Asserting Divisibility in CERCLA Litigation in Federal Court: Practical Tips and Lessons Learned

Description

The U.S. Supreme Court's Burlington Northern & Santa Fe Railway Co. v. U.S. ruling on divisibility under CERCLA led to optimism on the use of this defense to joint & several liability. However, there is no bright-line test for determining divisibility, and several court decisions have shown that defining and distinguishing harm at a site may be difficult.

In court decisions involving the Fox River in Wisconsin, the Upper Columbia River in Washington state, and from Rhode Island and South Carolina, judges and parties wrestle with the threshold question for divisibility: is the harm "theoretically capable of apportionment"?

If the court's answer to this question is "yes," then the party seeking to limit its liability may succeed. If no, then the party may be jointly and severally liable and must bring contribution claims to shift responsibility to others under an equitable allocation approach. Court opinions addressing the divisibility/apportionment question continue to guide judges, litigants, and pre-litigation parties as they attempt to settle or otherwise resolve responsibility at contaminated sites.

Listen as our authoritative panel examines the statutory language and what the Burlington Northern & Santa Fe Railway Co. v. U.S. decision and its progeny mean for divisibility and apportionment. The panel will also review recent cases addressing this legal theory and offer practice pointers on which circumstances lend themselves to a divisibility defense, the main technical approaches available, and options on how to present this defense.