thought there was some sort of remedy for PRPs. It's not clear whether it was referring to contribution or some other remedy. But in Cooper Industries, the Court made clear that that was dicta and that's in our view correct, because the Court in Key Tronic was faced with a different question altogether.
David H. Souter: Who were the PRPs, or who are the individuals other than PRPs who are likely to, to avail themselves to the cause of action under Section 7? That's one of the problems I have. I mean, it's got to be someone other than owners of the land now, owners of the land then. I mean, who's going to bring these actions?
Thomas G. Hungar: Well, people who are... who are excluded by other provisions of Section 107 from the category of liable parties would be entitled to bring such an action if they don't--
David H. Souter: But can you give me an idea of generally--
Thomas G. Hungar: --A city that cleans up a site and that is not itself--
David H. Souter: --That's not... you know, that's not a private party within the meaning of the quotation.
Thomas G. Hungar: --No, it is, Your Honor.
David H. Souter: Pardon?
Thomas G. Hungar: It is, because a city can't sue under subparagraph (a). Only the State can sue.
David H. Souter: Well, it's not the United States of America, but we wouldn't normally refer to it as a private party. And... but I don't mean to get tied up in that, but can you think of any individuals or corporations who are not likely to come in to one of the four categories in 7 who would, who would take advantage of this?
Thomas G. Hungar: Yes, Your Honor. And first of all, just let me make clear: Subparagraph (b) doesn't refer to private parties only; it says any other person.
David H. Souter: No I realize that. I'm trying to--
Thomas G. Hungar: But with respect to private parties in particular, any private party who was a so-called innocent person under the statute, who because--
David H. Souter: --No. Those are people who would have a defense under the later sections of... subsections of Section 7. They are still people who would fall within the first four categories.
Thomas G. Hungar: --I think, Your Honor, that you have to read the statutory sentence in Section 107(a) as a whole, and what it says is that the people in these categories, owners, operators, arrangers and so forth, collect in the conjunctive, shall be liable for... and then under (b), any other necessary cost or response incurred by any other person. And that the other provisions of the statute such as subparagraph (b) with respect to the third party defense, subparagraph (d), subparagraphs that create... I mean, I'm sorry, subsections that create various defenses, what they say is if you satisfy this defense, you're not liable. You are taken out of the category of liable parties, the category that is the subject of this statutory sentence. And therefore in our view, you become an other person. So people who are able to satisfy the defenses are other persons, and that's what the lower courts have held in cases where this has come up.
David H. Souter: Well, you know that when they go into court. Let's assume they bring the action and the answer is well, you fall into one of the categories one through four, and the person says oh, but I... I'm not liable because ultimately I will have an innocent party defense. Would we then have a collateral trial on the innocent party defense in... in the cause of action for, for reimbursement?
Thomas G. Hungar: Well, I don't think it's a collateral trial. It's just one of the issues in the case.
David H. Souter: But I mean if that would be the first issue, we'd have to try the innocence of the person who was bringing the action?
Thomas G. Hungar: Well, I think the court could obviously structure the issues as it saw fit but certainly that would be one the issues in the case, but again people in that category aren't the only--
David H. Souter: Well the... the trouble with having, I mean the trouble with that approach is that whatever you, whatever may be the ultimate effect of subsection (b) is referred to as defenses. And the way you're using it the so-called defenses would be an... an affirmative element in the action for, for, for cost reimbursement with is just... and I mean it certainly at the least would involve a very odd language usage in the statute.
Thomas G. Hungar: --Well I don't think so because what the statute says is people, the people who are the subject of the sentence shall be liable to other persons. And if someone by virtue of the statute is rendered not liable--
John G. Roberts, Jr.: Well, but you--
Thomas G. Hungar: --they are not in the subject; they are in the other category.
John G. Roberts, Jr.: --Well you've glided over the great difficulty which is it doesn't say that people identified in the statute shall be liable to other persons. It says they will be liable to, under certain circumstances, the United States, a State or an Indian tribe and they are liable for... for other costs incurred by any other person. And it just seems that the most natural reading of that construction is that the other refers to other than the United States or a State or an Indian tribe.
Thomas G. Hungar: Your Honor, that would certainly be a... a permissible reading of the statute, were it not for the other "other". The... the statute in subparagraph (b) refers to any, provides a cause of action or refers, really imposes liability for any "other" necessary costs. The other necessary costs... that other, the only other costs that that (a). So the first other in subparagraph (b) makes clear that it's not talking about the subparagraph (a) claims; it's talking about other claims, because by definition the United States or a State cannot recover under (b) by virtue of the first other. Congress in the development of this language, the first other was already in the statutory language. Congress, at the last minute there was a change, a compromise in order to get the bill passed and reduce the onerousness of its provisions, and they added the second other. The only logical explanation and the only way to give effect to the second other is to construe it as we do.
Samuel A. Alito, Jr.: In the years since CERCLA was enacted have there been any real cases in which a party that you would regard as an innocent party has brought a cost recovery action?
Thomas G. Hungar: Yes, sir. And actually there's an annotation that, that collects the cases. We haven't done an exhaustive survey, but certainly the annotation is... which is at 12 A.L.R. F. 2d 161... collects a number of such cases. And the lower courts have addressed these questions and have, and adjudicated them so this is not a novel suggestion. And it's one that has arisen because, because remember, under the well established law of every circuit that had addressed the question prior to the Cooper Industries decision, a PRP could not sue solely under Section 107(a). They had to sue, they had to comply with the, the Section 113 mechanism, and the courts held that in order to avoid the disastrous consequences that would ensue if respondents or the court of appeals--
Stephen G. Breyer: What are... what are they? I mean as I read this, I can't get anything out of the language. I mean the two "others" might just make it more clear. So we have another Section 113 that talks about contribution and it says you can get contribution if there has been a lawsuit, and so forth, or if there has been a settlement. Fine. Now the question comes up, well, suppose there hasn't been a lawsuit or a settlement. Now if we look at the language here, at least my initial reading of it, it does not say. It says that they are liable. These PRPs are liable to this other PRP or person there. But it doesn't just say explicitly bring a suit, and it doesn't say explicitly you can't bring a suit. So I think well, why can't he bring a suit? If he brings a suit how is the sky to fall? On the other hand, if you don't let him bring a suit, they say well, maybe the Government just... will just stay out of this. The Government won't enter into settlements because the Government is a big polluter. And it would not like to get sued often, so they will stay away from the settlement and be home free. So that's what they say on your... on their side, I think, primarily. What do you say on your side? How will the sky fall if in fact they win and they can bring suits under 107?
Thomas G. Hungar: --Your Honor, the sky will fall because under that interpretation PRPs can evade the settlement bar that Congress enacted in order to encourage settlement, and Congress's clear goal in providing a contribution remedy and providing an explicit opportunity for PRPs to sue was to encourage settlement with the Government. Congress wanted to reduce litigation, encourage settlement and Government supervised cleanups, and so it created the settlement bar in Section 113(f)(2), which, if a PRP settles with the Government, the United States or a State, settles for a response cost liability, it then has a contribution action to--
Ruth Bader Ginsburg: How does it work with "or a State" because I thought that there was some suggestion that States, they don't want to bother with the Federal legislation, so they'll say you're okay under the State legislation. You can't force a State to... to take on that responsibility.
Thomas G. Hungar: --Well, Your Honor in our view what Section 113(f)(3)(b), the settlement contribution provision, requires is that a State settle, the parties settle with the State and resolve its liability to the State for response costs which is a defined term under CERCLA.
Ruth Bader Ginsburg: The States, we have a brief from the States telling us look, we don't want to put our money on that kind of thing. We've got very high-risk sites and we want to spend our resources making sure those are cleaned up.
Thomas G. Hungar: Well, Your Honor, every State has a voluntary cleanup program which encourages parties to settle, and under many of those programs there is an opportunity if they do the settlement to required standards to obtain a discharge of liability from the State for response costs. And there is no reason why those settlement agreements can't be written and they often are.
Ruth Bader Ginsburg: Well, they... they can. Of course they can but the States are telling us that this puts a burden on them that they don't want.
