About the Course
Introduction
This CLE webinar will examine how courts and practitioners are addressing the shifting landscape of divisibility and apportionment versus equitable allocation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Despite early optimism in the wake of Burlington Northern & Santa Fe Railway Co. v. United States, defendants face challenges when deploying a divisibility defense, as growing case law confirms that equitable allocation remains the more common resolution.
Description
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 discusses key decisions after Burlington Northern, highlighting factors that favor either divisibility or equitable allocation, examines tactical considerations for counsel, and offers guidance on structuring legal defenses for CERCLA sites. The panel will also 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.
Presented By
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. His experience includes strategic and technical analysis and guidance regarding numerous complex groundwater, soil, sediment, soil vapor and air contaminated sites. Dr. Love has also provided expert technical guidance for state legislative actions and federal advisory panels on a range of traditional and non-traditional environmental hazards. His 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.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, January 20, 2026
- schedule
1:00 p.m. ET./10:00 a.m. PT
I. Introduction
II. Understanding the divisibility defense vs. equitable allocation
III. After Burlington Northern: lessons from Short Creek and other decisions
IV. When a divisibility argument is viable (and when it's not)
V. Equitable allocation: the "fallback" strategy (and often the only strategy)
VI. Technical and evidentiary approaches for each path
VII. Best practices
The panel will cover these and other important topics:
- Applying Burlington Northern’s divisibility framework in practice and why many defendants fail to meet its strict requirements
- When to pursue a divisibility/apportionment versus when to expect equitable allocation, and how to preserve the appropriate defense
- The evidentiary and technical hurdles for proving divisibility
- Best practices for building a defensible record
- Lessons learned from recent cases
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