Restatement for Joint and Several Liability Under CERCLA After Burlington Northern

• Date: 01 November 2009

39 ELR 11058 ENVIRONMENTAL LAW REPORTER 11-2009

Restatement for Joint and

Several Liability Under CERCLA

After Burlington Northern

by Alfred R. Light

Alfred R. Light is Professor of Law at St. omas University School of Law, Miami Gardens, Florida.

This past May, the U.S. Supreme Court for the rst

time addressed two issues that the U.S. Congress left

open in the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA).1 ese

issues are: (1) the scope of “generator” or “arranger” liabil-

ity under the language of CERCLA §107(a)(3)2; and (2) the

circumstances under which a liable party under §1073 may

be held jointly and severally liable. Rejecting the position of

the U.S. government on both issues, the Court found that

the government had attempted to extend CERCLA gen-

erator liability “beyond the limits of the statute itself ” and

that, despite the government’s “refusal to ack nowledge t he

potential divisibility of the harm,” the district court’s rough

formula limiting the CERCLA liability of the railroad defen-

dants to 9% of the government’s total response costs “was

supported by the evidence and comports with the apportion-

ment principles” to which members of Congress had made

reference in 1980—“traditional and evolving principles

of common law” set forth in t he American L aw Institute’s

(ALI’s) Restatements.4

Because the Cour t rst addressed these two issues more

than 28 years after CERCLA’s enactment and because of

the fact that the Court rejected the government’s litigation

position, which it had asserted regula rly in the lower courts,

          5

has implications for t he precedential eect of hundreds of

lower court opinions. is is especially so with respect to the

second issue: the application of joint and several liability.6

Below, we adopt the artice of a hypothetical Restatement

for this area of Superfund jurisprudence. Following the

structu re of a R estatement, there are three subdivi sions:

1. Pub. L. No. 96-510, 94 Stat. 2767 (codied as amended at 42 U.S.C. §§9601-

9675, ELR S. CERCLA §§101-405).

2. 42 U.S.C. §9607(a)(3) (2007).

3. 42 U.S.C. §9607.

4. Burlington N. & Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1879,

1881, 1883, 39 ELR 20098 (2009).

5. 129 S. Ct. at 1870.

6. Arranger liability is the subject of another article, Alfred R. Light, A Restate-

        Burlington

Northern for Superfund Jurisprudence, 11 V. J. E. L. (forthcoming 2009).

(1) the blac k-letter law, reecting an assessment of the cur-

rent applicable legal ru les in summary form af ter Burling-

ton Northern; (2) Comments and Illustrations, reecting a n

elaboration and application of these rules with reference to

prior cases; and (3) Reporter’s Notes, reecting commentary

about these rules, applications, and likely areas of a mbiguity

or dispute that courts may need to visit or revisit.

I. Restatement of the Law: Apportionment

of CERCLA Liability

When two or more persons acting independently cause

a release, or a threatened release causing the incurrence of

response costs, and there is a reasonable basis for determining

the contribution of a person’s cause to t he release or threat-

ened release, that person is subject to liability only for the

portion of the total damages that he has himself caused.

(1) e liable person seeking to avoid entire liability ordi-

narily bears the burden of proof (with a rela xed burden

of production) that a reasonable basis for apportionment

exists to limit t he extent of his liability. Where dema nded

by the circumstances, a court may independently perform

an apportionment analysis and l imit liabilit y even if not

advanced by such person.

(2) Where the court does not nd a reasonable basis of

apportionment, the damage s are indivisible and are to be

allocated using such equitable fa ctors as the court deter-

mines are appropriate.

II. Comments and Illustrations

A. Scope

is Restatement addresses the standard for imposing or

avoiding joint and several liability a mong parties potentially

liable under CERCLA, identied in §107(a)(1)-(4).7 Because

7. 42 U.S.C. §9607(a)(1)-(4).

Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.