Thomas G. Hungar: Your Honor, the States already have these programs in existence. There is no reason why the settlement language can't be written appropriately and moreover, in many States, I suspect most States, the PRPs are required to pay the costs of the State that it incurs in monitoring and in ensuring that the settlement agreement is appropriate. The State of Washington, for example, which is here today, if you look at the web site of its Department of Ecology, it has extensive procedures, extensive opportunities for parties to come to the State, present the information, obtain a settlement if they want... if they will pay the State's costs in monitoring and making sure that what the PRP is doing is an appropriate cleanup. And that's what CERCLA should encourage. There are--
Ruth Bader Ginsburg: Well, let's just go back to Justice Breyer's question, because it was I think a major point of the Eighth Circuit. That is, they said the United States, the United States is a big polluter, could avoid its own responsibility by not bringing any enforcement action and by not settling, and you... you said there would be a disincentive for the PRP... a disincentive to settlement, but you didn't answer the question of why wouldn't the United States when it is a polluter and it would be responsible on this site, to say well, we are going to, we are not going to settle?
Thomas G. Hungar: --Well, two... two responses. Number one of course, if that happened, there is always the State option, the States settled thousands of cases. Number two, that's just not the way it works in practice. EPA has the enforcement authority with respect to these private, the private sites that we are talking about. EPA has no incentive not to do its job and every incentive to do its job.
David H. Souter: Well, what about the... what about the statement in the red brief that... that there is presently in existence a directive that EPA not proceed against any Federal agency?
Thomas G. Hungar: I... I think what Your Honor is referring to is a directive perhaps that requires EPA to obtain the Attorney General's approval before it will issue a unilateral administrative order. But that doesn't apply to Section 107, excuse me, Section 106(a) consent orders the, the EPA issues. It enters into numerous settlement agreements in cases implicating Federal PRPs; we cited a number in our brief and there are many more, and... and EPA has a detailed set of standards. They occupy a hundred pages.
David H. Souter: Well, excuse me. Are cases that you referred to cases in which EPA has gone against a... we'll say a third party polluter, but the Government is also involved?
Thomas G. Hungar: Yes. We cite a number from the Federal Register.
David H. Souter: Okay. Now, has EPA during the pendency of that directive gone directly against any Federal agency?
Thomas G. Hungar: If Your Honor means filing a lawsuit the answer is no--
David H. Souter: No.
Thomas G. Hungar: --because in our view EPA can't sue the United States. If Your Honor means, I mean definitely there are enforcement actions or... proceeding. The way EPA normally works, just to be clear, is that when it learns of a site, it learns of a release of hazardous materials, it does a preliminary assessment to find out whether this is a problem or not, whether it's a problem that they should pay attention to or if they should instead refer to the State. And if it's of sufficient magnitude that it's for the EPA rather than the State to deal with, they proceed to identify all the PRPs they can sent notices to them and attempt to settle.
David H. Souter: All right--
Thomas G. Hungar: They always do that.
David H. Souter: --What if, what if one of the PRPs they so identify is the Department of Defense?
Thomas G. Hungar: Yes. They attempt to settle, they attempt to settle with the Department of Defense as well as--
David H. Souter: Do they have to get the Attorney General's approval before doing that? Before naming the Department of Defense?
Thomas G. Hungar: --Well, they wouldn't sue them. If you mean by sending notice to the Department of Defense--
David H. Souter: However they initiate, I don't know as a matter of procedure how they initiate enforcement action--
Thomas G. Hungar: --They send a letter.
David H. Souter: --It's by that letter--
Thomas G. Hungar: They send a letter to all PRPs.
David H. Souter: --Do they need the Attorney General's approval to send the letter?
Thomas G. Hungar: I'm not sure. I don't believe so, but I--
David H. Souter: What if, what the Department of Defense says "nothing doing"? What does EPA do then?
Thomas G. Hungar: --They would... if, if the private parties are willing to settle and pay, and take responsibility for their share of the liabilities, EPA can and will settle with them, regardless.
David H. Souter: Well, what does it do about the Department of Defense?
Thomas G. Hungar: Well--
David H. Souter: In my hypo, the Department of Defense says you know, we are not talking with you.
Thomas G. Hungar: --Well, number one the Department of Defense has additional legal obligations to deal with hazardous waste even beyond anything EPA can do.
David H. Souter: Maybe it does. But let's just talk about EPA. What does EPA do in the case that, when Defense stonewalls?
Thomas G. Hungar: Just, just to be... just to finish my last point, if I may... which can be enforced by citizen suits. But leaving that point aside, if... ultimately they would go to the Attorney General I suppose and ask for authority to issue a unilateral order. But I'm not aware that that problem is a significant one, and the fact is there are numerous settlements, and they don't, under... under... for Respondent to have a cause of action, EPA doesn't have to settle with the Federal PRP; all they have to do is settle with the private PRP, and if the private PRP is willing to pay its share, which EPA determines according to standards about its... vary, considering various factors about who contributed what and who caused which portion of the problem--
David H. Souter: And at that point 113 would kick in--
Thomas G. Hungar: --Correct.
David H. Souter: --regardless of Defense?
Thomas G. Hungar: Correct. And again if EPA somehow refused to settle, the... they could settle with the State. So it's just not... EPA does not have any incentive to block cleanups. EPA wants to encourage cleanups and if the best way to get the cleanup done is to settle with a private party, then that's what EPA is going to do.
Ruth Bader Ginsburg: Then why this case... there's a point that was made by the Eighth Circuit, and also in the States' brief on page 24, and that is that the EPA was engaged in settlement negotiations with Atlantic Research, and then after this Court decided Cooper Industries that negotiation terminated.
Thomas G. Hungar: Your Honor, that's not correct. My understanding is that the negotiations were between, were... Atlantic Research brought a claim seeking, seeking money from essentially the Defense Department, and my understanding was that the negotiations were only to settle Atlantic Research's claim whether you call it a contribution or a cost recovery claim, not an attempt by Atlantic Research to resolve its liability to the United States. They were not negotiating with EPA with respect to EPA's enforcement authority. They are negotiating with Justice Department lawyers in the environmental defense section who represent Federal PRP defendants. They weren't... they weren't trying to resolve their liability in order to give rise to a contribution claim. What they were trying to do was merely make the United States pay them without first having resolved their own liability, which is why it makes no sense for them to be bringing a contribution claim.
Stephen G. Breyer: Can I... can I go back? Because I'm trying to, since I do find it so open with the language, what I'm doing is making what I call the list of acorns. You say the sky is falling and I want a comparative list.
Thomas G. Hungar: Yes.
Stephen G. Breyer: On their side I have an acorn, which is if they don't win, EPA and DOD just are not going to settle these things because they want to escape us suing them. And you say, are you kidding? EPA loves to sue. [Laughter] And they like to settle. Don't worry about it. All right. On your side, you're saying well, you know, if we don't... if we don't... accept your interpretation, they won't enter into settlements. To which I guess they will make the same response. Are you kidding? The EPA loves to sue us and we are frightened of them and we'll settle. Okay. So I've got one acorn each side, now are there other acorns on the Government side; namely the sky is falling--
Thomas G. Hungar: Yes, Your Honor.
Stephen G. Breyer: --What are they? I'd just like to make the whole list of acorns.
Thomas G. Hungar: Well, the first and foremost way in which the sky is falling is that the court of appeals approach, Respondent's approach would eviscerate the settlement bar, because the whole point of the settlement bar is to give parties an incentive to settle with the Government knowing that they will be protected from contribution claims. But if Respondent has a cost recovery claim under Section 107, the settlement bar goes out the window. And in fact that's what a number of the courts of appeals have held in... in making clear that Section 113 does govern these claims. EPA has entered into settlements with literally tens of thousands of PRPs.
Antonin Scalia: But you have to pay the costs. I mean, isn't that something of a disincentive? Before you can sue?
Thomas G. Hungar: Well, but the claim here is that the parties want to pay the costs and incur voluntary cleanup costs anyway. They just don't want to settle first. So if I'm understanding your question--
Antonin Scalia: Yes. It would be one thing if you skip away from a settlement without having to pay any money. But in order to come under, under 9607, they have to, they have to shell out the money.
Thomas G. Hungar: --Maybe I'm not understanding. My point, Your Honor, is that there are tens of thousands of parties who have already settled, shelling out some money or not, with the EPA in reliance on the unanimous view of the courts of appeals that PRPs could not sue them because the contribution bar protected them, Section 113(f) would protect them.
John G. Roberts, Jr.: Well, how sure are you... how sure are you that it doesn't protect them still?
Thomas G. Hungar: Well, Your Honor, what it applies to is contribution claims, and respondent and Respondent's amici are very clear that they want is not a contribution claim because they recognize that the settlement bar would preclude their claims, but a cost recovery claim, and Section 113(f)(2) says "contribution", not "cost recovery". Those are very clearly--
John G. Roberts, Jr.: Well, when one responsible party has paid out the cost and is seeking a cost recovery claim from another responsible party, it's not too much of a stretch to call it a contribution claim, is it?
