COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.

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157 OCTOBER TERM, 2004
Syllabus
COOPER INDUSTRIES, INC. v. AVIALL
SERVICES, INC.
certiorari to the united states court of appeals for
the fifth circuit
No. 02–1192. Argued October 6, 2004—Decided December 13, 2004
The enabling clause of § 113(f)(1) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (CERCLA), as added
by the Superfund Amendments and Reauthorization Act of 1986
(SARA), provides that any person “may” seek contribution from any
other person liable or potentially liable under CERCLA § 107(a) “during
or following any civil action” under CERCLA § 106 (which authorizes
the Federal Government to compel responsible parties to clean up con-
taminated areas, see Key Tronic Corp. v. United States, 511 U. S. 809,
814), or CERCLA § 107(a) (which empowers the Government to recover
its response costs from potentially responsible persons (PRPs)). Sec-
tion 113(f)(1)’s saving clause provides: “Nothing in this subsection shall
diminish the right of any person to bring an action for contribution in
the absence of a civil action under” § 106 or § 107. SARA also created
a separate express right of contribution, § 113(f)(3)(B), for “[a] person
who has resolved its liability to the United States or a State for some
or all of a response action or for some or all of the costs of such action
in an administrative or judicially approved settlement.”
Cooper Industries, Inc., owned four Texas properties until 1981, when
it sold them to Aviall Services, Inc. After operating those sites for
several years, Aviall discovered that both it and Cooper had contami-
nated them when hazardous substances leaked into the ground and
ground water. Aviall notified the State of the contamination, but nei-
ther the State nor the Federal Government took judicial or administra-
tive measures to compel cleanup. Aviall cleaned up the properties
under the State’s supervision and sold them to a third party, but remains
contractually responsible for $5 million or more in cleanup costs. Aviall
filed this action against Cooper to recover such costs. The original
complaint asserted, inter alia, a claim for cost recovery under § 107(a)
and a separate claim for contribution under § 113(f)(1). Aviall later
amended the complaint to, among other things, combine its two
CERCLA claims into a single, joint claim that, pursuant to § 113(f)(1),
sought contribution from Cooper as a PRP under § 107(a). Granting
Cooper summary judgment, the District Court held that Aviall had
abandoned its freestanding § 107 claim, and that contribution under

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158 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
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§ 113(f)(1) was unavailable because Aviall had not been sued under § 106
or § 107. The Fifth Circuit ultimately reversed, holding that § 113(f)(1)
allows a PRP to obtain contribution from other PRPs regardless of
whether the PRP has been sued under § 106 or § 107. The court rea-
soned in part that “may” in § 113(f)(1)’s enabling clause did not mean
“may only.”
Held: A private party who has not been sued under CERCLA § 106 or
§ 107(a) may not obtain contribution under § 113(f)(1) from other liable
parties. Pp. 165–171.
(a) Section 113(f)(1) does not authorize Aviall’s suit. This Court dis-
agrees with Aviall’s argument that the word “may” in § 113(f)(1)’s en-
abling clause should be read permissively, such that “during or follow-
ing” a civil action is one, but not the exclusive, instance in which a
person may seek contribution. First, the natural meaning of “may” in
this context is that it authorizes certain contribution actions that satisfy
the subsequent specified condition—i. e., those that occur “during or
following” a specified civil action—and no others. Second, reading
§ 113(f)(1) to authorize contribution actions at any time, regardless of
the existence of a § 106 or § 107(a) civil action, would render entirely
superfluous the section’s explicit “during or following” condition, as well
as § 113(f)(3)(B), which permits contribution actions after settlement.
This Court is loath to allow such a reading. See, e. g., Hibbs v. Winn,
542 U. S. 88, 101. Congress would not have bothered to specify condi-
tions under which a person may bring a contribution claim, and at the
same time allowed contribution actions absent those conditions. Sec-
tion 113(f)(1)’s saving clause does not change the Court’s conclusion.
That clause’s sole function is to clarify that § 113(f)(1) does nothing to
“diminish” any cause(s) of action for contribution that may exist in-
dependently of § 113(f)(1), thereby rebutting any presumption that the
express right of contribution provided by the enabling clause is the
exclusive contribution cause of action available to a PRP. The saving
clause, however, does not itself establish a cause of action, nor expand
§ 113(f)(1) to authorize contribution actions not brought “during or fol-
lowing” a § 106 or § 107(a) civil action, nor specify what causes of action
for contribution, if any, exist outside § 113(f)(1). Reading the clause to
authorize § 113(f)(1) contribution actions not just “during or following”
a civil action, but also before such an action, would again violate the
settled rule that the Court must, if possible, construe a statute to give
every word some operative effect. In light of provisions specifying
two 3-year limitations periods for contribution actions beginning at
the date of judgment, § 113(g)(3)(A), and at the date of settlement,
§ 113(g)(3)(B), the absence of any such provision for cases in which a

