A sharp conflict among the judicial circuits has emerged concerning whether private parties may recover attorneys fees in cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).¹ The issue centers on the meaning of CERCLA § 107(a)(4)(B), which permits private parties to recover "necessary costs of response … consistent with the national contingency plan."² Specifically, the question is, does the phrase "necessary costs of response" include attorneys fees?

The meaning given § 107(a)(4)(B) and the answer to this question depend, in turn, on the construction of CERCLA's definition of "response." CERCLA § 101(25) defines "response" as "remove, removal, remedy and remedial action; all such terms (including the terms 'removal' and 'remedial action') include enforcement activities related thereto."³ The appropriate construction of § 101(25) hinges on a question more simply stated than answered: Is the phrase "enforcement activities," in § 101(25), sufficiently explicit to authorize the award of attorneys fees to a private party that succeeds in obtaining § 107(a)(4)(B) "response" costs?