Reasonable Bases for Apportioning Harm under CERCLA

Guo, Robert M.
May 2010
Ecology Law Quarterly;2010, Vol. 37 Issue 2, p317
Academic Journal
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) imposes joint and several liability on parties responsible for a single and indivisible incident of hazardous substances contamination. Joint and several liability may be avoided, however, by proving that there is a reasonable basis for determining the contribution of each party to a single harm. While there is no consensus as to what constitutes "a reasonable basis," courts that have analyzed the "reasonable basis" question have rarely apportioned harm. However, in the Supreme Court's recent decision in Burlington Northern & Santa Fe Railway Co. v. United States, the Court appears to have made it easier to obtain apportionment, and to avoid joint and several liability. Making apportionment easier to justify, and thereby making recovery of cleanup costs harder to obtain, contravenes CERCLA's objective of placing the cost of cleanup on parties whose activities contributed to the contamination. Thus, Burlington Northern sets a bad precedent for future courts. In response, this Note proposes a four-part test as a normative alternative for determining whether a basis for apportionment is "reasonable." Based on this proposed test, this Note concludes that the basis for apportionment in Burlington Northern was unreasonable.


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