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159 Cite as: 543 U. S. 157 (2004)
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judgment or settlement never occurs also supports the conclusion that,
to assert a contribution claim under § 113(f), a party must satisfy the
conditions of either § 113(f)(1) or § 113(f)(3)(B). Given the clear mean-
ing of CERCLA’s text, there is no need to resolve the parties’ dispute
about CERCLA’s purpose or to consult that purpose at all. See Oncale
v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79. Because Aviall
has never been subject to a civil action under § 106 or § 107(a), it has no
§ 113(f)(1) claim. Pp. 165–168.
(b) The Court declines to address in the first instance Aviall’s claim
that it may recover costs under § 107(a)(4)(B) even though it is a PRP.
In view of the importance of the § 107 issue, the question whether Aviall
waived a freestanding § 107 claim, and the absence of briefing and deci-
sions by the courts below, this Court is not prepared to resolve the § 107
question solely on the basis of dictum in Key Tronic. Pp. 168–170.
(c) In addition, the Court declines to decide whether Aviall has an
implied right to contribution under § 107. To the extent that Aviall
chooses to frame its § 107 claim on remand as an implied right of contri-
bution (as opposed to a right of cost recovery), the Court notes that it
has visited the subject before, see, e. g., Texas Industries, Inc. v. Rad-
cliff Materials, Inc., 451 U. S. 630, 638–647, and that, in enacting
§ 113(f)(1), Congress explicitly recognized a particular set (claims “dur-
ing or following” the specified civil actions) of the contribution rights
previously implied by courts from provisions of CERCLA and the com-
mon law, cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S.
11, 19. Pp. 170–171.
312 F. 3d 677, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, Kennedy, Souter, and Breyer, JJ., joined.
Ginsburg, J., filed a dissenting opinion, in which Stevens, J., joined,
post, p. 171.
William Bradford Reynolds argued the cause for peti-
tioner. With him on the briefs were Lisa K. Hsiao, Dale E.
Stephenson, and Allen A. Kacenjar.
Jeffrey P. Minear argued the cause for the United States
as amicus curiae urging reversal. With him on the brief
were former Solicitor General Olson, Assistant Attorney
General Sansonetti, Deputy Solicitor General Hungar, Dep-
uty Assistant Attorney General Clark, and Paul S. Weiland.

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160 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
Opinion of the Court
Richard O. Faulk argued the cause for respondent. With
him on the brief were Cynthia J. Bishop, Jeffrey M. Gaba,
Walter Dellinger, and Pamela Harris.*
Justice Thomas delivered the opinion of the Court.
Section 113(f)(1) of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980 (CERCLA) 1
allows persons who have undertaken efforts to clean up
properties contaminated by hazardous substances to seek
contribution from other parties liable under CERCLA.
Section 113(f)(1) specifies that a party may obtain contribu-
tion “during or following any civil action” under CERCLA
§ 106 or § 107(a). The issue we must decide is whether a
*Briefs of amici curiae urging affirmance were filed for the State of
New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin
J. Halligan, Solicitor General, Robert H. Easton, Assistant Solicitor Gen-
eral, and Peter H. Lehner, Karen R. Kaufmann, and Gordon J. Johnson,
Assistant Attorneys General, by Anabelle Rodrı´guez, Secretary of Justice
of Puerto Rico, and by the Attorneys General for their respective States
as follows: Terry Goddard of Arizona, Bill Lockyer of California, Ken
Salazar of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady
of Delaware, Lisa Madigan of Illinois, Charles C. Foti, Jr., of Louisiana,
Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Jeremiah
W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Brian Sandoval
of Nevada, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W. A.
Drew Edmondson of Oklahoma, Gerald J. Pappert of Pennsylvania,
Patrick C. Lynch of Rhode Island, Henry McMaster of South Carolina,
Paul G. Summers of Tennessee, Christine O. Gregoire of Washington,
Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming;
for Atlantic Richfield Co. et al. by Joel M. Gross and Albert M. Cohen; for
ConocoPhillips Co. et al. by Richard P. Bress, John McGahren, David H.
Becker, and David L. Mulliken; for Lockheed Martin Corp. by Miguel A.
Estrada, Andrew S. Tulumello, and James R. Buckley; and for the Super-
fund Settlements Project et al. by Michael W. Steinberg, Harry M. Ng,
Ralph J. Colleli, Jr., Kenneth R. Meade, William R. Weissman, and Paul
D. Ackerman.
1 Section 113(f)(1) is codified at 42 U. S. C. § 9613(f)(1). We refer
throughout, for the most part, to sections of CERCLA rather than the
U. S. Code.

