Dis-Jointed? Several Approaches to Divisibility After <em>Burlington Northern</em>

Abstract

In Burlington Northern and Santa Fe Railway Co. v. United States, the Supreme Court held that a very thin trial court record provided a reasonable basis for apportionment of defendants' CERCLA liability under the prevailing legal standard borrowed from Section 433A of the Second Restatement of Torts. Predictions of the decision's effect on the availability of joint and several liability under CERCLA vary, predictably, in accordance with the the litigation interest of the predictor. In this article I argue that that even after Burlington Northern, federal courts are bound to assess the scope of CERCLA liability not only by applying traditional common law standards but by doing so with reference to the structure and purposes of CERCLA's liability scheme. Therefore, Burlington Northern's divisibility holding should have little effect in many typical CERCLA fact patterns. Moreover, even if Burlington Northern is interpreted to relax the proof requirements for defendants seeking apportionment, joint and several liability should still be available in many CERCLA cases under several legal theories. This article describes those theories and analyzes their relative merits.