Thomas G. Hungar: --Well, Your Honor, if you want to call what the PRP is seeking a contribution claim, then we submit that it should be governed by the traditional understanding of contribution and by Congress's explicit terms defining what it wants contribution claims to be. Even if you assume that in some sense Section 107 imposes liability on PRPs to other PRPs, it doesn't say what to do with that liability and how you litigate it. Section 113(f) is how Congress explicitly, carefully addressed that question and when Congress has done so this Court normally assumes that what Congress specifically said as the remedy and delineated as the remedy, including the limitations thereon, are what apply.
John G. Roberts, Jr.: You're not worried about any of that when you're dealing with an innocent party, the person you say can bring this action under 107(4)(b). Don't all those same concerns and objections apply in that case as well?
Thomas G. Hungar: No, Your Honor, because the normal rule in American law is that innocent victims get to sue the people who have injured them for recovery, but the defendants, the liable parties, don't get to sue each other except in contribution when it has been made available.
John G. Roberts, Jr.: But you don't know, you don't know, that you're dealing with an innocent party until the end of the litigation.
Thomas G. Hungar: Well, that might be true in many circumstances, Your Honor. But that doesn't mean that we don't give someone who can establish they are innocent party a right to full recovery and someone who is not an innocent party is relegated to contribution.
John G. Roberts, Jr.: Do you have another example of an innocent party who can bring an action under 107(4)(b) other than a governmental subdivision?
Thomas G. Hungar: Yes, Your Honor. A party who qualifies, who can show that under the third party defense the hazardous release was not due to any, any fault of their own, and can satisfy the requirements of that defense.
John G. Roberts, Jr.: But they're somehow affected by the hazardous release.
Thomas G. Hungar: I'm sorry?
John G. Roberts, Jr.: But they're still somehow affected by the hazardous release.
Thomas G. Hungar: Well, yes. They could be a subsequent owner, for example, under the bona fide purchaser exemption or the third party exemption.
John G. Roberts, Jr.: But my point is that subsequent owner, EPA is going to start looking at him as a PRP, not as an innocent party. In other words, there is going to have to be an awful lot of litigation before he can establish that he is not a PRP and is instead an innocent, innocent party.
Thomas G. Hungar: Well, they could also just resolve it through settlement, Your Honor. And either they could then proceed with their lawsuit or, if they want to admit some minimal liability and obtain a contribution claim, they could proceed in that fashion. But there are solutions to the problems that have been identified under our interpretation, but there is no plausible solution to the problems that their interpretation produce, including eviscerating the settlement bar. It's no surprise that some of the largest polluters in America have lined up in support of this view, because this will allow them to reopen settlements and go after parties who thought they had paid up their liability and obtained settlement protection by virtue of the Section 113(f) settlement bar.
Ruth Bader Ginsburg: The person who settled, wouldn't that person be protected? Wouldn't the court say, this person has made a bargain with the EPA and we're not going to extract any more from them?
Thomas G. Hungar: Not if the claim is a cost recovery claim under Section 107, because section... the settlement bar applies only to claims for contribution. This is Section 113(f)(2), which appears on page 9a of the appendix to our brief.
Ruth Bader Ginsburg: Yes, but to make the statute work in harmony, to harmonize 107 with 113, it seems to me that would be an altogether reasonable position for a court to take. If someone has settled and is protected by virtue of that settlement, then when someone else tries to go after that same person the court could say: We have to make the statute work and we're going to honor the settlement.
Thomas G. Hungar: Your Honor, I submit if the court were seeking go harmonize Sections 113 and 107 the way to do it would be to give effect to the limitations that Congress imposed on PRP remedies, but not merely the settlement bar, but also the requirement that actions be brought during or following civil actions and settlements, and also the statute of limitations, which the Respondent's theory would also permit them to evade. If I may, I'd like to reserve the balance of my time.
John G. Roberts, Jr.: Thank you, Mr. Hungar. Mr. Armstrong.
Owen T. Armstrong Jr.: Mr. Chief Justice and may it please the Court: I would like to address the settlement bar. One thing that the Court should keep in mind is that a cost recovery action under 107(a)(4)(B) is an action for restitution. This is an equitable action. There is no jury trial under CERCLA. The district court is sitting as a court of equity. And as Justice Ginsburg just pointed out, the court is empowered in any case, any 107(a)(4)(B) case, to accord settlement protection to a settling party as a matter of equity. It may do that simply as a matter of equity or, as we pointed out in our brief, it may do so by virtue of a contribution counterclaim by the settling party. So the court, a district court, is empowered to give full protection to any party who has settled so long as the matters addressed a portion of 107--
Stephen G. Breyer: How? I'm not so sure because... unless you want to stipulate that that restitution... if you want us to write in the opinion that in fact in a 107 action if one of the parties sued has entered into a settlement he shall have precisely the same protection from suit as if it were a 113 action. Do you want to say that or not?
Owen T. Armstrong Jr.: --Well, Your Honor, I believe the district court as a matter of equity should accord in most cases... now there may be exceptions--
Stephen G. Breyer: Well, I would worry about the equity. I just want to know if you want to stipulate that that's the proper interpretation, because I could easily imagine a case where your client bought a beautiful golf course and he wants to turn it into a golf course. Unfortunately, there's a little mess under there and he spends $10 million on that. And he says the real fault is the Union Oil Company and I'm going to sue them because they're the ones who dumped this and they've cost me $9 million. And it turns out that Union through precisely good luck and a brilliant attorney has settled this very matter for one dollar with EPA. Barred?
Owen T. Armstrong Jr.: --No, Your Honor, it would not be barred in that case.
Stephen G. Breyer: Ah, that's what I thought, and that's what he's saying. That's what he's saying, that's why he has brought his second acorn, because he said there's a huge difference here. What you will do is if you get this 107 action you'll argue to the court as to what's fair, but what 113 says is once you settle with the Federal Government you're home free.
Owen T. Armstrong Jr.: Well, Your Honor, in your hypothetical, spending one dollar, there is no question that the court sitting in equity and also as a matter of a contribution counterclaim would be entitled to review the settlement and if that matter is in the matters addressed, if it has been resolved by the Government... and I should point out that in a settlement, settlements are publicly noticed, so parties have an opportunity to object to any settlement which they feel is unfair. And presumably our golf course owner would be identified in that circumstance.
John G. Roberts, Jr.: Well, but there's nothing, there's nothing unnecessarily unfair. It turns out that the Union Oil Company is bankrupt and in part of the settlement they agreed to turn over all the documents listing whoever it was that gave them the chemicals. And it's a very complicated thing because we're dealing with people often in these cases that don't have assets and only limited responsible parties have the assets. So they're trying to recover what they can from the others.
Owen T. Armstrong Jr.: That is correct, Your Honor. That would not be unfair any more than it would be unfair in a contribution action, in which case the court is directed to apply principles of equity in allocating responsibility.
Anthony M. Kennedy: Well, almost by definition a settlement is for less than the full amount that you'd have to spend without the settlement, almost by definition.
Owen T. Armstrong Jr.: Well, that is correct, Your Honor.
Anthony M. Kennedy: You don't usually settle for 100 percent of your liability.
Owen T. Armstrong Jr.: That is correct, and I think Congress did write that into the contribution part of the statute--
Anthony M. Kennedy: So that means that in every settlement agreement you'd have to engage in this analysis to see whether or not it was fair.
Owen T. Armstrong Jr.: --Well, I believe in every settlement agreement the court would have to engage in an analysis as to what matters addressed are for purposes of the settlement.
Stephen G. Breyer: How are you going to choose this? Because he is, I think you're... maybe you're in a slightly awkward position because the Government is saying that one of the reasons that you're stuck with 113 is because Congress didn't really want through 107 to give parties like your clients an opportunity to review for fairness or equitable principles, whatever you like, the settlements that had taken place with the defendant in EPA. And that's so we can get people to settle, among other things. They feel they're home free. Now, you have two choices here. I think you could say, one, well, that's the way it is, we should have a 107 action and we should review these settlements for fairness; or two, you could say one of the principles of fairness is the principle that's written into 113 about no review, and we're happy with reading that into 107. So which is it that you would like to say?
Owen T. Armstrong Jr.: Well, Your Honor, that's absolutely true, because I think one of the principles of fairness is to solidify the settlement agreement.
Stephen G. Breyer: When you say that's absolutely true, you mean absolutely true that you have that choice, or is it--
Owen T. Armstrong Jr.: I believe that a reviewing court should in each instance... if a district court decides to avoid the settlement, if it says that it's not fair, I believe that would undercut the finality of a settlement so long as it's contained within the matters addressed.
