Supreme Court Decision in Burlington Northern Case Highlights Burden of Proof in CERCLA Cases

Victor N. Baltera, Jeffrey M. Karp, Jerome C. Muys Jr.
Client Advisory, May 15, 2009

The decision of the United States Supreme Court on May 4, 2009, in Burlington Northern & Santa Fe Railway Co. et al. v. United States et al., a closely-watched case that pitted Potentially Responsible Parties (PRPs) under CERCLA against the Government on the questions of arranger liability and apportionment, highlights the burden of proof on PRPs with respect to both issues. The decision suggests that raw materials suppliers cannot not be held liable as "arrangers" under CERCLA unless it could be shown that they “planned for,” or intended, that a portion of the product they delivered to be spilled, leaked, or otherwise disposed at the site. The decision also makes clear that apportionment is proper when “there is a reasonable basis for determining the contribution of each cause to a single harm,” but that “CERCLA defendants bear the burden of proving that a reasonable basis for apportionment exists.

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