Monday’s Supreme Court’s decision in Burlington Northern v. United States will significantly affect the outcome of many pending and future Superfund disputes. The opinion’s two principal holdings narrow the scope and extent of many parties’ liability at Superfund sites and breathe new life into defenses that had long been given little credence by the United States EPA and the courts. First, in a major departure from prior lower court decisions, the Court held that a defendant must actually intend that waste be disposed of before it can be found liable as an arranger under § 107(a)(3) of CERCLA. Second, it expanded the circumstances under which a party could show that the harm attributable to it is divisible from other harms at a site and thereby avoid joint and several liability. In this part of the decision, the Court held that imposition of joint and several liability was inappropriate because the District Court had permissibly and reasonably apportioned liability of the landowner based on the percentage of the site that it owned and the time period during which operations that led to contamination occurred on that parcel. Prior lower court decisions imposed a much higher burden on a party attempting to show why it should not be jointly and severally liable, which in turn frequently made minor contributors to site conditions responsible for the entire cost of cleanup.

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