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.


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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