Leveraging Latest CERCLA Decisions and Navigating New Complexities

Key Lessons on Parent Liability for Subsidiary Conduct, Arranger Liability, Divisibility, Statute of Limitations Triggers, and Settlement Terms

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


Conducted on Tuesday, April 11, 2017
Recorded event now available


This CLE webinar will discuss the latest key federal court CERCLA decisions, provide insights into lessons from the decisions for environmental counsel and their clients going forward, and offer best practices for handling CERCLA issues.

Description

Counsel must be up-to-date and understand the significant developments over the past year from key federal court rulings. For example, new federal courts of appeal and state court precedents support piercing the corporate veil for parent liability for CERCLA cleanup costs arising from subsidiary conduct. This runs counter to the standard in some circuits to consider a parent company legally separate from its subsidiary and not liable for the subsidiary’s actions.

Recent rulings also conclude that federal district courts have an independent obligation to scrutinize CERCLA settlement terms, rather than giving full deference to the parties. Under this standard, courts must independently scrutinize the terms of a consent decree by comparing “the proportion of total projected costs to be paid by the [settling parties] with the proportion of liability attributable to them.”

In another development, there is a circuit split over whether a non-CERCLA consent decree triggers the three-year CERCLA statute of limitations. The Second and Third Circuits disagree over whether only a CERCLA consent decree triggers the limitations period or if it comes into play via a settlement that does not explicitly discuss CERCLA liability.

In addition, seven years after the landmark Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. United States, 556 U.S. 599 (2009), federal courts of appeal and district courts continue to clarify the circumstances in which a person is liable as an “arranger” under CERCLA for arranging for the disposal of hazardous substances.

Finally, federal courts of appeal and district courts continue to flesh out and explain the divisibility defense to joint and several liability under CERCLA, which allows cleanup costs to be apportioned where a single harm originating from different sources is theoretically capable of being divided and there is reasonable basis for apportionment.

Listen as our panel of environmental attorneys provides an analysis of the latest and most important federal court CERCLA decisions in 2016. The panel will provide insight into what those decisions mean going forward and offer best practices for handling CERCLA issues.

Outline

  1. District court CERCLA decisions
  2. Federal appellate court CERCLA decisions
  3. What the decisions mean for future cases
  4. Best practices in light of recent CERCLA decisions

Benefits

The panel will review these and other key issues:

  • Under what circumstances do companies need to proactively address potential parent liability for CERCLA cleanup costs caused by a subsidiary?
  • What triggers an obligation on the part of a federal district court to delve into the terms of a CERCLA settlement agreement?
  • Under what circumstances is a person liable as an “arranger” under CERCLA?
  • Does any kind of consent decree related to a CERCLA case start the three-year statute of limitations?
  • What evidence is necessary to establish the divisibility of harm and avoid joint and several liability under CERCLA?

Faculty

Jane E. Fedder, Shareholder, Vice Chair, Environmental Practice
Polsinelli, St. Louis

Ms. Fedder serves as the Vice-Chair of the firm’s Environmental Practice Group. She concentrates her nationwide practice in two areas: environmental litigation and insurance recovery litigation. Ms. Fedder has extensive experience representing clients in complex environmental litigation, administrative proceedings, ADR and mediations involving the gamut of substances and activities regulated by international, national, state and local environmental authorities

Leah J. Knowlton, Partner
Taylor English Duma, Atlanta

Ms. Knowlton has more than 25 years of experience counseling clients on environmental regulatory matters and representing them in criminal and civil litigation involving chemical contamination and other environmental violations. Ms. Knowlton regularly develops and implements environmental compliance management systems and advises clients on chemical safety and security matters. She has extensive experience assessing environmental risk and negotiating contracts and remediation plans in corporate and real estate transactions. 

Belynda S. Reck, Partner
Reed Smith, Los Angeles

Ms. Reck’s practice focuses on environmental, product liability and complex business matters. She has successfully represented both large international companies and small businesses in cases involving toxic tort, global warming, CERCLA, RCRA, and a variety of other statutes and common law. She has trial experience in both state and federal court and also has extensive experience resolving matters in both arbitration and mediation. In her practice, she has litigated environmental matters arising from a variety of facilities and operations.


Recordings

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Environmental Law Advisory Board

John J. Allen

Partner

Allen Matkins

Albert M. Cohen

Partner

Loeb & Loeb

Aaron Courtney

Partner

Stoel Rives

Andrew N. Davis

Partner

Shipman & Goodwin

David R. Gillay

Partner

Barnes & Thornburg

Brian D. Israel

Partner

Arnold & Porter Kaye Scholer

Thomas J. P. McHenry

Partner

Gibson Dunn & Crutcher

James B. Slaughter

Principal

Beveridge & Diamond

Jeffrey A. Smith

Senior Counsel

Sidley Austin

E. Gail Suchman

Special Counsel

Stroock & Stroock & Lavan

Gregory D. Trimarche

Senior Counsel

Ring Bender

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