Five Years Later: Burlington Northern and Apportionment

It has been five years since the United States Supreme Court reversed the Ninth Circuit Court of Appeals in Burlington Northern & Santa Fe Railroad v. United States, 556 U.S. 599 (2009). At the time, many thought the decision instructed trial courts to apportion Superfund liability more liberally. Five years later, it seems likely that this reading of the case was wrong. Trial court judges, at least, have not found Burlington Northern to significantly alter CERCLA apportionment jurisprudence. A recent review of the case law concluded that between 2009 and 2014, "[o]nly two out of more than twenty cases citing to the apportionment holding in Burlington Northern divided harm pursuant to § 107. [ … T]he two courts that have apportioned harm have done so without acknowledging a change in law." Wetmore, Joint and Several Liability after Burlington Northern: Alive and Well, 32 Va Envtl. L. J. 27, 41-42 (2014). While many in 2009 saw the Ninth Circuit's decision Burlington Northern as a swan song for CERCLA's joint and several liability, the effects of the Supreme Court's reversal have in hindsight appeared much more muted.

Why were so many commentators mistaken about Burlington Northern? It is true that the Supreme Court accepted the trial court's rough apportionment, complete with its fifty percent "uncertainty factor." At the same time, though, the Court was careful to signal its approval of the "seminal opinion of the subject of apportionment in CERCLA actions," United States v. Chem-Dyne Corp., 572 F. Supp. 802 (1983), and Chem-Dyne's reliance on the Restatement (Second) of Torts (Burlington Northern, supra 613), not the "more apportionment-friendly" Restatement (Third) of Torts. Wetmore, supra 39. It is also worth noting that no part of Burlington Northern was an explicit change in CERCLA apportionment jurisprudence or a rejection of prior case law. The Supreme Court did reverse the Ninth Circuit, but it did so simply by applying well-established precedent.

Commentators also failed to note the significance of the procedural posture of the case. Burlington Northern did not involve any dispute about the principles that govern apportionment. Burlington Northern, supra 615. The Supreme Court was simply tasked with determining whether the record supported the judgment below: "The question [before the court] is whether the record provided a reasonable basis for the District Court's [apportionment]." Ibid. Here, deference was owed to the district court, particularly given the factual complexity of the litigation. Judy, Coming Full CERCLA, 44 New Eng. L. R. 249, 290 (2010).

Finally, the Ninth Circuit's analysis notwithstanding, the Burlington Northern Superfund site was much less complex than it could have been. It was small, contaminants were segregated and traceable to individual actors, and the potentially responsible parties' activities were for the most part relegated to several discrete leaseholds on the property. Wetmore, supra 45; Burlington Northern, supra 617.

For better or worse, Burlington Northern is probably not the landmark apportionment decision some made it out to be. So, for many joint tortfeasors, the practical effects of Burlington Northern are likely to be limited, and joint and several liability remains the norm. To potentially liable parties, this will obviously be disappointing, but in many situations a § 113 counterclaim remains an adequate alternative to apportionment, since § 113 permits the court to allocate costs among liable parties using equitable factors. Wetmore, supra 50; 42 U.S.C. § 9613(f)(1). In fact, § 113 equitable allocation occurs in most § 107 cases brought by private parties. Ibid. So a sound litigation strategy rarely focuses on apportionment alone. (This "'scorched earth,' all-or-nothing approach to liability" was rebuked by the Burlington Northern trial court. Burlington Northern, supra 615.) Instead, the target of a § 107 suit should also consider whether the situation warrants a § 113 counterclaim or crossclaim.