I seem to be the ACOEL CERCLA blogger by default. The other environmental practitioners may affect to being far too cool for this practice area, but we all know they secretly read Superfund cases at night when they are alone. So, to provide a guilty pleasure to some and perhaps a useful thought to others, let’s consider a small part of the often-intractable problem posed by having to advocate a particular Superfund cost allocation. If you have heard this all before, I apologize.
As is familiar, a court considering a contribution case among responsible parties “may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9613(f)(2). That suggests that a court would use more than one “equitable factor,” and indeed courts seem reflexively to invoke the six “Gore factors.”
Multi-factor balancing tests crop up often in legal analysis, but they tend to inform binary choices (e.g., whether an action is constitutional) and they are amenable to analysis with equitable intuition. In contrast, sites with more than a few parties involve shares too fine to allow a court easily to use its “gut” when making allocation determinations. In a matter with 25 parties, the mean share is 4 percent, and with 100 parties, the mean share is 1 percent. No one has a gut calibrated in percents – halves, thirds, quarters, maybe tenths, but not percents or fractions of percents. One needs arithmetic – a spreadsheet, if you will – to calculate shares in those cases.
But what to do with a multi-factor allocation? How do you suggest to the court that it construct the spreadsheet? It must have to have a way equitably to weigh factors like “mass” and “toxicity” against one another to come up with a single allocation, that is, a list of shares that add up to 100%. As an advocate, how do you set up that spreadsheet so that you can successfully argue to a court that your preferred means of allocating is more “equitable” than other alternatives?
Private allocators, and even the government, often want to ignore “soft” factors like the fifth Gore factor: “the degree of care exercised . . . with respect to the hazardous waste concerned . . . .” Performance on that factor cannot be measured “objectively” like “volume” or “toxicity.” However, some courts have taken the opposite approach and treated conventional fault as not only an important allocation factor, but one that trumps all others. See, e.g., Environmental Transportation Systems, Inc. v. Ensco, Inc., 969 F.2d 503 (7th Cir. 1992); cf. TDY Holdings, LLC v. United States, 885 F.3d 1142 (9th Cir. 2018). Others see that approach as too extreme. See, e.g., NCR Corp. v. Geo. A. Whiting Paper Co., 768 F.3d 682 (7th Cir. 2014). But ignoring fault or care as an allocation factor is just as extreme a result as ignoring all factors other than fault.
One way to approach this problem is to encourage the court to consider separate, single-factor allocations, and then to take a weighted average of those separate allocations. If the shares in each single-factor allocation sum to 100% and the weights on each of those single-factor allocations also sum to 100%, then the weighted average will yield a multi-factor allocation where the shares sum to 100%. (That’s just math, not a deep insight.) Any multi-factor allocation can also be represented as a weighted average of single-factor allocations, although the weights may be complicated functions of the factors.
One advantage of this approach is that it can sometimes simplify the advocacy. It allows you to separate different parts of the equitable intuition, and then to consider how to weigh them against each other. For example, if you could prove that each of ten parties were equally responsible for costs of response, then if cost-causation were the only equitable factor the allocation would be 10% each. But if one of the ten parties had caused costs through a criminal act, and the rest were not even negligent, you might say that an allocation on the basis of fault or care would be 100% to one party and 0% to all the rest. So, two distinct pieces of advocacy lead to two distinct single-factor allocations. A third – and much more equitable – piece of advocacy assigns weights to the two single-factor allocations.
Separating the issues can simplify the advocacy. It also can allow the advocate explicitly to set up the question whether a specific equitable factor should bear any weight at all; for example, it makes obvious that ignoring faultiness or another “soft” factor is an extreme result, not a middle-of-the-range fair result.