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private party who has not been sued under § 106 or § 107(a)
may nevertheless obtain contribution under § 113(f)(1) from
other liable parties. We hold that it may not.
I
Under CERCLA, 94 Stat. 2767, the Federal Government
may clean up a contaminated area itself, see § 104, or it may
compel responsible parties to perform the cleanup, see
§ 106(a). See Key Tronic Corp. v. United States, 511 U. S.
809, 814 (1994). In either case, the Government may re-
cover its response costs under § 107, 42 U. S. C. § 9607 (2000
ed. and Supp. I), the “cost recovery” section of CERCLA.
Section 107(a) lists four classes of potentially responsible
persons (PRPs) and provides that they “shall be liable” for,
among other things, “all costs of removal or remedial action
incurred by the United States Government . . . not inconsist-
ent with the national contingency plan.” § 107(a)(4)(A).2
Section 107(a) further provides that PRPs shall be liable for
“any other necessary costs of response incurred by any other
person consistent with the national contingency plan. ”
§ 107(a)(4)(B).
After CERCLA’s enactment in 1980, litigation arose over
whether § 107, in addition to allowing the Government and
certain private parties to recover costs from PRPs, also al-
lowed a PRP that had incurred response costs to recover
costs from other PRPs. More specifically, the question was
whether a private party that had incurred response costs,
but that had done so voluntarily and was not itself subject
to suit, had a cause of action for cost recovery against other
PRPs. Various courts held that § 107(a)(4)(B) and its prede-
cessors authorized such a cause of action. See, e. g., Wick-
land Oil Terminals v. Asarco, Inc., 792 F. 2d 887, 890–892
2 The national contingency plan specifies procedures for preparing and
responding to contaminations and was promulgated by the Environmental
Protection Agency (EPA) pursuant to CERCLA § 105, 42 U. S. C. § 9605
(2000 ed. and Supp. I). The plan is codified at 40 CFR pt. 300 (2004).

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(CA9 1986); Walls v. Waste Resource Corp., 761 F. 2d 311,
317–318 (CA6 1985); Philadelphia v. Stepan Chemical Co.,
544 F. Supp. 1135, 1140–1143 (ED Pa. 1982).
After CERCLA’s passage, litigation also ensued over the
separate question whether a private entity that had been
sued in a cost recovery action (by the Government or by
another PRP) could obtain contribution from other PRPs.
As originally enacted in 1980, CERCLA contained no provi-
sion expressly providing for a right of action for contribu-
tion. A number of District Courts nonetheless held that,
although CERCLA did not mention the word “contribution,”
such a right arose either impliedly from provisions of the
statute, or as a matter of federal common law. See, e. g.,
United States v. New Castle County, 642 F. Supp. 1258, 1263–
1269 (Del. 1986) (contribution right arises under federal com-
mon law); Colorado v. ASARCO, Inc., 608 F. Supp. 1484,
1486–1493 (Colo. 1985) (same); Wehner v. Syntex Agribusi-
ness, Inc., 616 F. Supp. 27, 31 (ED Mo. 1985) (contribution
right is implied from § 107(e)(2)). That conclusion was de-
batable in light of two decisions of this Court that refused to
recognize implied or common-law rights to contribution in
other federal statutes. See Texas Industries, Inc. v. Rad-
cliff Materials, Inc., 451 U. S. 630, 638–647 (1981) (refusing
to recognize implied or common-law right to contribution in
the Sherman Act or the Clayton Act); Northwest Airlines,
Inc. v. Transport Workers, 451 U. S. 77, 90–99 (1981) (refus-
ing to recognize implied or common-law right to contribution
in the Equal Pay Act of 1963 or Title VII of the Civil Rights
Act of 1964).
Congress subsequently amended CERCLA in the Super-
fund Amendments and Reauthorization Act of 1986 (SARA),
100 Stat. 1613, to provide an express cause of action for con-
tribution, codified as CERCLA § 113(f)(1):
“Any person may seek contribution from any other per-
son who is liable or potentially liable under section

