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.

6. My Own Argument: Burlington N. & S. F. R. Co. v. United States

Being that my profession is not one of a lawyer, providing a concise decision on this case is tough. Much of what I read made some sense to me, while other parts completely went over my head. The Supreme Court's final decision on this case was eight-to-one, and while I do agree with the ultimate decision of the case, I'm a bit surprised of its lopsidedness. My personal views of our environment is a green one, and I agree with many of the environmental acts and laws that are in place. A person only has to look at what China is doing to their land and water sources. With that being said, the final decision of this case makes sense to me because of the lack of clarity within the guidelines of CERCLA. CERCLA only focuses on the deliberate dumping of hazardous, and mentions nothing about the transfer of hazardous chemicals from one facility to another. Moreover, Shell Oil Corp. did everything in their power to prevent spills and leakage from occurring, including selling their product at a discounted rate to companies that proactively prevented chemical spills. This is the reason I agree with the eight justices on this case. The classic example we have used in class has been the "lets use the lawnmower as a hedge trimmer by lifting it up while its running." Dumb? Yes, but there was no clear warning on the lawnmower to warn its users. The only difference between the lawnmower example and this case, is that one person loses ten fingers, while thousands potentially could be harmed by the toxic chemicals that could be released into the environment. This is a prime case for The Supreme Court. Being a child of two railroaders, I have heard many stories of freight trains derailing and all of their contents being ejected onto the landscape. Many of the accidents have been with harmless cargo, however, there have been other accidents that have had much more dangerous cargo. Many times during the seventies and eighties, gigantic holes were dug up and all of the waste was simply bulldozed into the hole and covered up. So it is very important the government be very clear in its guideline expectations in regards to environmental protection so that companies clearly understand what is expected of them. My final thought is that the chemical/oil companies get together with the transportation companies and standardize the coupling systems and holding tank valves so that buckets aren't used to catch the overspill from the transfer process. It is hard to believe that, even in the sixties and seventies, chemical handling was preformed this way, but clearly it was.

5. Rule of Law: Burlington N. & S. F. R. Co. v. United States

Although there are quite of few cases that The Supreme Court used as precedent in the decision of Burlington N. & S. F. R. Co. v. United States. In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). More popularly referred to as Superfund, this law regulates the dumping of waste onto land. If business firms illegally dump waste material, they can be held responsible for three times the actual cost of the cleanup. (Liuzzo, Anthony. Essentials of Business Law. p.519). There was a defiant gray area when it came to the guidelines that companies must follow in regards to liability within the CERCLA(Superfund). The following guidelines were in place prior to The Supreme Court taking this case. CERCLA imposes strict liability for environmental contamination upon four broad classes of PRPs: "(1) the owner and operator of a vessel or a facility,
"(2) any person[5] who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
"(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
"(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance. . . ." 42 U. S. C. §9607(a). http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf. Because of the gaps within the guidelines of the CERCLA, it became clear that the justices needed to establish a new precedence in regards to this case.
Once an entity is identified as a PRP, it may be compelled to clean up a contaminated area or reimburse the Government for its past and future response costs. See Cooper
Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 161 (2004).6
In these cases, it is undisputed that the Railroads qualify as PRPs under both §§9607(a)(1) and 9607(a)(2) because they owned the land leased by B&B at the time of the contamination and continue to own it now. The more difficult question is whether Shell also qualifies as a PRP under §9607(a)(3) by virtue of the circumstances surrounding its sales to B&B. http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf.

Week 10: What Do I Think of The Supreme Court

Since our country's inception, there has always been an interest in the diffusion of power when it comes to our government. There is however, one part of the judicial branch that reigns supreme (pardon the pun) over all the others. As you have probably guessed, this would be The Supreme Court. Why, do you ask are they so powerful? Simply put, the buck stops there. In all other branches and levels of government, there is always what could be considered as a second chance, but no when it comes to a Supreme Court ruling. Any case that is seen by The Supreme Court sets up the ultimate precedent for any further issue or situation that may come in the future. This is a very powerful and important feature of our government. Without this level of consistency, our legal system would collapse from the bottom up ending with The Supreme Court. I myself have always questioned the depth and complexity of our government for as long as I can remember, but not when comes to The Supreme Court. In many ways our Supreme Court can be compared to as a firing squad, or a single king that sits atop his high thrown. Whatever the decision that comes down is final. In many ways this could be argued as being extremely barbaric in thought, even possibility insane. I would disagree with these thoughts. I love the idea of the Supreme Court’s simplicity, and although the decision process can be quite lengthy and confusing at times, usually the final decision is one that will always benefit the public at large. We also must not forget that some of our country’s most complex and controversial topics have been settled in this simplistic setting. Many of these cases go back to the very beginning of our countries birth.

