CERCLA Jerk

On Monday, the U.S. Supreme Court decided Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. ____ (2009) (pdf, 27 pages). At issue was the scope of liability for environmental cleanup costs under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). In brief and grossly oversimplified terms, CERCLA authorizes certain federal and state agencies to clean up contaminated lands and collect the costs of cleanup from certain types of entities Congress deemed responsible.

Among the parties that can be held liable for cleanup costs are those who “arrange[] for disposal . . . of hazardous substances” on the site. The Court ruled that “arranger liability” requires a finding that the defendant intended that at least some of the hazardous material at issue would be disposed of on the site in question; mere knowledge or foreseeability of disposal on the land is not enough.

CERCLA imposes a general rule of joint and several liability for cleanup costs. In other words, if more than one entity contributed to the problem, any one of those entities can be compelled to pay the full cost of cleanup. In effect, joint and several liability places the risk of insolvency of one co-defendant on the other co-defendants rather than the plaintiff. However, CERCLA provides that each defendant is liable for only a proportionate share of the cleanup costs (several-only liability) if “there is a reasonable basis for determining the contribution of each cause to a single harm.” The Supreme Court arguably lowered the bar for obtaining several-only liability by approving the trial court’s apportionment, which suffered from what appears to be a rather serious lack of evidentiary support.

A hoity toity law firm’s analysis of Burlington is available here. I’m not especially interested in these cases, but I blogged about this one because it’s morally repugnant to pass on an opportunity to use  the term “CERCLA jerk.”

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