On November 4, the U.S. Supreme Court refused to hear an appeal of a fourth circuit case finding that joint and several liability is the appropriate standard under the Comprehensive Environmental Response, Compensation, and Liability Act. The Court did not reject the Divisibility of Harm Standard established in Burlington N. & Santa Fe R.R. Co. v. United States; rather, it clarified what factors must be present in order for the court to apply a Divisibility of Harm Standard in apportioning liability. The court held that in order for there to be a “reasonable basis” for apportionment, the parties must be able to demonstrate the amount of contamination each party contributed to the site, and (2) the amount of soil each liable party caused to become contaminated through secondary disposal at the site.
For more information, please contact Steve O’Day or Andy Thompson.