4. Reasoning of the Court: Burlington N. & S. F. R. Co. v. United States

Although the court found the parties liable, it did not impose joint and several liability on Shell and the Railroads for the entire response cost incurred by the Governments. The court found that the site contamination created a single harm but concluded that the harm was divisible and therefore capable of apportionment. Based on three figures—the percentage of the total area of the facility that was owned by the Railroads, the duration of B&B’s business divided by the term of the Railroads’ lease, and the Court’s determination that only two of three polluting chemicals spilled on the leased parcel required remediation and that those two chemicals were responsible for roughly two-thirds of the overall site contamination requiring remediation—the court apportioned the Railroads’ liability as 9% of the Governments’ total response cost.4 http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf. At the District Federal Court level, Shell Oil Corp. was found to be responsable for all of the toxic chemiacls that were spilled at the site, however, The Court of Appeals saw that Shell could not be the sole bearer of responsability simply because they only sold B&B the chemicals. The Court of Appeals did place some of the responsability on Shell because after all, they were the company that made the chemicals in the first place.

3. Decision of the court: Burlington N. & S. F. R. Co. v. United States

On May 4, 2009, the United States Supreme Court issued its first "apportionment" opinion under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In reversing the Ninth Circuit, the Supreme Court, in an 8-to-1 decision, held in Burlington Northern & Santa Fe Railway Co. v. United States that a potentially responsible party will not be jointly and severally liable under CERCLA if there is a reasonable basis upon which a court can apportion its share of liability. http://www.buchananingersoll.com/media/pnc/1/media.2331.pdf. Four cases in total were used as previous precedent, as the final eight to one decision was finally reached.
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. §§9601–9675, in response to the serious environmental and health risks posed by industrial pollution. See United States v. Bestfoods, 524 U. S. 51, 55 (1998). The Act was designed to promote the "‘timely cleanup of hazardous waste sites’" and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Consolidated Edison Co. of N. Y. v. UGI Util., Inc., 423 F. 3d 90, 94 (CA2 2005); see also Meghrig v. KFC Western, Inc., 516 U. S. 479, 483 (1996); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F. 2d 1074, 1081 (CA1 1986). These cases raise the questions whether and to what extent a party associated with a contaminated site may be held responsible for the full costs of remediation. http://www.supremecourtus.gov/opinions/08pdf/07-1601.pdf. The Justices had come to the conclusion the the lower courts had incorrectly calculated the total area in which Shell Oil Corp. was responsible for clean-up, and readjusted the total liability owed by Shell.

2. Issue of the case: Burlington N. & S. F. R. Co. v. United States

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 94 Stat. 2767, as amended, 42 U. S. C. §§9601–9675, in response to the serious environmental and health risks posed by industrial pollution. See United States v. Bestfoods, 524 U. S. 51, 55 (1998) . The Act was designed to promote the “ ‘timely cleanup of hazardous waste sites’ ” and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination. Consolidated Edison Co. of N. Y. v. UGI Util., Inc., 423 F. 3d 90, 94 (CA2 2005); see also Meghrig v. KFC Western, Inc., 516 U. S. 479, 483 (1996) ; Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F. 2d 1074, 1081 (CA1 1986). These cases raise the questions whether and to what extent a party associated with a contaminated site may be held responsible for the full costs of remediation. http://www4.law.cornell.edu/supct/html/07-1601.ZO.html. The railroads companies, as well as Shell Oil Corp. have taken this case to court and are trying to prevent millions of dollars to be forced to be paid to the government. During its years of operation, B&B stored and distributed various hazardous chemicals on its property. Among these were the herbicide dinoseb, sold by Dow Chemicals, and the pesticides D–D and Nemagon, both sold by Shell. Dinoseb was stored in 55-gallon drums and 5-gallon containers on a concrete slab outside B&B’s warehouse. Nemagon was stored in 30-gallon drums and 5-gallon containers inside the warehouse. Originally, B&B purchased D–D in 55-gallon drums; beginning in the mid-1960’s, however, Shell began requiring its distributors to maintain bulk storage facilities for D–D. From that time onward, B&B purchased D–D in bulk.1 http://www4.law.cornell.edu/supct/html/07-1601.ZO.html. The EPA feels that even though Shell Oil Corp. had required B&B to purchase bulk holding containers to cut down on the amount of toxic chemicals that were accidentally, spills continued to happen throughout the years. Since B&B is now an insolvent company, the responsibility now falls squarely on the shoulders of Shell Oil Corp. who were the providers of the toxic chemicals.