Ninth Circuit Decides CERCLA Case Regarding Defenses to Joint and Several Liability


The Ninth Circuit Court of Appeals decided a case of first impression regarding the “divisibility” defense to joint

and several liability under the federal Superfund, or “CERCLA.” In Department of Toxic Substances Control v.

Burlington Northern & Santa Fe Railway Co., et al., Case No. 03-17125 (9th Cir. 2007) (“Burlington Northern”),

the Court examined the issue of how, in lieu of joint and several liability, the courts could apportion liability

amongst the PRPs when they have been sued in a cost recovery action (as opposed to a contribution action).

Such apportionment would avoid the transaction costs and potential unfairness encountered when PRPs are held liable for contamination they did not cause, and are forced to pursue contribution actions against other responsible parties.

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Published In: Civil Remedies Updates, Environmental Updates, Toxic Torts Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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