Restatement for Arranger Liability Under CERCLA: Implications of Burlington Northern for Superfund Jurisprudence

Abstract

This past May, the United States Supreme Court for the first time addressed two issues which Congress left open in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ('CERCLA'). These issues are (1) the scope of arranger or 'generator' liability under the language of CERCLA Section 107(a)(3) and (2) the circumstances under which a liable party under Section 107 may be held jointly and severally liable. Rejecting the position of the United States Government on both issues, the Court found that the Government had attempted to extend CERCLA generator liability 'beyond the limits of the statute itself' and that, despite the Government’s 'refusal to acknowledge the potential divisibility of the harm,' the District Court’s rough formula limiting the CERCLA liability of the Railroad defendants to 9% of the Government’s total response costs' 'was supported by the evidence and comports with the apportionment principles' to which members of Congress had made reference in 1980 - 'traditional and evolving principles of common law' set forth in the ALI’s Restatements. Because the Court first addressed these two issues more than twenty-eight years after CERCLA’s enactment and because of the fact that the Court rejected the Government’s litigation position which it had asserted regularly in the lower courts, Burlington Northern has implications for the precedential effect of hundreds of lower court opinions relating to arranger liability and to the application of joint and several liability. Below we survey decisions prior to Burlington Northern on the first of these issues, arranger liability, and assess their precedential effect in light of that decision. We adopt the artifice of a hypothetical 'Restatement' for this area of Superfund jurisprudence. Following the structure of a Restatement, there are three subdivisions: (1) the black-letter law, reflecting an assessment of the current applicable legal rules in summary form after Burlington Northern, (2) Comments and Illustrations reflecting an elaboration and application of these rules with reference to prior cases, and (3) Reporter’s Notes, reflecting commentary about these rules, applications and likely areas of ambiguity or dispute which courts may need to visit or revisit in light of Burlington Northern.