Constitutional Law

Toxic Dumping: Who Foots the Bill?

Again at the center of developing environmental law, the Supreme Court entertained oral argument yesterday in a case that may set the boundaries of liability for toxic dumping. The issue in Burlington Northern v. United States is whether the companies having relatively attenuated relationships to toxic dumping should be held jointly and severally liable for the harm caused by such dumping.

Slate’s Dahlia Lithwick offers this analogy of the facts in the case:

“Say your 3-year-old and your 5-year-old have dumped a bin of Legos all over the living room floor. (Except pretend these Legos ooze soil fumigant and toxic chemicals.) You have no capacity to figure out which of them did what. All you know is that your in-laws are coming, and the floor must be cleaned. What rules govern the allocation of responsibility for the dumping? What if one kid dumped only 3 percent of the Legos? Does he have to clean up the whole mess? What if one kid told the other kid to dump the Legos? Or what if he knew the other kid was going to dump the Legos and failed to stop him? And while we’re at it, what about the kid who brought the damn Legos over for a birthday party last April? How about the grown-up who drove that kid to the party? Shouldn’t Andrew’s mom be cleaning those Legos, too???”

Both the district court and the 9^th U.S. Circuit Court of Appeals found the defendants liable in the case, with the Court of Appeals holding that they could be liable for the full cost of cleaning up the sites in question. However, The New York Times reports that “the justices seemed torn [yesterday] over the question of liability and at what point a manufacturer is no longer responsible for the product.”

“This ruling is very important to watch because it will say a lot about what a manufacturer is responsible for in selling a product,” said environmental lawyer Gail Suchman. “How responsible do you make them down the supply chain? So they’re responsible for everyone messing up, whether or not they have any clue as to where the product is. That can be a real extension of liability.”

Full post as published by ACS Blog on February 25, 2009 (boomark / email).