Stephen G. Breyer: --All right, so then he's wrong in thinking that the motivating force behind this action is to permit people to get equitable review of prior settlements? What you simply want... and you're not interested in that; you'll go with no equitable review of private settlements. Read 113 into it. You want the right to bring the case where there has been no settlement and Government has done nothing.
Owen T. Armstrong Jr.: That is absolutely correct in our case, Your Honor, and I think we've stipulated to that.
Ruth Bader Ginsburg: But to talk about the other polluter or the other in this case, where the other polluter is not someone who is going to settle because it's the Government itself--
Owen T. Armstrong Jr.: Yes, Your Honor.
Ruth Bader Ginsburg: --So I don't think you're in a position to concede anything one way or another because that's not your case.
Owen T. Armstrong Jr.: That is correct, Your Honor, because in our case, I think as we have made it quite clear, all we are seeking in this case is to recover a proportion of our response costs. We cannot concede, because we are not confronted with the issue that has been posed... I would not object as a matter of a bright line rule if the Court were to rule that a settlement is protected from a back end or a roundabout 107(a)(4)(B) action in order to disturb a settlement agreement. We do not have those circumstances in this case, that is correct. And we are only seeking restitution in our case. We are seeking an equitable result, a proportionate share of ARC's response costs.
Ruth Bader Ginsburg: What about the Government's concern that prenups shouldn't go on unsupervised. That's when EPA brings an enforcement action, there's a monitor there. When there's a settlement, then the Government is there. But if you just go off on your own and do this, you're doing it unsupervised by any State authority, any Federal authority, and that could--
Owen T. Armstrong Jr.: Your Honor, I believe in most cases there is State involvement. There is in the ARC case, although it is not in the record. We have entered into a cooperative relationship with the State in cleaning up the site. And I think in almost every case a PRP is well advised to bring in experts to make sure that the cleanup is consistent with the national contingency plan, because absent that, satisfying that requirement, the PRP is not entitled to recover any of its costs. So there is a very demanding requirement written into CERCLA. The national contingency plan occupies 9605 and it occupies several hundred pages of 40 C.F.R. part 300.
John G. Roberts, Jr.: As you read the statute, you're talking about a PRP, but any other person doesn't have to be a PRP, does it?
Owen T. Armstrong Jr.: No, Your Honor. That is correct, although--
John G. Roberts, Jr.: You could set up a company that cleans up these sites, right, and go traveling around the country and clean them up and then send people a bill and cite your reading of 1074(b), right?
Owen T. Armstrong Jr.: --107(a)(4)(B) would include both PRPs and what we might call non-PRPs. I believe one of the amicus parties studies 364 cases between the years of 1995 and 2000 and there was one case out of that 364 that involved precisely your hypothetical, Your Honor.
John G. Roberts, Jr.: Well, if we rule in your favor presumably there will be a lot more, right?
Owen T. Armstrong Jr.: PRPs will certainly be able to seek cost recovery under 107(a)(4)(B).
John G. Roberts, Jr.: What about non-PRPs?
Owen T. Armstrong Jr.: There are very few non-PRPs. The only non-PRPs that I can think of is perhaps the hypothetical you just advanced, because as has been pointed out, the so-called innocent adjoining landowner is a PRP, is a covered person under 107(a)(4)(b), and only has a defense to liability. And it is absolutely true that in order to bring an action, according to the Government, that particular PRP would have to establish through affirmative action that it's... that it satisfies the, the liability exclusion in 107(b). And that is a very drawn out process. The criteria for satisfying the defense in 107(b) takes up 2 1/2 pages of the, of the statute. So what we are involved in in that case, Your Honor, is yes, PRPs may bring cost recovery actions. And I think that was true in 1980 when the statute was passed. Contrary to the Government's representation, there are 10 cases holding that actions may be brought under 107(a)(4)(b) by so-called PRPs between the time that CERCLA was passed in 1980 and the amendment to CERCLA in 1986, in October of 1986. Courts held without exception, without exception, that covered persons or PRPs indeed do have a right to bring a cost recovery action under 107(a)(4)(b). And Congress when it passed 113, was looking at those cases only that had some doubt about whether contribution could also be brought. In other words, whether a party could seek restitution despite the fact that it was compelled to do a cleanup via a lawsuit. And some courts found that there was an implied right to contribution, some found that there was a common law right, but Congress in 1986 specifically said, we are only concerned with the implied right to contribution, given this Court's holding in the Northwest Airlines case and in Texas Industries. Congress was concerned that there would be no right to contribution unless it codified that right, which it did in 1986. And I think the legislative history makes it quite clear that Congress did not intend to disturb or to cut back on the rights that courts had found consistently in that six-year window between 1980 and 1986, all of which held that PRPs indeed do have a right to bring cost recovery actions.
David H. Souter: But in... in response to your... going back to your response to Justice Breyer, I take it the... the right under... under 107 was affected to the extent, or at least you would agree that it was affected to the extent that if there is a settlement they are home free and there can't be a 107 action; is that correct?
Owen T. Armstrong Jr.: That is correct.
David H. Souter: Okay. So it disturbed the old scheme to that extent.
Owen T. Armstrong Jr.: It did, although most of these cases I do believe did not involve settlements, but I think obviously when Congress enacted 113, I think it certainly wanted to encourage settlements in cases where there had been an action brought against a PRP. Obviously I think settlement saves everybody the time and effort of litigating these matters, and I think for that reason, in 113 we get contribution protection, we get the ability to bring a contribution action. So certainly settlement was a key element of 113 but it was a key element of that provision, not Section 107. But I think Congress has made it quite clear to encourage settlements, if it's in the matters addressed, that there should be immunity for those parties that are settling their claims with the Government or a State in a judicially approved or administratively approved settlement. So I don't believe--
Ruth Bader Ginsburg: --What about the disincentive to settlement? You just said how important settlement was, or what a good thing it is to encourage it. But the Government says if you could just clean up without any order and without making any proposed settlement, just do it and get back your costs, then there's a powerful disincentive to settle.
Owen T. Armstrong Jr.: --Well, Your Honor, I think once again, settling is not a disincentive in the sense that if you do settle, you are deemed... all of your costs are deemed to be consistent with the national contingency plan. You need not be concerned in that particular case about satisfying the burden of proof that you have as a PRP that your costs are consistent with the national contingency plan, which is no easy matter. The national contingency plan as I stated, appearing in 40 C.F.R., part 300, occupies a good hundred pages. It is a very detailed and demanding set of requirements. So there is a strong incentive, I still believe, for parties to settle because in such a case they do not have to establish that there is consistency with the national contingency plan. They also obtain immunity from suits, assuming it's in the matters addressed. Now a party that voluntarily remediates a site has to worry about both of these elements. It can be sued. It has no immunity. It is certainly subject to being sued by another PRP, by a State, an Indian tribe, or the Government, regardless of how much or how well it's done in remediating a site, whereas a settlement gives that protection to a PRP.
Antonin Scalia: So you say there are two factors which still exert pressure to settle. One is that you don't have to bear the burden of showing that you conform with the national contingency plan, and second, that--
Owen T. Armstrong Jr.: The second factor is--
Antonin Scalia: --you insulate yourself from contribution suits by other people.
Owen T. Armstrong Jr.: --That is correct, Your Honor. That is absolutely correct. Because in cleaning up a site, you can clean up all or part of a site. That's what 113(f)(3)(b) states.
Antonin Scalia: Do you rely at all on... in 9607(a)(b)? It says any other necessary costs of response incurred by any other person. Does the word "any" add anything to your case? Do you think it urges us to give the broadest possible interpretation to other person?
Owen T. Armstrong Jr.: I believe it--
Antonin Scalia: Other necessary costs?
Owen T. Armstrong Jr.: --I believe it does, Your Honor. I mean, I can't imagine language more broad than that. I do believe the first use of the word other that opposing counsel referred to is to make it quite clear that there can't be a duplication of liability. Obviously a PRP that is exposed to liability in a case cannot be required to pay both the Government and the other party who is cleaning up the site. And I would say that the second use of the word other, which has become quite critical in the Government's argument, the Government I think concedes that the way the statute initially read in the first draft omitted the term other and simply read any person. And the Government says well, the insertion of the word other prior to the enactment of CERCLA indicates that what Congress intended was to withdraw from that huge basket, if you will, all PRPs. Well, that is not the case at all, because initially the definition section of person that was contained in the initial draft of CERCLA did not include the United States. It cross-referenced the Clean Water Act. So the United States was not a person within the initial draft. And the addition of the word other, the second other in 107(a)(4)(b) was to make it clear. Otherwise, you're going to have a statute that says the government can recover under (a)(4)(a) and (a)(4)(b). So I do believe that the addition of the second word other simply explained and clarified that the Government was to bring its action under 107(a)(4)(a), not under 107(a)(4)(b). And I think as Justice Scalia has mentioned before, it would be very odd for Congress to have so drastically changed CERCLA by inserting the word other without any commentary whatsoever. There was a good deal of debate about the exclusion of joint and several liability under CERCLA, about the exclusion of contribution, and other matters. There was not a mention made of the addition of the word other preceding person in 107(a)(4)(b).
