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Prof. Anderson's article cited in two cases before U.S. Supreme Court

January 14, 2009
A pair of cases, Shell Oil Co. v. United States (No. 07-1601) and Burlington Northern Ry. v. United States (No. 01-1607), going before the U.S. Supreme Court on Feb. 24, raises the issue of whether joint and several liability is appropriate under CERCLA (Superfund) even when there is sufficient evidence to apportion liability.

The petitioners' briefs cite and quote heavily from an article in the 1993 issue of the Virginia Environmental Law Journal called "The Hazardous Waste Land," written by Drake Law Professor Jerry Anderson. The article was one of the first comprehensive critiques of the CERCLA cleanup system.

Courts have routinely imposed joint liability, which means that a company that disposed of only a small amount of hazardous waste at a site could be liable for the entire costs of remediation.

The cases center on a site in Arvin, Calif., used by Brown and Bryant, an agricultural distribution company. Between 1960-88, the site was contaminated by leaks and rinsing of trucks used to transport agricultural chemicals, eventually affecting the ground water.

The two companies named -- Shell Oil and Burlington Northern Railroad -- share about 15 percent of fault for the tainted site, but are left holding the bag for a $40 million cleanup because the main offender, Brown and Bryant, is now defunct and thus unable to pay for any of the cleanup.

Anderson argues in the article that routinely imposing joint liability in Superfund cases is inconsistent with basic tort law principles and public policy, and perhaps even counterproductive to fast, efficient cleanups. A fairer alternative would be to renew the corporate tax that once funded the Superfund and use it to pay for the "orphan share" of liability left by defunct responsible parties.

This Shell case also presents the Supreme Court with another common aspect of unfairness in these cases: what it means to arrange for the disposal of hazardous substances. Shell had no involvement in the operation of B&B site; it merely delivered chemical products there that B&B had purchased. Tankers would arrive with pesticide and some would spill when it was being unloaded. Should Shell be responsible for this disposal of hazardous waste when they had no control over the operation?  In simpler terms, if someone buys a car battery and dumps the acid on the ground, is the seller liable?

The other company held liable, Burlington Northern Railroad, also had no involvement with respect to the actual chemicals; they just owned a small portion of the site used by B&B for its operation. Even though Burlington Northern was not involved with the activity causing the chemical spills, it stands to absorb $20 million in cleanup costs.

Neither company wants to pay the entire cleanup costs for a problem they have little responsibility for; on the other hand, the government refuses to release deep pocket sources of cash, especially as the Superfund is dwindling. Thus, both the companies and the U.S. have spent enormous amounts of time and resources on the issue before the Court.

While it may be hard to feel sympathetic for a behemoth like Shell Oil, any company, large or small, could be swept into a Superfund cleanup, and end up paying millions in cleanup costs despite minimal responsibility, due to the joint liability concept. Anderson compares the process to a lottery, a liability lottery, because it's largely a matter of chance who ends up holding the bag for these cleanups.