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9607(a) of this title, during or following any civil action
under section 9606 of this title or under section 9607(a)
of this title. Such claims shall be brought in accordance
with this section and the Federal Rules of Civil Proce-
dure, and shall be governed by Federal law. In resolv-
ing contribution claims, the court may allocate response
costs among liable parties using such equitable factors
as the court determines are appropriate. Nothing in
this subsection shall diminish the right of any person to
bring an action for contribution in the absence of a civil
action under section 9606 of this title or section 9607
of this title.” Id., at 1647, as codified in 42 U. S. C.
§ 9613(f)(1).
SARA also created a separate express right of contribution,
§ 113(f)(3)(B), for “[a] person who has resolved its liability to
the United States or a State for some or all of a response
action or for some or all of the costs of such action in an
administrative or judicially approved settlement.” In short,
after SARA, CERCLA provided for a right to cost recovery
in certain circumstances, § 107(a), and separate rights to con-
tribution in other circumstances, §§ 113(f)(1), 113(f)(3)(B).3
II
This case concerns four contaminated aircraft engine
maintenance sites in Texas. Cooper Industries, Inc., owned
and operated those sites until 1981, when it sold them to
Aviall Services, Inc. Aviall operated the four sites for a
number of years. Ultimately, Aviall discovered that both it
and Cooper had contaminated the facilities when petroleum
3 In Key Tronic Corp. v. United States, 511 U. S. 809 (1994), we observed
that §§ 107 and 113 created “similar and somewhat overlapping” remedies.
Id., at 816. The cost recovery remedy of § 107(a)(4)(B) and the contribu-
tion remedy of § 113(f)(1) are similar at a general level in that they both
allow private parties to recoup costs from other private parties. But the
two remedies are clearly distinct.

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164 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
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and other hazardous substances leaked into the ground and
ground water through underground storage tanks and spills.
Aviall notified the Texas Natural Resource Conservation
Commission (Commission) of the contamination. The Com-
mission informed Aviall that it was violating state environ-
mental laws, directed Aviall to clean up the site, and threat-
ened to pursue an enforcement action if Aviall failed to
undertake remediation. Neither the Commission nor the
EPA, however, took judicial or administrative measures to
compel cleanup.
Aviall cleaned up the properties under the State’s supervi-
sion, beginning in 1984. Aviall sold the properties to a third
party in 1995 and 1996, but remains contractually responsible
for the cleanup. Aviall has incurred approximately $5 mil-
lion in cleanup costs; the total costs may be even greater.
In August 1997, Aviall filed this action against Cooper in the
United States District Court for the Northern District of
Texas, seeking to recover cleanup costs. The original com-
plaint asserted a claim for cost recovery under CERCLA
§ 107(a), a separate claim for contribution under CERCLA
§ 113(f)(1), and state-law claims. Aviall later amended the
complaint, combining its two CERCLA claims into a single,
joint CERCLA claim. That claim alleged that, pursuant to
§ 113(f)(1), Aviall was entitled to seek contribution from
Cooper, as a PRP under § 107(a), for response costs and other
liability Aviall incurred in connection with the Texas facili-
ties.4 Aviall continued to assert state-law claims as well.
Both parties moved for summary judgment, and the Dis-
trict Court granted Cooper’s motion. The court held that
4 Aviall asserts that it framed its claim in the manner compelled by Fifth
Circuit precedent holding that a § 113 claim is a type of § 107 claim.
Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924 (2000); see also,
e. g., Centerior Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F. 3d 344,
349–353 (CA6 1998); Sun Co., Inc. v. Browning-Ferris, Inc., 124 F. 3d 1187,
1191 (CA10 1997); Pinal Creek Group v. Newmont Mining Corp., 118 F. 3d
1298, 1301–1302 (CA9 1997).

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Aviall, having abandoned its § 107 claim, sought contribution
only under § 113(f)(1). The court held that § 113(f)(1) relief
was unavailable to Aviall because it had not been sued under
CERCLA § 106 or § 107. Having dismissed Aviall’s federal
claim, the court declined to exercise jurisdiction over the
state-law claims.
A divided panel of the Court of Appeals for the Fifth Cir-
cuit affirmed. 263 F. 3d 134 (2001). The majority, relying
principally on the “during or following” language in the first
sentence of § 113(f)(1), held that “a PRP seeking contribution
from other PRPs under § 113(f)(1) must have a pending or
adjudged § 106 administrative order or § 107(a) cost recovery
action against it.” Id., at 145. The dissent reasoned that
the final sentence of § 113(f)(1), the saving clause, clarified
that the federal common-law right to contribution survived
the enactment of § 113(f)(1), even absent a § 106 or § 107(a)
civil action. Id., at 148–150 (opinion of Wiener, J.).
On rehearing en banc, the Fifth Circuit reversed by a di-
vided vote, holding that § 113(f)(1) allows a PRP to obtain
contribution from other PRPs regardless of whether the
PRP has been sued under § 106 or § 107. 312 F. 3d 677
(2002). The court held that “[s]ection 113(f)(1) authorizes
suits against PRPs in both its first and last sentence[,] which
states without qualification that ‘nothing’ in the section shall
‘diminish’ any person’s right to bring a contribution action in
the absence of a section 106 or section 107(a) action.” Id.,
at 681. The court reasoned in part that “may” in § 113(f)(1)
did not mean “may only.” Id., at 686–687. Three members
of the en banc court dissented for essentially the reasons
given by the panel majority. Id., at 691–693 (opinion of
Garza, J.). We granted certiorari, 540 U. S. 1099 (2004), and
now reverse.
III
A
Section 113(f)(1) does not authorize Aviall’s suit. The first
sentence, the enabling clause that establishes the right