Antonin Scalia: Now you say this very language that's in 107 now had been interpreted unanimously by the courts?
Owen T. Armstrong Jr.: That's correct.
Antonin Scalia: So that part of your case is that, is to say that it's limited by 113 is to say that there's been an implied repeal.
Owen T. Armstrong Jr.: That's correct, Your Honor.
Antonin Scalia: Unless all those cases were wrong.
Owen T. Armstrong Jr.: That is absolutely correct.
Antonin Scalia: So it's not just a legislative history point you're making, it's not just a point as to what Congress's expectations were. It's also... it's also a point that relates to implicit repeal.
Owen T. Armstrong Jr.: It would be tantamount to a repeal.
Antonin Scalia: And if the Government's only strong point is that 113 is meant to coerce settlement, and 113 didn't exist before, then it must be very clear that previously 107 did give them a cause of action.
Owen T. Armstrong Jr.: That is absolutely correct. That logic is impeccable, Your Honor, I believe so. Because that... that law was well established and there was no... there was no such thing as contribution. There was no protection prior to--
Antonin Scalia: No acorns on the other side.
Owen T. Armstrong Jr.: --No acorns. [Laughter]
John Paul Stevens: May I ask just one question about your position on the meaning of the settlement provision in 113(f)(2)? Do you read it to provide not only immunity from contribution suits but from any other litigation whatsoever?
Owen T. Armstrong Jr.: No, Your Honor, it's not any other litigation whatsoever. I think that it is quite clear that what (f)(2) does provide is in a settlement, if a party is seeking under CERCLA... now when you say other litigation, I assume you perhaps mean State law, etcetera. If it's a State law contribution claim, I believe that provision would afford immunity from a State law contribution claim, assuming it could be asserted. Now of course it could not be asserted against the United States. But I do believe that that language--
John Paul Stevens: If there were a claim that didn't really technically qualify as contribution, it would not, it would not provide a bar.
Owen T. Armstrong Jr.: --If it were a CERCLA claim, Your Honor, under 107(a)(4)(b), it would. However, if it is not a claim based upon CERCLA, and there are certainly a myriad of claims that can be brought... remember, CERCLA is a strict liability provision... I don't believe that would bar all lawsuits entirely. That's correct, Your Honor. If there's nothing further--
John G. Roberts, Jr.: Thanks, Mr. Armstrong. Mr. Geck.
Jay D. Geck: Thank you, Mr. Chief Justice. May it please the Court: There are more than 400,000 sites across the country that are contaminated by hazardous wastes. The amici States recognize that if these sites are to be cleaned up, it's going to take the work of private parties. In turn, we recognize that private parties rely upon cost recovery to obtain their costs and financial incentives to do the site cleanup. The United States argument ignores this vast majority of sites that do not have the opportunity of litigation and do not have the opportunity of settlement. I'll turn first to the words "any other person" where the United States argues that it means innocent person. The words 107 of CERCLA. To get there, the United States borrows from other sections of CERCLA. If the word other were superfluous... and we do not think it is, we do not think that's the right reading... the better textual reading here is the natural reading of Section 107. These are two sections that are practically twins and if words are known by the company they keep, you have three parallel structures in each of these cost recovery sections. And further, we point out that the Government's argument leads to an implausible result. If people have to prove their innocence in order to qualify for a cost recovery claim, then there would be, indeed, a possible multiyear trial just in order to decide whether they had a right to cost recovery. A far better approach would be not to destroy a cost recovery claim after that work but to allow those issues, that is a plaintiff's potential liability under 107, to be raised as a contribution counterclaim. And that way you have an incentive for settlement between that private plaintiff and the defendants, and that way you have equity being done.
Antonin Scalia: Why wouldn't the States prefer to proceed, to force people to proceed under 113, so that the States would have, you know, a hand in deciding how the cleanup should go? I don't... I don't quite understand why you're here. I would have thought that the States' interest would be similar to the Government's.
Jay D. Geck: The States recognize that to proceed under settlement puts a near impossible task. EPA, of course, can settle very few sites, they have limited resources, and that's one of the reasons why we don't have settlements in many cases. And apparently they sometimes have disincentives for proceeding with a settlement because it would open the Government to a contribution claim. The States also have similar resource limits. The States in order to go into a settlement, and this is an important point, the Government is blurring the State settlement right here. It's referring to a cost recovery right which the States could seek under Section 107 of CERCLA, but there's a great deal of uncertainty as to whether a State settlement that orders a cleanup would be a resolution of CERCLA liability, and a Second Circuit case from Con Edison that's pending before this Court discusses that at length. Uncertainty does not drive settlement. You asked a question, Justice Scalia, about other reasons why there are incentives for settlement, and I'd point out a third, fourth and fifth one. One, you do get to settle your claims that the Government is bringing against you, which is a powerful incentive to settle, to have peace with the Government in certainty. And then a further point is that you get no better remedy necessarily. There is no reason to walk away from the settlement with the Government, and I don't believe the Government can point to any examples where people have walked away from settlements in order to pursue 107 claims, because 107 doesn't necessarily lead to a windfall. If you're a liable person or potentially liable person, you're going to see your defendants raise your liability and they are going to interpose a cross-claim under Section 113. And finally--
John G. Roberts, Jr.: Is that how it works? They would have to, if you bring a 107 action, the defendant has to bring his responsive action under 113? Or is it as, I guess your friend had stated earlier, equitable principles are going to lead to an allocation of responsibility under 107?
Jay D. Geck: --I would rely first on the textual basis, that any person can bring a cost recovery claim. And then the text in Section 113(f)(1) says that any person sued under Section 107 may bring their contribution claim against any other person. That would naturally include even the plaintiff in that claim.
Antonin Scalia: The last sentence of (f)(1), right?
Jay D. Geck: The fifth sentence of (f)(1) is what I was referring to. Any person may seek contribution from... and this is at 67a of the petition, and I believe it's 9a or 11a of the U.S. brief... any person may seek contribution from any other person who is liable or potentially liable under Section 107 during or following the 107 action. A 113 action supplements the 107 action that the government is so concerned about. Turning then to the question that this would bypass contribution protection: As a threshold matter, that is an issue that is rooted in the language of Section 113(f)(2). It is not a signal as to how to interpret Section 107 itself, because there are a host of potential 107 actions that might come to bear that the United States admits to and those actions could equally be posed. But more importantly perhaps is that because any person who does a settlement with the Government would raise their settlement either as a defense or as a counterclaim, as my colleague said, the court would have the authority under 113(f)(1), the third sentence, there to allocate and apportion responsibility among all liable persons. And at that point, if it had been a judicial settlement that would be very strong evidence that you had paid your proportionate share to the site. Furthermore, what the Government is overlooking is the settlements, there are a number of checks and balances on settlements. This is not a real world problem that the Government describing. The matters addressed, provision of the settlement that the EPA very carefully crafts, doesn't overreach. Occasionally it will, but when it does address an entire cleanup at a site that signals that the EPA is going to be in control of the cleanup for the remainder of the site and you're not going to have unknown parties coming in and entering a site. To do so would be in fact inconsistent with the national contingency plan and you would never make the elements of proving consistency with the national contingency plan in triggering a 107 right.
Antonin Scalia: What's the meaning of that last sentence in (f)(1), "Nothing in this subsection shall diminish the right of any person to bring an action of contribution in the absence of a civil action. " of a civil action under 9606 or 9607? What are they referring to.
Jay D. Geck: Well, it clearly indicates that there is a savings for other contribution rights that may exist under other areas of law.
Antonin Scalia: State law?
