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Dis-Jointed? Several Approaches to Divisibility after Burlington Northern

Vermont Journal of Environmental Law, Vol. 11, p. 307, 2009

Rutgers School of Law-Newark Research Papers No. 062

64 Pages Posted: 8 Dec 2009 Last revised: 30 Mar 2011

Steve C. Gold

Rutgers School of Law-Newark

Date Written: December 4, 2009

Abstract

In Burlington Northern and Santa Fe Railway Co. v. United States, the Supreme Court held that a very thin trial court record provided a reasonable basis for apportionment of defendants' CERCLA liability under the prevailing legal standard borrowed from Section 433A of the Second Restatement of Torts. Predictions of the decision's effect on the availability of joint and several liability under CERCLA vary, predictably, in accordance with the the litigation interest of the predictor. In this article I argue that that even after Burlington Northern, federal courts are bound to assess the scope of CERCLA liability not only by applying traditional common law standards but by doing so with reference to the structure and purposes of CERCLA's liability scheme. Therefore, Burlington Northern's divisibility holding should have little effect in many typical CERCLA fact patterns. Moreover, even if Burlington Northern is interpreted to relax the proof requirements for defendants seeking apportionment, joint and several liability should still be available in many CERCLA cases under several legal theories. This article describes those theories and analyzes their relative merits.

Keywords: CERCLA, divisibility, joint and several liability, apportionment, hazardous substances, cost recovery, Burlington Northern

Suggested Citation

Gold, Steve C., Dis-Jointed? Several Approaches to Divisibility after Burlington Northern (December 4, 2009). Vermont Journal of Environmental Law, Vol. 11, p. 307, 2009; Rutgers School of Law-Newark Research Papers No. 062. Available at SSRN: https://ssrn.com/abstract=1518641

Steve Gold (Contact Author)

Rutgers School of Law-Newark ( email )

NJ
United States

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