Under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), whether a manufacturer is liable for spilling or leaking a hazardous substance while delivering that substance to a purchaser.
Under CERCLA, when may a court impose joint and several liability, and when may it, instead, reasonably apportion liability among responsible parties?
Throughout the 60's and 70's, a now-defunct company called Brown & Bryant stored agricultural chemical products manufactured by Shell Oil Company on parcels of land owned by Brown & Bryant, Burlington Northern & Santa Fe Railway Company, and Union Pacific Transportation Company. The storage and handling of these chemicals led to leaks, and eventually a cleanup effort headed by California's Department of Toxic Substances Control ("DTSC") and the Environmental Protection Agency ("EPA"). After Brown and & Bryant had ceased to exist, the EPA and DTSC sued the railways and Shell under The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") to recover the costs of the cleanup. The United States District Court for the Eastern District of California found the railways liable because they owned the land on which hazardous materials were stored and processed, and Shell liable for arranging the disposal of the materials. The District Court found the railways liable for 9% of the costs of cleanup and Shell liable for 6%. The EPA and the DTSC appealed, and the Ninth Circuit reversed the lower court's apportionment of liability, finding that liability should be joint and several. The Ninth Circuit also upheld Shell's liability as the "arranger" of the disposal hazardous substances. In reviewing this case, the Supreme Court will decide whether joint and several liability may be imposed upon several parties under CERCLA even where a district court finds an objectively reasonable basis for dividing the cost of cleanup. The Supreme Court will also decide what constitutes "arranger" liability under CERCLA.
Questions as Framed for the Court by the Parties
Burlington No. & Santa Fe R. Co. v. United States (07-1601)
The Comprehensive, Environmental, Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., allows the government to obtain reimbursement for the costs of remediating hazardous waste sites from the owners and operators of land on which a disposal of hazardous substances has occurred. Because even passive landowners may be subjected to CERCLA liability, Congress removed language from early CERCLA bills mandating joint and several liability for multiple defendants who own or operate a particular site. In the present case, the Ninth Circuit nevertheless imposed joint and several liability for the entire cost of a facility's remediation on two landlords, even though they owned only a portion of the overall site for a fraction of its period of operation, and the parcel they owned required no remediation.
The question presented is:
Whether the Ninth Circuit erred by reversing the district court's reasonable apportionment of responsibility under CERCLA, and by adopting a standard of review and proof requirements that depart from common law principles and conflict with decisions of other circuits.
Shell Oil Co. v. United States (07-1607)
1. Whether liability for "arranging" for disposal of hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a)(3), may be imposed upon a manufacturer who merely sells and ships, by common carrier, a commercially useful product, transferring ownership and control to a purchaser who then causes contamination involving that product.
2. Whether joint and several liability may be imposed upon several potentially responsible parties under CERCLA, 42 U.S.C. § 9607(a), even where a district court finds an objectively reasonable basis for divisibility that would suffice at common law.
In 1960, Brown & Bryant, Inc. ("B&B"), a now-defunct company, owned and operated an agricultural chemical storage and distribution facility located in Arvin, California on a 3.8-acre parcel of land. See United States v. Burlington North & Santa Fe Railway. Co., 502 F.3d 781, at 790 (9th Cir.