Jay D. Geck: State law is certainly a possibility there and that would of course be a stronger indicator that you could give a broader reading to contribution protection under (f)(2) and that's what several courts have done. But the scope of whether a State law meets contribution protection has been debated in the courts and it's of course not before us today. In the end, the last and most important point is that the Government's construction not only bars cost recovery from potentially liable persons even an innocent person who reads Section 107 would not step forward. If you touch a site and you begin operating and moving waste... and Mr. Chief Justice, your hypothetical about a do-gooder organization that might come in and do cleanups. There is a good likelihood that they would be receiving a counterclaim that would say that they had operated the site and become a liable party. And that could litigate for years. So in the end, in the end of the case, the United States leaves no incentive for private cost recovery and there are 400,000 sites that do need cleanup, and Congress did contemplate there would be two cause of actions, one under 107 for cost recovery when people had incurred costs, and the other one would be for contribution when people had been sued or had settled their civil suit liability. If there is no further questions, thank you.
John G. Roberts, Jr.: Thank you, Mr. Geck. Mr. Hungar, you have four minutes remaining.
Thomas G. Hungar: Mr. Chief Justice: Justice Souter, in further answer to your question, EPA can and does send PRP letters to Federal PRP's without approval from the Justice Department. The approval is only for a unilateral administrative order under Section 106.
David H. Souter: So the only thing they would need the Attorney General's approval for would be institution of suit?
Thomas G. Hungar: Or a unilateral administrative order.
David H. Souter: Could they institute suit?
Thomas G. Hungar: Well, in our view the EPA can't sue the Department of Defense because there would be no justiciable controversy. With respect to the implied repeal issue that was discussed, we disagree strongly with the assertion that there was this unanimous group of ten or some cases prior to 1986. In fact the cases were divided, as we explain in our reply brief.
Antonin Scalia: But even if there wasn't, you wouldn't have your principal argument, which is, you know, which is that the reason not to interpret 107 the way your friends on the other side want is that you're going to destroy the settlement provision of 113, which didn't use to exist. What argument would you make for having us read the word "other" in the what seems to me strange way you want?
Thomas G. Hungar: Your Honor, the point is that the settlement bar under their interpretation is either eviscerated, as Respondents amici argue, or that's the position that they take, that they want to be able to sue for cost recovery and evade the settlement bar. Respondent of course doesn't make that argument because they don't have to in this case. But unless the Court imports the settlement bar into cost recovery actions, there's going to be this huge problem. And if the Court does import--
Antonin Scalia: You're missing my point. My point is the settlement bar didn't used to exist. So previously, whether the cases were split or not, there was... your best argument for the proposition that 107(a) does not permit suit did not exist.
Thomas G. Hungar: Your Honor, as I understand the argument it's that there was this unanimous pre-1986 body of law and it was completely clear and perfectly understood that there was this cause of action.
Antonin Scalia: Assume it didn't exist. Assume that body of law didn't exist. But what would you have argued when somebody came in and said 107, this provision, includes PRP's? You may have argued... your best argument would not have been available.
Thomas G. Hungar: But, Your Honor, the point is it was not clear in 1986 what this language meant and what the extent of the PRP rights were. Congress addressed that question. There is not a hint of a suggestion in the legislative history that Congress was recognizing a PRP action under 107 independent of Section 113. Congress spoke to the question of PRP's suing and the only way it spoke to it explicitly was in Section 113. When Congress says that, this Court has said over and over again that when Congress speaks in an area of uncertainty, as in Fausto, as in Brock against North Dakota, as in the State of Vermont, is where the prior asserted right was not clearly established, was not authoritatively recognized, it's not an implied repeal question. It's a question of reconciling the statutes in a way that gives effect to the later statutes, a more specific statute. Which as here, Section 113, their interpretation gives effect to part of it because they say oh well, let's borrow a settlement bar to make it all work, but you can't do... you can't do it that way. The Court rejected that very same approach in the Rancho Palos Verdes case from a couple of terms ago. We agree that you need to borrow the limitations of Section 113(f). You just need to borrow all of them, including the one that they can't satisfy, which is that Congress said for suits by PRP's against PRP's, just like is normally the case among joint tort feasors, it's a contribution suit and they have to wait for a law suit or for a settlement, or some discharge of the liability. And that also avoids burdening the courts with the extremely time-consuming and costly and difficult question of assessing whether the NCP has been complied with, whether the costs comply with the national contingency plan. Because if they settled, then the expert agency has already had a chance to address that and the court doesn't need to get into it in anywhere near the same detail. Their approach is a recipe for burdening the Federal courts with claims that Congress did not clearly indicate should be there. If States want to provide contribution actions that allow these sorts of claims they can, and many States have done so, including Washington State, which is here. So parties can bring these claims in State court if they want to. They can get settlements from the States if they want to and are willing to pay the costs. So the burdens that they identify are not there. Implied repeal does not apply here and because of the uncertainty, as we indicated at pages 9 through 10 of our reply brief and footnote 5, there was no unanimous widespread consensus among the Federal courts. This just hasn't come up very much, and the courts were divided. I'd also like to address... thank you.
John G. Roberts, Jr.: Thank you, Mr. Hungar. The case is submitted.


Warren E. Burger: We will hear arguments next in 73-1012, Gulf Oil against Copp Paving Company.
Moses Lasky: Mr. Chief Justice --
Warren E. Burger: Mr. Lasky.
Moses Lasky: -- and may it please the Court. This case concerns the jurisdictional requirements of interstate commerce in three Sections of the Clayton Act. Section 2 which is the Robinson-Patman Act, Section 3 which is the provision prohibiting certain tie-in arrangements and Section 7 which is commonly called the Celler-Kefauver Act or Amendment which has to do with mergers and acquisitions. The case does not involve any question at all of what Congress’ has powers are. It involves no question what Congress can do. It only involves the question of what in fact it has seen fit to do by the legislation it has enacted. Now the starting point, I assume of any consideration of what an act of Congress means is the language of the Act of Congress. The jurisdictional requirements of the three Acts that I speak of are much the same and are to be contrasted with the provision of the Sherman Act because they are much narrower. Now, each one of these three Acts, each one requires that the proscribed conduct have an effect and an impact on interstate or foreign commerce. Now, I'll use the word “commerce” hereafter for interstate or foreign commerce. The language of the three is identical. It is required that the “effect maybe substantially to lessen competition or attempt to create a monopoly in the line of commerce” and in this respect these three are identical with the Sherman Act. They require an effect or impact on interstate commerce, but the Sherman Act requires no more. Under the Sherman Act it makes no difference who commits the conduct or where it occurs if it has an effect on interstate commerce. But here under these three Clayton Act Sections, much more is required. Effect or impact which is expressly spelled out and required is only one of several of the tests of jurisdiction mandated by these Acts. Robinson-Patman requires, in addition to the effect or impact, that the discriminatory sale would be and I quote “by a person engaged in commerce, in the course of such commerce” and again a discrimination requires at least two sales to have a discrimination between it requires “either or any of the purchasers involved must be in commerce,” that’s in addition to the Effect or Impact Clause. Section 3 has almost the identical language. It requires that the tie-in conduct be that of a “person engaged in commerce in the course of such commerce.” In Section 7, the anti-acquisition section, requires not only that the effect be adverse on a line of commerce, but that the acquiring corporation be “a corporation engaged in commerce” and in addition, that the acquired corporation be a corporation engaged in commerce. Now, before we go further to discuss the effect of the Act besides from this case, it's necessary to find out what product we’re talking about because that's the key to this case. The product involved in this case is a substance known as asphaltic concrete, not asphalt. And I emphasize it is not liquid asphalt because liquid asphalt moves in interstate commerce and while this case started is one of what later became a consolidated as the Western Liquid Asphalt cases, the trial court carved out the asphaltic concrete aspects of it and left the liquid asphalt aspect still going, they're still in the Court, they're still proceeding with the rest of the Western Liquid Asphalt cases. Asphaltic concrete, let me say when the Court carved it out, the Court said at the beginning there seem to be a jurisdictional element upon asphaltic concrete. It directed the plaintiff to take all the discovery he needed on the jurisdictional elements, come back and make a showing and when that occurred, the Court ruled out the asphaltic concrete elements. Asphaltic concrete is a product made in California and which by its very nature cannot be sold across the state line. It's a bulky product, composed of 95% of rocks, sand and gravel which is mined in the local pits and the other 5% is liquid asphalt, also produced in California from California refineries. This material is used as a topping, black top, streets, roadways, driveways. In order to make it, you mix the rock with hot asphalt in a hot plant and the product has to be laid down before it cools. Consequently, it has to be laid down within 35 miles from the plant where it's made. That means it can't move in interstate commerce. The hot plants of all the parties in this case are located in California. The hot plants of the plaintiff were all located in the