Note: Superfund and Tort Common Law: Why Courts Should Adopt a Contemporary Analytical Framework for Divisibility of Harm

By Joshua M. Greenberg. Full text here.

Abstract: “This Note discusses the Supreme Court’s 2009 Burlington Northern decision and the impact that it had on divisibility defenses to cost recovery actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). It surveys the thirty-three post-Burlington Northern cases dealing with apportionment of harm and concludes that defendants have been largely unsuccessful in limiting their liability under CERCLA because of the judiciary’s reliance on the Restatement (Second) of Torts in analyzing whether harm is divisible and because of the complex nature of the hazardous contamination at most Superfund sites. In practice, this lack of success translates to defendants being held jointly and severally liable for the entire cost of cleanup at a given Superfund site. While it may be fair to hold a defendant liable for the cost of the entire cleanup when that party is responsible for a substantial portion of the contamination at issue, many less culpable defendants are often left paying more than their fair share of cleanup costs. This Note argues that because liability under CERCLA is meant to be governed under evolving principles of common law (as indicated by the legislative history), and because states have been moving away from joint and several liability in favor of comparative responsibility schemes since the mid-1980s (as reflected in the Restatement (Third) of Torts), courts should adopt the contemporary analytical framework outlined in the Restatement (Third) of Torts when analyzing apportionment of harm in CERCLA cost recovery actions.”