The Practical Impacts of Burlington Northern


On May 4, 2009, the United States Supreme Court issued its opinion in two consolidated cases, Burlington Northern and Santa Fe Railway Co. v. United States (“BNSF”) (No. 07-1601) and Shell Oil Company v. United States, (“Shell”) (No. 07-1607), 129 S. Ct. 1870 (2009), on the related issues of joint and several liability and arranger liability under Section 107 of the Comprehensive Environmental Response Compensation and Liability Act, commonly referred to as CERCLA or Superfund. In the first case, based on the facts before it, the Court held that BNSF was severally liable for a portion of site cleanup costs rather than jointly and severally liable for all. How significant this opinion is for Superfund defendants has been a topic of discussion among members of the environmental bar. This paper explores this question further and suggests how the BNSF opinion folds into a hierarchical approach for defending Superfund cases.

Presented to the American Bar Association Section of Environment, Energy, and Resources as part of "Environmental Issues in Region 6: Recent Developments and Hot Topics" June 14-15, 2010.

To read the full paper or to view the presentation slides, click on the PDFs linked below.

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