Divisibility Under CERCLA
Although not expressly required under the statute, joint and several liability has usually been applied by courts when the government pursues cleanup against polluters under CERCLA. A party seeking to avoid joint and several liability has the burden of proving not only that divisibility of harm is possible amongst potentially responsible parties, but that a reasonable basis for such divisibility exists. Case law from federal district courts, circuit courts, and the U.S. Supreme Court makes it clear that satisfying this burden requires a very case-specific and fact intensive inquiry. Early planning and a focused strategy for how to frame the facts and theory of the case can make the difference in determining whether divisibility is both possible and reasonable.
In the article, “Never Say Never: The Search for Divisibility Under CERCLA,” published by the New Jersey Law Journal, Gibbons attorneys William S. Hatfield and Adam C. Arnold examine the way in which courts are approaching this analysis and offer strategies for addressing these issues.