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Environmental Newsflash, Issue 21
May 6, 2009Supreme Court Upholds Availability of Joint and Several Liability as well as Divisibility of Damages Under CERCLA
In Burlington Northern & Santa Fe Railway v. United States, decided on May 4, 2009, the Supreme Court held that liability to the United States under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act is joint and several. In so holding, the Supreme Court cited a series of lower court opinions dating back to United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983). The Supreme Court further held that joint and several liability does not apply where two or more entities acting independently cause a harm for which there is a reasonable basis of division. In such a situation, each defendant is only subject to liability for the harm that it caused. The Supreme Court also considered the CERCLA liability of an entity that had arranged for the disposal of a hazardous substance. The Supreme Court held that an entity is only liable as arranger where it takes intentional steps to dispose of a hazardous substance. It is not enough for liability that an entity sell a product containing a hazardous substance with knowledge that some of the hazardous substance will be spilled or leaked after purchase.
In Burlington Northern & Santa Fe Railway v. United States, decided on May 4, 2009, the Supreme Court held that liability to the United States under Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act is joint and several. In so holding, the Supreme Court cited a series of lower court opinions dating back to United States v. Chem-Dyne Corp., 572 F. Supp. 802 (S.D. Ohio 1983). The Supreme Court further held that joint and several liability does not apply where two or more entities acting independently cause a harm for which there is a reasonable basis of division. In such a situation, each defendant is only subject to liability for the harm that it caused. The Supreme Court also considered the CERCLA liability of an entity that had arranged for the disposal of a hazardous substance. The Supreme Court held that an entity is only liable as arranger where it takes intentional steps to dispose of a hazardous substance. It is not enough for liability that an entity sell a product containing a hazardous substance with knowledge that some of the hazardous substance will be spilled or leaked after purchase.
Steptoe & Johnson LLP attorneys Bennett Evan Cooper and Douglas D. Janicik in Phoenix, Arizona and Charles G. Cole in Washington, D.C. represented Burlington Northern and Santa Fe Railway Company and Union Pacific Railroad Company in the appeal of this case.
For more information, please contact:
Fred Bellamy: 602.257.5204, fbellamy@steptoe.com
David Nelson: 602.257.5246, dnelson@steptoe.com
Mark Freeze: 602.257.5215, mfreeze@steptoe.com
Mindy Brinker: 602.257.5248, mbrinker@steptoe.com
