Periconi, LLC

December 2009 Archives

The Supreme Court Clarifies the Requirements for "Arranger" Liability and Allocation of Liability in CERCLA Cases - Part IV.

Following our posts on the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. United States, No. 07-1601, -U.S.- (U.S. May 4, 2009) ("BNSF"), this post will discuss implications of this decision on apportionment in Superfund cases as various commentators (including this one) see it.Our view is that the Court should have considered whether the trial court had the power to sua sponte apportion costs in the BNSF case. Only if the Court had answered "yes" to that question should it have addressed whether there was a rational basis for the apportionment found by the lower court. The burden of proof is on the party seeking apportionment. However, the Railroads never raised apportionment in this case, failing to acknowledge any liability for contamination on their parcel throughout the 13-year lease. The government plaintiffs also refused to acknowledge the potential divisibility of harm. Accordingly, neither plaintiffs nor defendants provided any information on the allocation issue, and the District Court was left to its own devices to determine proper apportionment. Indeed, it seems that the District Court bent over backwards to find a basis for apportionment.

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