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166 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
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of contribution, provides: “Any person may seek contribu-
tion . . . during or following any civil action under section
9606 of this title or under section 9607(a) of this title,” 42
U. S. C. § 9613(f)(1) (emphasis added). The natural meaning
of this sentence is that contribution may only be sought sub-
ject to the specified conditions, namely, “during or following”
a specified civil action.
Aviall answers that “may” should be read permissively,
such that “during or following” a civil action is one, but not
the exclusive, instance in which a person may seek contribu-
tion. We disagree. First, as just noted, the natural mean-
ing of “may” in the context of the enabling clause is that it
authorizes certain contribution actions—ones that satisfy the
subsequent specified condition—and no others.
Second, and relatedly, if § 113(f)(1) were read to authorize
contribution actions at any time, regardless of the existence
of a § 106 or § 107(a) civil action, then Congress need not have
included the explicit “during or following” condition. In
other words, Aviall’s reading would render part of the stat-
ute entirely superfluous, something we are loath to do. See,
e. g., Hibbs v. Winn, 542 U. S. 88, 101 (2004). Likewise, if
§ 113(f )(1) authorizes contribution actions at any time,
§ 113(f)(3)(B), which permits contribution actions after set-
tlement, is equally superfluous. There is no reason why
Congress would bother to specify conditions under which a
person may bring a contribution claim, and at the same time
allow contribution actions absent those conditions.
The last sentence of § 113(f)(1), the saving clause, does not
change our conclusion. That sentence provides: “Nothing in
this subsection shall diminish the right of any person to
bring an action for contribution in the absence of a civil ac-
tion under section 9606 of this title or section 9607 of this
title.” 42 U. S. C. § 9613(f)(1). The sole function of the sen-
tence is to clarify that § 113(f)(1) does nothing to “diminish”
any cause(s) of action for contribution that may exist inde-
pendently of § 113(f)(1). In other words, the sentence re-

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buts any presumption that the express right of contribution
provided by the enabling clause is the exclusive cause of ac-
tion for contribution available to a PRP. The sentence, how-
ever, does not itself establish a cause of action; nor does
it expand § 113(f)(1) to authorize contribution actions not
brought “during or following” a § 106 or § 107(a) civil action;
nor does it specify what causes of action for contribution, if
any, exist outside § 113(f)(1). Reading the saving clause to
authorize § 113(f)(1) contribution actions not just “during or
following” a civil action, but also before such an action,
would again violate the settled rule that we must, if possible,
construe a statute to give every word some operative effect.
See United States v. Nordic Village, Inc., 503 U. S. 30,
35–36 (1992).
Our conclusion follows not simply from § 113(f)(1) itself,
but also from the whole of § 113. As noted above, § 113 pro-
vides two express avenues for contribution: § 113(f)(1) (“dur-
ing or following” specified civil actions) and § 113(f)(3)(B)
(after an administrative or judicially approved settlement
that resolves liability to the United States or a State). Sec-
tion 113(g)(3) then provides two corresponding 3-year limita-
tions periods for contribution actions, one beginning at the
date of judgment, § 113(g)(3)(A), and one beginning at the
date of settlement, § 113(g)(3)(B). Notably absent from
§ 113(g)(3) is any provision for starting the limitations period
if a judgment or settlement never occurs, as is the case with
a purely voluntary cleanup. The lack of such a provision
supports the conclusion that, to assert a contribution claim
under § 113(f), a party must satisfy the conditions of either
§ 113(f)(1) or § 113(f)(3)(B).
Each side insists that the purpose of CERCLA bolsters its
reading of § 113(f)(1). Given the clear meaning of the text,
there is no need to resolve this dispute or to consult the
purpose of CERCLA at all. As we have said: “[I]t is ulti-
mately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.” On-

