Four Years Later: How Has BNSF Changed CERCLA Practice?

Liability under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, otherwise known as the Superfund statute) is strict, and in most cases joint and several.  The total cost for Superfund clean ups can range into the hundreds of millions and even billions of dollars.  Four years ago, the United States Supreme Court handed down a decision which many expected would revolutionize CERCLA practice by making it easier for defendants to escape CERCLA liability, or at least to avoid joint and several liability.  For the most part, those expectations have not been met.  Both defendants and their insurers are wondering why.

In a new white paper, our team traces the development of CERCLA case law over the past four years, and offers some suggestions for defendants seeking to attain the elusive benefits seemingly promised by the BNSF decision.  A copy of the paper is available here.