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

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, November 19, 2020

Recorded event now available

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Course Materials

This CLE course will discuss how recent court decisions have addressed divisibility and apportionment in CERCLA litigation. The panel will guide environmental counsel on when and how the divisibility of harm defense is appropriate and tactics to overcome the challenges for proving divisibility.


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.



  1. Divisibility defense under CERCLA
    1. Statutory language
    2. What the BNSF decision means for divisibility
  2. Section 113 equitable contribution vs. apportionment
  3. Technical approaches to divisibility
  4. Lessons learned from recent decisions
  5. Best practices
    1. Circumstances lending themselves to a divisibility defense
    2. Presenting a divisibility defense


The panel will review these and other priority issues:

  • How are the federal courts applying the Burlington Northern decision in divisibility cases?
  • What factual circumstances lend themselves to a divisibility defense?
  • What steps can counsel take to overcome the challenging issues involved in proving divisibility?
  • Lessons learned from court decisions on divisibility and apportionment.
  • When should parties consider divisibility as opposed to equitable allocation?


Hatfield, William
William S. Hatfield

Director, Environmental

Mr. Hatfield focuses his practice on environmental counseling in complex regulatory and litigation matters, strategic...  |  Read More

Love, Adam
Adam H. Love, Ph.D.

Vice President and Principal Scientist

Dr. Love leads the firm’s Litigation Practice Group and provides forensic litigation support and expert witness...  |  Read More

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