CERCLA Apportionment Following <i>Burlington Northern</i>: How Joint and Several Liability Still Thrives—to the Surprise of Many

Courts have generally held parties who are responsible for hazardous waste jointly and severally liable for that harm under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). On rare occasions, parties have shown a reasonable basis for apportionment of the harm and avoided joint and several liability. However, in 2009, the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. United States upheld an apportionment of harm based on a seemingly lower standard of evidence than courts have required in the past, potentially lowering the burden on parties to obtain apportionment. This article briefly summarizes Burlington Northern, as well as predictions from commentators on what standard of evidence will be sufficient for apportionment going forward.

It then analyzes subsequent cases to show that courts have not lowered the standard of evidence required for a reasonable basis for apportionment under CERCLA. In fact, a few courts have held potentially responsible parties to an even higher standard than prior to Burlington Northern.