RECENT FEDERAL DECISIONS

July 2009

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U.S. Supreme Court Rejects Joint and Several Liability Where a Reasonable Basis for Apportionment Exists, and Limits Arranger Liability
Burlington Northern & Santa Fe Railway Co. et al. v. U.S., et al., ___U.S. ___

In an 8-1 decision, the U.S. Supreme Court addressed two issues under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA): (1) Shell’s “arranger” liability, and (2) whether liability of the two railroads who owned a portion of the property that was contaminated was properly limited to only nine percent of the total remediation costs. The Supreme Court overruled the lower courts on the issue of Shell’s “arranger” liability. Regarding liability, the Court applied the U.S. v. Chem-Dyne Corp. 572 F.Supp. 802 (S.D. Ohio 1983) precedent upholding apportionment when “there is a reasonable basis for determining the contribution of each cause to a single harm.” A sufficient basis for apportioning liability existed on the record based on the railroads’ length of ownership of the relevant parcel of land, the relationship between the railroads’ parcel as compared to the overall contaminated parcel, and the volume of relevant activities on the railroads’ land as compared to the volume on the rest of the parcel.