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168 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
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cale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79
(1998). Section 113(f)(1), 100 Stat. 1647, authorizes contri-
bution claims only “during or following” a civil action under
§ 106 or § 107(a), and it is undisputed that Aviall has never
been subject to such an action.5 Aviall therefore has no
§ 113(f)(1) claim.
B
Aviall and amicus Lockheed Martin contend that, in the
alternative to an action for contribution under § 113(f)(1),
Aviall may recover costs under § 107(a)(4)(B) even though it
is a PRP. The dissent would have us so hold. We decline
to address the issue. Neither the District Court, nor the
Fifth Circuit panel, nor the Fifth Circuit sitting en banc con-
sidered Aviall’s § 107 claim. In fact, as noted above, Aviall
included separate § 107 and § 113 claims in its original com-
plaint, but then asserted a “combined” § 107/§ 113 claim in its
amended complaint. The District Court took this consoli-
dated claim to mean that Aviall was relying on § 107 “not
as an independent cause of action,” but only “to the extent
necessary to maintain a viable § 113(f)(1) contribution claim.”
Civ. Action No. 3:97–CV–1926–D (ND Tex., Jan. 13, 2000),
App. to Pet. for Cert. 94a, n. 2. Consequently the court saw
no need to address any freestanding § 107 claim. The Fifth
Circuit panel likewise concluded that Aviall no longer ad-
vanced a stand-alone § 107 claim. 263 F. 3d, at 137, n. 2.
The en banc court found it unnecessary to decide whether
Aviall had waived the § 107 claim, because it held that Aviall
could rely instead on § 113. 312 F. 3d, at 685, n. 15. Thus,
the court did not address the waiver issue, let alone the mer-
its of the § 107 claim.
“We ordinarily do not decide in the first instance issues
not decided below.” Adarand Constructors, Inc. v. Mineta,
5 Neither has Aviall been subject to an administrative order under § 106;
thus, we need not decide whether such an order would qualify as a “civil
action under section 9606 . . . or under section 9607(a)” of CERCLA. 42
U. S. C. § 9613(f)(1).

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169 Cite as: 543 U. S. 157 (2004)
Opinion of the Court
534 U. S. 103, 109 (2001) (per curiam) (internal quotation
marks omitted). Although we have deviated from this rule
in exceptional circumstances, United States v. Mendenhall,
446 U. S. 544, 551–552, n. 5 (1980), the circumstances here
cut against resolving the § 107 claim. Both the question
whether Aviall has waived this claim and the underlying
§ 107 question (if it is not waived) may depend in part on the
relationship between §§ 107 and 113. That relationship is a
significant issue in its own right. It is also well beyond the
scope of the briefing and, indeed, the question presented,
which asks simply whether a private party “may bring an
action seeking contribution pursuant to CERCLA Section
113(f)(1).” Pet. for Cert. i. The § 107 claim and the prelim-
inary waiver question merit full consideration by the courts
below.
Furthermore, the parties cite numerous decisions of the
Courts of Appeals as holding that a private party that is
itself a PRP may not pursue a § 107(a) action against other
PRPs for joint and several liability. See, e. g., Bedford Af-
filiates v. Sills, 156 F. 3d 416, 423–424 (CA2 1998); Centerior
Serv. Co. v. Acme Scrap Iron & Metal Corp., 153 F. 3d 344,
349–356 (CA6 1998); Pneumo Abex Corp. v. High Point, T. &
D. R. Co., 142 F. 3d 769, 776 (CA4 1998); Pinal Creek Group
v. Newmont Mining Corp., 118 F. 3d 1298, 1301–1306 (CA9
1997); New Castle County v. Halliburton NUS Corp., 111 F.
3d 1116, 1120–1124 (CA3 1997); Redwing Carriers, Inc. v.
Saraland Apartments, 94 F. 3d 1489, 1496, and n. 7 (CA11
1996); United States v. Colorado & E. R. Co., 50 F. 3d 1530,
1534–1536 (CA10 1995); Uni ted Technolog i es Corp. v.
Browning-Ferris Industries, 33 F. 3d 96, 98–103 (CA1 1994).
To hold here that Aviall may pursue a § 107 action, we would
have to consider whether these decisions are correct, an
issue that Aviall has flagged but not briefed. And we might
have to consider other issues, also not briefed, such as
whether Aviall, which seeks to recover the share of its
cleanup costs fairly chargeable to Cooper, may pursue a § 107

