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Coming Full CERCLA: Why Burlington Northern is Not the Sword of Damocles for Joint and Several Liability

44 Pages Posted: 16 Jun 2010 Last revised: 17 Jun 2010

Martha L. Judy

Vermont Law School


The Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. United States is a case study of the intersection of common law concepts of divisibility of harm with Superfund statutory pronouncements designed to charge the cost of cleanup to the parties associated with contamination or to those who benefit from the property’s cleanup. It is also a study in the deference owed to reasonable, factually supported district court decisions concerning questions of fact. Burlington Northern is not a sea change in the law of apportionment of harm among otherwise jointly and severally liable parties under CERCLA.

The Court made clear that apportionment of harm to void joint and several liability is not the same as the analysis required for the more equitably oriented CERCLA contribution claim. Similarly, understood in the context of the unique facts presented by the Burlington Northern contamination, the Court acknowledged district court authority to reasonably apportion harm when the facts support such an analysis, as in Burlington Northern’s reasonably simple division between two owners of separate properties, where there were no other liable parties and contribution would not balance the equities because of the insolvency of the most culpable party. The Supreme Court emphasized that the burden of proving divisibility is upon the parties seeking it while overlooking this problem in Burlington Northern in order to rein in an overly restrictive appellate review of the district court’s divisibility analysis and consequential apportionment.

The Article is divided into three parts. Part I provides an overview of CERCLA and its application to the contamination at the Railroads’ and B&B’s properties. Part II examines the first and second installments of the Supreme Court’s “CERCLA trilogy”: Cooper Industries v. Aviall Services, Inc. and United States v. Atlantic Research Corp. and why those decisions frame the conclusions to be drawn about the Burlington Northern ruling. Part III reflects on the common law and how the facts unique to Burlington Northern and the nature of the Supreme Court’s evidentiary review of the district court’s decision combine to confirm that Burlington Northern only brings us “full CERCLA.” The decision reaffirms twenty-seven-year-old CERCLA common law on the divisibility of harm. The ruling follows in the wake of other CERCLA decisions that were once haled as the end of joint and several liability in CERCLA.

Keywords: Superfund, CERCLA, Liability, Supreme Court, Joint and Several, pollution, cost recovery, contribution, common law, statutory analysis, cleanup, remediation, voluntary, brownfields, standard of review, plain meaning, law and economics, strict liability, statutory interpretation, railroads

Suggested Citation

Judy, Martha L., Coming Full CERCLA: Why Burlington Northern is Not the Sword of Damocles for Joint and Several Liability. New England Law Review, Vol. 44, p. 249, 2010; Vermont Law School Research Paper No. 10-40. Available at SSRN:

Martha Judy (Contact Author)

Vermont Law School ( email )

164 Chelsea Street
P.O. Box 96
South Royalton, VT 05068
United States
802-831-1345 (Phone)


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