Furrer v. Brown

BENNETT, District Judge,

concurring.

Judicial fathoming of Congressional intent is often a treacherous voyage. That is not so here. I wholeheartedly agree with Judge Bowman’s well-reasoned and carefully crafted opinion holding that Congress did not intend to create in § 6972 an implied private right of action for the recovery of cleanup costs. I join this opinion unreservedly for I find Judge Bowman’s application of the factors identified in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and his divination of Congressional intent, to be unassailable.

The Ninth Circuit Court of Appeals in KFC Western, Inc. v. Meghrig, 49 F.3d 518, 523 (9th Cir.1995), and Judge Fagg, in dissent here, may well be right that it may be “unfair and poor public policy to interpret § 6972(a)(1)(B) as barring restitution actions.” However, I would add that under our tripartite system of government, it is for Congress, not the federal courts, to make such policy choices. See, e.g., Hudson Distribs., Inc. v. Eli Lilly & Co., 377 U.S. 386, 395, 84 S.Ct. 1273, 1279-80, 12 L.Ed.2d 394 (1964); Baltimore & Ohio Ry. Co. v. Jackson, 353 U.S. 325, 331, 77 S.Ct. 842, 846, 1 L.Ed.2d 862 (1957); Black Hills Institute Of Geological Research v. South Dakota School of Mines & Technology, 12 F.3d 737, 744 (8th Cir.1993). The role of the federal courts, “of course, is as interpreters of the words chosen by Congress, not as policymakers or enlargers of congressional intent.” United States v. Gibbens, 25 F.3d 28, 33 (1st Cir.1994).