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170 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
Opinion of the Court
cost recovery action for some form of liability other than
joint and several. We think it more prudent to withhold
judgment on these matters.
In view of the importance of the § 107 issue and the ab-
sence of briefing and decisions by the courts below, we are
not prepared—as the dissent would have it—to resolve the
§ 107 question solely on the basis of dictum in Key Tronic.
We held there that certain attorney’s fees were not “ ‘neces-
sary costs of response’ ” within the meaning of § 107(a)(4)(B).
511 U. S., at 818–821. But we did not address the relevance,
if any, of Key Tronic’s status as a PRP or confront the rela-
tionship between §§ 107 and 113. In discussing § 107, we did
not even classify it precisely as a right of cost recovery or a
right of contribution, as the dissent’s descriptions of the deci-
sion reveal. Post, at 172 (opinion of Ginsburg, J.) (describ-
ing Key Tronic as recognizing a right to “ ‘seek recovery of
cleanup costs’ ” (quoting 511 U. S., at 818), but in the follow-
ing paragraph saying that Key Tronic identified a “right to
contribution”). “Questions which merely lurk in the record,
neither brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to
constitute precedents.” Webster v. Fall, 266 U. S. 507, 511
(1925). Aviall itself recognizes the need for fuller examina-
tion of the § 107 claim; it has simply requested that we re-
mand for consideration of that claim, not that we resolve the
claim in the first instance.
C
In addition to leaving open whether Aviall may seek cost
recovery under § 107, Part III–B, supra, we decline to decide
whether Aviall has an implied right to contribution under
§ 107. Portions of the Fifth Circuit’s opinion below might
be taken to endorse the latter cause of action, 312 F. 3d, at
687; others appear to reserve the question whether such a
cause of action exists, id., at 685, n. 15. To the extent that
Aviall chooses to frame its § 107 claim on remand as an im-

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171 Cite as: 543 U. S. 157 (2004)
Ginsburg, J., dissenting
plied right of contribution (as opposed to a right of cost re-
covery),6 we note that this Court has visited the subject of
implied rights of contribution before. See Texas Industries,
451 U. S., at 638–647; Northwest Airlines, 451 U. S., at 90–99.
We also note that, in enacting § 113(f)(1), Congress explicitly
recognized a particular set (claims “during or following” the
specified civil actions) of the contribution rights previously
implied by courts from provisions of CERCLA and the com-
mon law. Cf. Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U. S. 11, 19 (1979). Nonetheless, we need not and
do not decide today whether any judicially implied right of
contribution survived the passage of SARA.
* * *
We hold only that § 113(f)(1) does not support Aviall’s suit.
We therefore reverse the judgment of the Fifth Circuit and
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
Justice Ginsburg, with whom Justice Stevens joins,
dissenting.
Aviall Services, Inc., purchased from Cooper Industries,
Inc., property that was contaminated with hazardous sub-
stances. Shortly after the purchase, the Texas Natural Re-
source Conservation Commission notified Aviall that it would
institute enforcement action if Aviall failed to remediate the
property. Aviall promptly cleaned up the site and now
seeks reimbursement from Cooper. In my view, the Court
unnecessarily defers decision on Aviall’s entitlement to re-
cover cleanup costs from Cooper.
6 As noted above, we do not address whether a § 107 cost recovery action
by Aviall (if not waived) may seek some form of liability other than joint
and several.

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172 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
Ginsburg, J., dissenting
In Key Tronic Corp. v. United States, 511 U. S. 809, 818
(1994), all Members of this Court agreed that § 107 of the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), 42 U. S. C. § 9607, “un-
questionably provides a cause of action for [potentially re-
sponsible persons (PRPs)] to seek recovery of cleanup costs.”
The Court rested that determination squarely and solely on
§ 107(a)(4)(B), which allows any person who has incurred
costs for cleaning up a hazardous waste site to recover all or
a portion of those costs from any other person liable under
CERCLA.1
The Key Tronic Court divided, however, on the question
whether the right to contribution is implicit in § 107(a)’s text,
as the majority determined, or whether § 107(a) expressly
confers the right, as the dissenters urged. The majority
stated: Section 107 “implies—but does not expressly com-
mand—that [a PRP] may have a claim for contribution
against those treated as joint tortfeasors.” 511 U. S., at 818,
and n. 11 (emphasis added). The dissent maintained: “Sec-
tion 107(a)(4)(B) states, as clearly as can be, that ‘[c]overed
persons . . . shall be liable for . . . necessary costs of response
incurred by any other person.’ Surely to say that A shall
be liable to B is the express creation of a right of action.”
Id., at 822. But no Justice expressed the slightest doubt
that § 107 indeed did enable a PRP to sue other covered per-
sons for reimbursement, in whole or part, of cleanup costs
the PRP legitimately incurred.
1 Key Tronic, a PRP, asserted a cost-recovery claim under § 107(a) to
recoup approximately $1.2 million in costs that it allegedly incurred clean-
ing up its site “at its own initiative.” Key Tronic Corp. v. United States,
984 F. 2d 1025, 1026 (CA9 1993). Although Key Tronic settled a portion
of its liability with the Environmental Protection Agency (EPA), the claim
advanced in Key Tronic’s § 107(a) suit rested on remedial action taken
before the EPA’s involvement, remediation that did not figure in the settle-
ment. Id., at 1026–1027; Key Tronic Corp. v. United States, 511 U. S. 809,
811–812 (1994).

