Arguing Apportionment Versus Allocation in CERCLA Litigation in Federal Court
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Environmental
- event Date
Thursday, September 7, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will discuss how recent court decisions have addressed the strategy of pursuing divisibility and apportionment versus an equitable allocation in CERCLA litigation. Experience demonstrates that both the courts and counsel continue to exhibit confusion regarding the application of apportionment versus allocation in environmental cases. The panel will guide environmental counsel on when and how the divisibility of harm defense is appropriate, tactics to overcome the challenges for proving divisibility, and when an equitable allocation is the most likely outcome.
Mr. Hatfield focuses his practice on environmental counseling in complex regulatory and litigation matters, strategic planning, permitting and compliance, defense of state and federal enforcement matters, environmental health and safety audits, and due diligence in acquisitions and divestitures. He represents clients in an array of environmental matters involving CERCLA, the RCRA, and the New Jersey Spill and Landfill Closure Acts. Mr. Hatfield works with environmental consultants and technical experts on the investigation and remediation of sediment sites and contaminated properties and has extensive experience helping clients navigate through complex disputes and transactions related to allocation of responsibility for cleanup and remedial activities.
Dr. Love leads the firm’s Litigation Practice Group and provides forensic litigation support and expert witness services to clients throughout the U.S. on both environmental litigation and environmental insurance coverage related matters. Dr. Love’s experience includes strategic and technical analysis and guidance regarding numerous complex groundwater, soil, sediment, soil vapor and air contaminated sites. He has also provided expert technical guidance for state legislative actions and federal advisory panels on a range of traditional and non-traditional environmental hazards. Dr. Love’s expertise has been developed through a unique variety of university, federal and post-academia work, including developing leading-edge methods for addressing forensic questions related to weapons of mass destruction for the federal government.
The U.S. Supreme Court's Burlington Northern & Santa Fe Railway Co. v. U.S. ruling on divisibility under CERCLA led to optimism on the use of this defense to joint and several liability. However, there is no bright-line test for determining divisibility, and several recent court decisions have shown that defining and distinguishing harm at a site may continue to be difficult.
In court decisions involving the Fox River in Wisconsin, the Upper Columbia River in Washington state, and from Rhode Island and South Carolina, judges and parties wrestle with the threshold question for divisibility: is the harm "theoretically capable of apportionment"?
Divisibility is a potential defense to joint and several liability under CERCLA that divides the harm caused by each party (apportionment), so if the court's answer to this question is "yes," then the party seeking to limit its liability may succeed. In contrast, equitable allocation is designed to assign relative responsibility among liable parties to arrive at a “fair share” – without strict divisibility of the harm among the parties. In a cost recovery suit, if the divisibility defense is not available, then a party may be found jointly and severally liable and must bring contribution claims to shift responsibility to others under an equitable allocation approach.
Listen as the panel examines the Burlington Northern decision and its progeny concerning divisibility and apportionment versus equitable allocation. The panel will also review recent cases addressing this legal theory and offer practice pointers on which circumstances lend themselves to a divisibility defense, the main technical approaches available, and options on how to present this defense.
- Understanding the divisibility defense versus equitable allocation under CERCLA
- Section 113 equitable contribution vs. apportionment as a defense to a Section 107 claim
- What the Burlington Northern decision means for divisibility and whether it has altered the landscape
- Technical approaches to divisibility and equitable allocation
- Overlap between the two
- Unique elements of each
- Lessons learned from recent decisions
- Best practices
- Evidentiary issues and practical pointers for establishing support of each approach
The panel will discuss these and other relevant issues:
- How are the federal courts applying the Burlington Northern decision in divisibility cases?
- When and which parties should consider divisibility as opposed to equitable allocation?
- What circumstances lend themselves to a divisibility defense versus an equitable allocation?
- What steps can counsel take to overcome the challenging issues involved in proving divisibility?
- Lessons learned from court decisions on divisibility and apportionment
