U.S. Supreme Court Expands the Ability to Avoid Joint & Several Liability and Narrows "Arranger" Liability Under CERCLA: Burlington Northern and Santa Fe Railway Co. Et Al. v. Unites States Et Al.

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On May 4, 2009, the U.S. Supreme Court (“Supreme Court”), in an 8-1 decision penned by Justice John Paul Stevens, ruled that liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) is not joint and several where a potentially responsible party (“PRP”) can show that there is reasonable basis for apportionment of a party's liability for its contribution to site contamination creating a single harm. The Supreme Court's decision erodes long-held presumptions of the scope of joint and several liability under CERCLA and may prove to be a significant arrow in the quiver of PRPs. In addition, the decision reins in a trend of CERCLA “arranger” liability for the sale of useful products by requiring proof that a PRP intended to dispose of a hazardous substance.

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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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