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173 Cite as: 543 U. S. 157 (2004)
Ginsburg, J., dissenting
In its original complaint, Aviall identified § 107 as the
federal-law basis for an independent cost-recovery claim
against Cooper, and § 113 as the basis for a contribution
claim. App. 8A, 16A–17A. In amended pleadings, Aviall
alleged both §§ 107 and 113 as the federal underpinning for
its contribution claim. Id., at 27A, 48A. Aviall’s use of
§§ 113 and 107 in tandem to assert a contribution claim con-
formed its pleading to then-governing Fifth Circuit prece-
dent, which held that a CERCLA contribution action arises
through the joint operation of §§ 107(a) and 113(f)(1). See
Geraghty & Miller, Inc. v. Conoco Inc., 234 F. 3d 917, 924
(2000) (“[W]hile section 113(f) is the vehicle for bringing a
contribution action, it does not create a new cause of action
or create any new liabilities. Rather, it is a mechanism for
apportioning costs that are recoverable under section 107.”
(footnote omitted)). A party obliged by circuit precedent to
plead in a certain way can hardly be deemed to have waived
a plea the party could have maintained had the law of the
circuit permitted him to do so. But cf. ante, at 168–169.
In the Fifth Circuit’s view, § 107 supplied the right of ac-
tion for Aviall’s claim, and § 113(f)(1) prescribed the proce-
dural framework. 312 F. 3d 677, 683, and n. 10 (2002) (en
banc) (stating that § 107 “impliedly authorizes a cause of ac-
tion for contribution” and § 113(f) “govern[s] and regulate[s]”
the action (citing Geraghty & Miller, 234 F. 3d, at 924; inter-
nal quotation marks omitted)); see § 113(f)(1) (calling for the
governance of “Federal law” and the application of “the Fed-
eral Rules of Civil Procedure,” and specifying that “[i]n re-
solving contribution claims, the court may allocate response
costs among liable parties using such equitable factors as the
court determines are appropriate”). Notably, Aviall ex-
pressly urged in the Court of Appeals that, were the court
to conclude that § 113(f)(1)’s “during or following” language
excluded application of that section to this case, Aviall’s suit
should be adjudicated independently under § 107(a). See
Response of Appellant Aviall Services, Inc., to the Amicus

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174 COOPER INDUSTRIES, INC. v. AVIALL SERVICES, INC.
Ginsburg, J., dissenting
Curiae Brief for United States in No. 00–10197 (CA5), p. 24
(“[P]arties who are excluded from seeking contribution
under section 113(f)(1) must therefore have available to them
the broader right of cost recovery [covering both full recov-
ery and contribution] under section 107(a).”); cf. Key Tronic,
511 U. S., at 816 (“[T]he statute now expressly authorizes a
cause of action for contribution in § 113 and impliedly author-
izes a similar and somewhat overlapping remedy in § 107.”).
I see no cause for protracting this litigation by requiring
the Fifth Circuit to revisit a determination it has essentially
made already: Federal courts, prior to the enactment of
§ 113(f)(1), had correctly held that PRPs could “recover
[under § 107] a proportionate share of their costs in actions
for contribution against other PRPs,” 312 F. 3d, at 687; 2
nothing in § 113 retracts that right, ibid. (noting that
§ 113(f)’s saving clause preserves all preexisting state and
federal rights of action for contribution, including the § 107
implied right this Court recognized in Key Tronic, 511 U. S.,
at 816). Accordingly, I would not defer a definitive ruling
by this Court on the question whether Aviall may pursue a
§ 107 claim for relief against Cooper.
2 The cases to which the Court refers, ante, at 171, Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U. S. 630 (1981), and Northwest Air-
lines, Inc. v. Transport Workers, 451 U. S. 77 (1981), do not address the
implication of a right of action for contribution under CERCLA. Texas
Industries concerned the Sherman and Clayton Acts, 451 U. S., at 639–646;
Northwest Airlines, the Equal Pay Act of 1963 and Title VII of the Civil
Rights Act of 1964, 451 U. S., at 90–99. A determination suitable in one
statutory context does not necessarily carry over to a different statutory
setting.