CERCLA Liability After Burlington Northern and Santa Fe Railway Co. v. U.S.

Reducing Cleanup Liability and Recovering Remediation Costs

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

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Conducted on Tuesday, February 2, 2010

Recorded event now available

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Course Materials

This CLE course will analyze and discuss the impact of the U.S. Supreme Court's decision in Burlington Northern and Santa Fe Railway Co. v. U.S. addressing Superfund apportionment and arranger liability issues.


The U.S. Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. U.S. significantly changed the landscape for liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

The limits to the pool of potentially responsible parties (PRPs) that were imposed by the Court’s ruling make it more difficult to recover any orphan share a PRP pays up front. As a result, it may be a disincentive to settle liability issues early.

The Court held Superfund liability is not joint and several where there is a reasonable basis for apportionment. The lowering of the bar for avoiding joint and several liability gives arrangers and landowners a strong argument to minimize liability in negotiations and litigation with the government.

Listen as our authoritative panel of environmental law attorneys reviews the Supreme Court’s ruling, examines how courts are applying the decision, the implications for CERCLA liability, and offers best practices for reducing liability and recovering remediation costs.



  1. Brief overview of Burlington Northern and Santa Fe Railway Co. v. U.S.
    1. Supreme Court’s decision
    2. Court treatment
  2. Arranger liability
    1. Impact of the decision
    2. Limitations
    3. How are courts applying BNSF?
  3. Cost recovery
    1. Joint and several liability
    2. Government cost recover actions
    3. Unilateral 106 orders
    4. Increased litigation
    5. Coverage for orphan shares
    6. Impact on landowner liability
  4. Best practices for reducing cleanup liability and recovering remediation costs
    1. Minimizing CERCLA liability
    2. Recovering remediation costs from other PRPs


The panel will review these and other key questions:

  • How have courts applied the Burlington Northern decision?
  • What is the impact of narrowed arranger liability for landowners?
  • What are the key steps for recovering remediation costs from other PRPs?


Brian D. Israel
Brian D. Israel

Arnold & Porter

He specializes in environmental litigation and counseling. He represents corporations in matters involving contaminated...  |  Read More

Steven L. Leifer
Steven L. Leifer

Baker Botts

He handles a broad array of environmentally-related litigation, including Superfund cost recovery, toxic tort and...  |  Read More

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