7. Dissent: Burlington N. & S. F. R. Co. v. United States

Justice Ginsburg, dissenting.
Although the question is close, I would uphold the determinations of the courts below that Shell qualifies as an arranger within the compass of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). See 42 U. S. C. §9607(a)(3). As the facts found by the District Court bear out, App. to Pet. for Cert. in No. 07–1601, pp. 113a–129a, 208a–213a, Shell “arranged for disposal … of hazardous substances” owned by Shell when the arrangements were made.[Footnote 1]
In the 1950’s and early 1960’s, Shell shipped most of its products to Brown and Bryant (B&B) in 55-gallon drums, thereby ensuring against spillage or leakage during delivery and transfer. Id., at 89a, 115a. Later, Shell found it economically advantageous, in lieu of shipping in drums, to require B&B to maintain bulk storage facilities for receipt of the chemicals B&B purchased from Shell. Id., at 115a. By the mid-1960’s, Shell was delivering its chemical to B&B in bulk tank truckloads. Id., at 89a, 115a. As the Court recognizes, “bulk storage of the chemical led to numerous tank failures and spills as the chemical rusted tanks and eroded valves.” Ante, at 2–3, n. 1.
Shell furthermore specified the equipment to be used in transferring the chemicals from the delivery truck to B&B’s storage tanks. App. to Pet. for Cert. in No. 07–1601, pp. 120a–122a, 124a.[Footnote 2] In the process, spills and leaks were inevitable, indeed spills occurred every time deliveries were made. 520 F. 3d 918, 950–951 (CA9 2008). See also App. to Pet. for Cert. in No. 07–1601, pp. 119a–122a (“It is undisputed that spills were inherent in the delivery process that Shell arranged … .”). http://supreme.justia.com/us/556/07-1601/dissent.html. Justice Ginsburg was the only judge to dissent on this case, and it was his belief that because Shell Oil Corp. was the party who arranged for the transportation of the chemicals, they are inherently liable under the guidelines of CERCLA. Justice Ginsberg also stated that Shell specifically requested that B&B use a specific type of equipment for the transportation and storage of the chemicals Shell was selling. This equipment was known to fail by Shell and was recognized by the district courts as well as the court of appeals.