Rough Justice:U.S. Supreme Court Liberalizes Use of Apportionment Instead of Joint and Several Liability in Superfund Litigation and Clarifies Conditions for Imposing "Arranger" Liability under CERCLA


In a much anticipated ruling, a nearly unanimous U.S. Supreme Court has determined that the imposition of liability as an “arranger” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA,” commonly known as the “Superfund” statute) requires evidence of taking “intentional steps” to arrange for the disposal of hazardous substances – a company’s mere knowledge of continuing spills and leaks by the purchaser of its chemicals is insufficient to impose arranger liability. Burlington Northern & Santa Fe Railway Co., et al. v. United States, 556 U.S. ___ (2009).

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