Los Angeles basin. The hot plants of the acquired corporation involved in the Section 7 aspect of this case, Sully-Miller are all located in the Los Angeles basin, that is to say Los Angeles County and the suburbs around it. None of the asphaltic concrete made or sold involved in this case ever got within 200 miles of an interstate border of California. Now, the Robinson-Patman in Section 3 accounts concerns sales of asphaltic concrete by the petitioner, industrial asphalt. It is accused of having discriminated and yet none of its asphaltic concrete sales ever got within 200 miles from the California border. None of never crossed the state line, none of never could cross a state line. Now, the Section 7 count involves the acquisition by Union Oil Company which is not in the asphaltic concrete business of one Sully-Miller. Sully-Miller has its plants solely in Los Angeles County and the neighborhood of Orange County and makes asphaltic concrete from local materials, sells it within a 35 mile range from Los Angeles. It also engages as a paving contractor and the complaint, the amended complaint in this case alleged that Sully-Miller's business was engaged -- being engaged primarily in the business of operating asphaltic concrete, hot plants and contracting street improvements. It's a street paver and all -- this appears at the appendix of Page 15. It is plants from the Los Angeles basin. It's a contractor in paving streets in that particular area, all 200 miles or thereabouts from the border. Now upon this state of undisputed fact, the District Court ruled that the jurisdictional requirements of Sections 2, 3 and 7 were absent. It said that the Robinson-Patman Act did not apply because no sale by industrial of asphaltic concrete was in commerce. No sale was made in the course of commerce. For the same reason they held that the Section 3, the tie-in section did not apply and it held that Section 7 did not apply to Union's acquisition of Sully-Miller for the simple reason that Sully-Miller was not a corporation engaged in commerce. I may add that the District Court also found there wasn't any effect on interstate commerce and it had given the plaintiff, the petitioner every opportunity show their jurisdictional facts. This case went to the Court of Appeals on an interlocutory appeal, allowed under 1292-B and that Court reversed. Now, until the decision in this case, it had been the uniformed decision of a mass of cases, the Robinson-Patman does not apply unless at least one of the sales, involving a discrimination crosses a state line. The Court of Appeals dismissed this state line test and it did it because it said asphaltic concrete is used on streets and roads. Streets and roads of all hook up and eventually something crosses the state line, so you have an interstate highway system. Therefore, the roads and the streets are linked up to “an instrumentality of commerce” and therefore said it as a matter of law, the seller and the sale are engaged in commerce. As for Sully-Miller, it held that as a matter of law, it was engaged in commerce because it sold asphaltic concrete for use on roads and because it paved streets, as I say all 200 miles from an interstate border. Now, the Ninth Circuit ignored the finding of no effect on the interstate commerce because it said that because an interstate instrumentality of commerce was involved a road, everybody was engaged in commerce and if you're engaged in commerce the effect for all those as a matter of law, I'm not going to discuss that. This Court, we petitioned for cert -- on the certiorari upon the Sherman Act issue and certiorari was not allowed on that so that's not before us. The proposition we advance now is that the judgment and decision was wrong because no sales were made in commerce by anybody engaged in commerce and nobody engaged in commerce was acquired. Now, just this year on May 24th, the Fifth Circuit in Scranton Construction versus Litton Industries reported in 494 F2d 778 referred to the decision below the very one I'm here on now, it referred to it as a “new deliverance” and refused to follow it. Now, this Court granted certiorari to review this new rule of law and yet now that we're here, the decision of the Court of Appeals for the Ninth Circuit is barely defended. The Solicitor General has filed an amicus brief the other day in which he urges that Sections 3 and 7 should be read as if they were coextensive with the Sherman Act. In other words, you delete all of the language above sales in commerce, but in the course of commerce by a corporation engaged in commerce and treat the Acts as if they required no more than the Sherman Act and curiously enough he says nothing about the Robinson-Patman Act, he just talks about Section 3 and Section 7. We know of course that the Department of Justice in the antitrust division had never been lovers of the Robinson-Patman Act and apparently they don't seem to defend the decision, but the language of those Sections were all the same and whatever decision is made about 3 or 7, would of necessity have apply the Robinson-Patman Section 2. The principal argument made in respondent’s brief is exactly the same as the Solicitor's General, namely that with respect to all of these Acts, Robinson-Patman 2 and 7, they should be read as expansively as the Sherman Act and that nothing is required other than effect on commerce. Now, if I maybe forgiven to characterize them, I would say that these two lines of argument are, 1, would work surgery by excising the specific provisions of Robinson-Patman Sections 3 and 7 and the other, that of the Court below is applying LSD to the language and get -- arriving at a rather strange interpretation. Now, let me turn to the reason in the Court of Appeals. The great Chief Justice Treanor of California once wrote about the use of magic words as if the use of a certain phraseology, somehow decided the case and I respectfully submit that that’s what the Ninth Circuit did. It picks up the words, interstate highway which has an inflated sound divorced from reality, but tax -- a compulsive significance to that and then also we'll look for analogy to the Fair Labor Standards Act which is an Act of quite different language, purpose and background. The Court below talks about interstate highways and if the Court please, that is not a legal term. It is a loose terminology for roads, for whose construction the Federal Government under grant made statute, the Federal Highway Aid Act contributes money. It does so for forest roads, trails, farm to market roads, local rural roads, streets, parkways, county roads, and also state roads selected to connect the principal centers. Respondent called on the petitioners to admit by request for admission and we did admit that 98.5% of these funds received by the State of California went to county roads. We've already observed that Sully-Miller was a street paver in the suburbs of Los Angeles. All roads for which Federal Aid is given are under the jurisdiction of the state, local governments. Federal Act, the Aid Highway Act does not presume to regulate highways or operations of those working on them or supplying materials for them. It does do more than attached conditions with a gift and none of those conditions have anything to do with the problems of this case. And so I respectfully submit that what the decision of the Court below comes to is to advance this proposition, “since every street in every city and every road anywhere in United States unless it connects with other is part of an interstate network of highways. Therefore, the seller of anything used in a street or a road is in commerce and by that reasoning the local society for the care over the blind that sells brooms made by the blind for use to sweeping the streets or the streets cleaner, or the tow truck operator who removes illegally parked cars on the streets, all are engaged in commerce.” Now, this Court over and over again in its interstate commerce decisions has said that the conception -- the concept of commerce is guided by the most practical considerations. Commerce is an intensely practical concept drawn from the normal and accepted course of business, these are statements the Court has made. Now, if this case concerned workers constructing a lock across the canal or a draw bridge across the Mississippi, one might see such an immediacy to their operation of an interstate facility that you might come to the conclusion there practically that the construction of that bridge was an interstate commerce, but I submit that from any practical reality, selling asphaltic concrete to put on a street or a road, 200 miles from the border simply is a horse of another color and so of paving a city street. Now, if the Court please, we get back to our fundamental. Our system of government is federalism, certainly where a federal statute plainly applies. It has to be applied, but when to apply it is going to intrude upon local policies and to apply it requires some procrustean treatment, some stretching then we've been taught by the decisions of this Court that the hand is stayed. Now, the philosophy of the Robinson-Patman Act is a highly debatable one. This Court has frequently commented how it is in conflict with the philosophy of the Sherman Act. California is considered that Robinson-Patman and has deliberately refused to adapt the Robinson-Patman type statute. California's Supreme Court reviewing the matter has said no. California has no Robinson-Patman type of statute and has noted this conflict of policy and yet what has happened here is that a Federal Act has been extended in the California area to something local on misconception that asphaltic concrete is put upon a road. Now if the Court please, California also has not adapted any general anti-acquisition statute. The proposed uniform state antitrust law has deliberately left out a Section 7 type of provision on the idea that acquisitions at a local level have a different impact and deal with different kind of policies and on a national level. So we say again, the question here is not how far Congress could go. I think Congress could go to full length here if it wished to. How far has it gone and in deciding that question, respect has to be paid first to the language Congress has used and secondly, to the Federal structure of the union.
Byron R. White: Under Section 7 (Voice Overlap) --
Moses Lasky: Yes, Your Honor.
Byron R. White: -- if the the company -- one of the company has to be engaged in (Voice Overlap)?
Moses Lasky: The company -- both of them.
Byron R. White: The transactions -- there isn't any transaction language --
Moses Lasky: No, the requirement of Section 7 is Your Honor notes is that the companies, the acquirer and the acquiring each must be engaged.
Byron R. White: But it does -- they don't don't need to be engaged in commerce with respect to the products involved, I take it?
Moses Lasky: I doubt it. But the evidence --
Byron R. White: But doesn't take much of an involvement in commerce side --
Moses Lasky: Well, except the Sully-Miller is not. [Attempt to Laughter] And the plaintiff was called on to produce all his evidence, complete discovery as to what Sully-Miller did and Sully-Miller is simply a local paving contractor and manufacturer of this stuff for local stuff.
