Legal Alert: United States Supreme Court Narrows Arranger Liability and Holds That Superfund Liability Is Not Joint and Several Where a Reasonable Basis for Apportionment Exists


On May 4, 2009, the United States Supreme Court issued an 8-1 opinion with broad implications for Superfund cleanups holding (1) that the Environmental Protection Agency ("EPA") cannot hold parties liable under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") as "arrangers" for disposal unless they "intended" their wastes to be disposed of, and (2) that defendants may avoid joint and several liability if a "reasonable basis" exists to apportion their liability. Burlington Northern & Santa Fe Railway Co. v. United States (No. 07-1601, May 4, 2009) (consolidated with Shell Oil Co. v. United States (No. 07-1607).

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