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

Conducted on Tuesday, February 2, 2010
Recorded event now available

This CLE webinar 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, Partner
Arnold & Porter, Washington, D.C.

He specializes in environmental litigation and counseling. He represents corporations in matters involving contaminated properties, including toxic tort lawsuits and natural resource damages claims. His counseling practice focuses on environmental issues in large corporate transactions, brownfields redevelopment and environmental management systems.

Steven L. Leifer, Partner
Baker Botts, Washington, D.C.

He handles a broad array of environmentally-related litigation, including Superfund cost recovery, toxic tort and products liability litigation, insurance recovery actions, civil and criminal governmental enforcement proceedings and environmental bankruptcy claims. He litigates CERCLA claims against the government and private parties.


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Environmental Law Advisory Board

John J. Allen


Allen Matkins

Albert M. Cohen


Loeb & Loeb

Aaron Courtney

Of Counsel

Stoel Rives

Andrew N. Davis


Shipman & Goodwin

David R. Gillay


Barnes & Thornburg

Paul E. Gutermann


Akin Gump Strauss Hauer & Feld

Brian D. Israel


Arnold & Porter

Thomas J. P. McHenry


Gibson Dunn & Crutcher

Reed D. Rubinstein


Dinsmore & Shohl

James B. Slaughter


Beveridge & Diamond

Jeffrey A. Smith


Crowell & Moring

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche


Wrenn Bender

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