Byron R. White: You mean (Voice Overlap) there's no evidence, even bought a broom out of the state?
Moses Lasky: No evidence whatever on that aspect. The respondent produced no evidence whatever on it but the only business it's in --
Byron R. White: How about the machinery that it used in its business?
Moses Lasky: There is a -- one could take a guess of course that it buys its machinery and one might guess that the machinery may have originated originally out of the state, probably came into rest in the state, but there's no evidence on the record on it.
Byron R. White: What if it did? That's engaging in commerce, I take it, isn't it?
Moses Lasky: May or may not be, it depends -- perhaps on how they bought it.
William J. Brennan, Jr.: I take it they have this large delivery trucks (Inaudible) you know, these specially constructed things?
Moses Lasky: Oh! I -- again, the record is silent on it but I would have to take a guess that they do.
William J. Brennan, Jr.: (Voice Overlap) around town here, this enormous (Inaudible) --
Moses Lasky: I would guess they do.
Byron R. White: They are -- those are (Voice Overlap) -- in California, I guess, are they?
Moses Lasky: Pardon?
Byron R. White: They aren't made in California, are they?
Moses Lasky: I don't know. There are large assembly plants in California of all kinds on machinery.
Byron R. White: So it -- but in any event, even if there just isn't any evidence in the record (Voice Overlap).
Moses Lasky: The evidence, that is right. The record is silent on that. Again, I repeat the Court called upon the respondent to take all the discovery and produce all the evidence that they'd wished to bring to bear on the subject and they said nothing about this.
Potter Stewart: Well, what if they did? Am I engaged in commerce just because I drive a car that was made in Detroit?
Moses Lasky: Well, I wouldn't think so.
Warren E. Burger: Or a carpenter if he is using hammer and nails that were made outside the state, a building contractor?
Moses Lasky: I wouldn't think that put them on commerce either.
Warren E. Burger: So the size of the tool whether it's a great big earth moving machine or a hammer wouldn't make any difference --
Byron R. White: But you'd have quite a bit different argument, you'll have a different case if there is evidence in the record that they were regularly buying trucks from out of the state?
Moses Lasky: Yes sir. I suppose if there was a constant flow of trucks here --
Byron R. White: Well, it's in continuous business, its using up its trucks all the time?
Moses Lasky: Yes and -- very well, they may be buying them locally from local distributors. Again, while it's in the record we all know that this kind of machinery is sold by local distributors.
Byron R. White: Well, I agree, but you'd have a different case?[Attempt to Laughter]
Moses Lasky: We would be talking about different things. We would be talking about different things, but I can only talk about the things in the record and I can only reply to the arguments my opponents have presented.
Byron R. White: There isn't anything in the record?
William J. Brennan, Jr.: And the only thing --
Moses Lasky: No, it's silent. The record is silent on it.
William J. Brennan, Jr.: The only thing that bears on it at all is that this end product by Sully is laid on roads?
Moses Lasky: That's right.
William J. Brennan, Jr.: Some of which at least are constructed with -- with the aid of federal funds.
Moses Lasky: That's right, exactly so.
William J. Brennan, Jr.: (Inaudible)
Moses Lasky: The decision of the Court of Appeals was based upon that one fact that a road is an instrumentality of commerce. The asphaltic concrete went into the road therefore it was as a matter of law engaged in commerce. That's the decision of the Court of Appeals. It's not strongly defended as I say. It's being defended -- even the judgment is being defended on the notion that these -- you just ignore the provisions of these laws and say that Congress intended to exercise its commerce power to the utmost using exactly the language which has often been used about the Sherman Act. Now may I --
Harry A. Blackmun: Parsley put you'd be making a different here if this were centered in San Diego rather than Los Angeles?
Moses Lasky: No, I don't think so.
Harry A. Blackmun: Even though then the state line is within 35 miles of such plants as well?
Moses Lasky: When we said 35 miles everybody has been talking generously, the evidence that talks about 5 to 50. I think if we had a case in Delaware, a hot plant operator in Delaware, you might have a different problem because the hot plant might very well be crossing the border, but you get -- that border around Southern California surrounds largely desert area. But again one can conceive where a hot plant operator might be of the crossing state lines. Here, it did not.
Warren E. Burger: But is it true here in Washington. The hot plant operator here might deliver both in Virginia and in Maryland.
Moses Lasky: He might very well. That would be a different case. Then we'd have at least one sale crossing a state line then we'd have the counterpart of Sully-Miller engaged in paving all around here, you'd have interstate commerce? That's a different case and the decision we asked the Court to render here is not going to be the last decision. It’s going to be asked to rendering in questions like this. Now, the second advice from the reasoning of the Court below is that it appeals to the analogy of the Fair Labor Standards Act. That Act provides for minimum wages not only to employees engaged in commerce, but also to employees “engaged in the production of goods for commerce.” And this Court by a divided decision held that the last words even meant engaged in the production of goods for those engaged in commerce based upon the particular legislative history of that Act. Amendments to that Act, divided definitions whereby if some employees who are engaged in commerce or in the production of goods for commerce, all employees of the same employer are deemed brought under the Act and Congress could do that sort of thing on Robinson-Patman in Section 3 and unquestionably on Section 7 if it wished to do so, but it hasn't done so. Now, if the Court please, and this brings me to the Solicitor General's line of argument which I think I can answer very quickly. Whenever Congress has got on legislate, conflicting views of politics, economics, sociology are pressed upon Congress, each one contending for an option and in the end Congress draws a line and makes compromises. Now, one can grant that legislation is to be given a scope commensurate with Congress’ purposes and aims, but Congress is the only judge not only of its goals but of the means it wishes to advance them and of the compromises it wishes to make among the contending factors. And the only way Congress has to express the solution and the compromises that it's forced to make is in words. Now, here the words are absolutely clear, not to be ignored. And talking about the Sherman Act, this Court for example in the Southeastern Underwriters case said the words of the Sherman Act were all comprehensive. Any person who restrains trade falls under the ban of that Act. Here, we have an English language of body of terms each of separate meaning, each having an -- with an ascending order of reach. We have in commerce. We have production of goods for commerce. We have production of a working on instrumentalities of commerce. We have the words affecting commerce and each one reaches out a little further and the affecting commerce reaches out to the farthest extent of the law. These words compromise an armory from which Congress can draw when it wishes to express of its particular purpose and if the Court is to treat all these words as synonymous as you're being asked to do by the Solicitor General, I respectfully submit that corrupts the language, corrupts the law and it impoverishes Congress because it takes away from Congress words it can use. And if the Court should hold that the words selected so carefully by the legislative branch such as engaged in commerce, engaged in the course of commerce don't mean anymore than affecting commerce then Congress is going to be hard put to express itself when it doesn't wish to exercise the commerce power to its fullest extent. It will be driven to circumlocution, negatives and provisos. Now everybody knows the legislative history of the Robinson-Patman Act demonstrates, that Robinson-Patman was the product of a complex series of legislative proposals ending up in compromises that have given many courts headaches in trying to resolve the meaning. I was quoting at that point from the Meyer Paving case in which this Court denied certiorari, recently in 414 US.
Potter Stewart: When was it enacted, in the 30’s?
Moses Lasky: Robinson-Patman? Robinson-Patman was of 1936 Amendment to Section 2 of Clayton which was 1940.
Potter Stewart: It was 1936?
Moses Lasky: Approx -- yes, 1936. Enacted incidentally after this Court in the Bendheim Brothers case or the Darby case and the cases involving Labor Relations Act had explicated the far reach of power that Congress possessed. No doubt as to that this Court by the time Congress enacted this Act had told Congress that it had the most extensive power, nevertheless, there was no extension or change in these words. Similarly, in Celler-Kefauver in 1951 -- 50, they didn't change the words that they used in 1914 despite the fact that they could have and gone much further. I submit the case with this submission. The Congress of the United States still sits and if it is of view, the Department of Justice or others, these three Acts should be made extensive in their reach with the Sherman Act, they can go over to Congress and try to get them enacted and go through all the debates that will occur before the various legislative committees. But in the time we just been going through a period when everybody has been much concerned that the several departments of the government stay within our own proper ambit and at a time like that that's where they should go to Congress not to this Court. The words of these statutes are clear. Thank you.
Warren E. Burger: Thank you. Counsel, I don't think we'll ask you to take a minute-and-a-half to divide your argument. We'll begin at 9:00 o'clock there.