FROM CHEM-DYNE TO BURLINGTON NORTHERN: APPORTIONING CLEANUP COSTS IN THE NEW ERA OF JOINT AND SEVERAL CERCLA LIABILITY

Michael K. Foy, Santa Clara University

Abstract

Though not explicitly endorsed in the statute’s text, courts have not hesitated to impose joint and several liability on defendants sued by the federal government under CERCLA, an environmental statute intended to enable cleanup of contaminated land and to impose liability on parties responsible for that contamination. However, because CERCLA cleanups cost many millions of dollars, CERCLA defendants vehemently contest joint and several liability by arguing the harm they caused is divisible from the broader contamination. Courts are ostensibly willing to accept these divisibility arguments whenever there is a “reasonable basis” for apportioning; yet in practice, nearly all courts render divisibility arguments untenable through their extreme reluctance to acknowledge this “reasonable basis” has been satisfied. In Burlington Northern, the U.S. Supreme Court confronted this high-stakes and controversial issue. The Burlington Northern opinion upheld a district court’s holding that a reasonable basis for divisibility existed, despite the fact that its apportionment was based on factors more simplistic and tenuous than circuit courts believed necessary. Though this decision is of obvious importance, courts and commentators attempting to interpret it have reached discordant conclusions. This article solves these interpretational difficulties by extrapolating from Justice Stevens’ cryptically-worded opinion to articulate the standard that governs post-Burlington Northern apportionment. It observes striking parallels between Burlington Northern and the Restatement (Second) of Torts § 433A - long recognized as the “starting point” for CERCLA apportionment analysis - and argues Burlington Northern implicitly held that the Restatement is the ending point as well.

Because the Restatement (Second) § 433A endorses apportionment based on imprecise calculations, questions linger regarding the appropriate procedure to account for these calculation errors. This article proposes those uncertainties be quantified through margins of error, with defendants’ liabilities set at that margin’s uppermost point. Through this approach, Burlington Northern tempers the harsh standard for apportionment previously imposed on CERCLA defendants. However, by quantifying calculation uncertainties through upwardly-adjusted margins of error this approach furthers CERCLA’s ultimate goal of compensating the government for its cleanup expenditures by preventing defendants from using this uncertainty to their advantage.