Is The Shrinking Availability Of Joint And Several Liability In Superfund Cases A Good Thing?

Although it has taken a surprisingly long time, the holding in Burlington Northern which greatly lowered the standard for apportionment in Superfund cases is finally being embraced by lower courts.   Last fall I blogged about a Seventh Circuit decision which rejected the trial court's conclusion in the long-running Lower Fox River Litigation (US v. NCR Corp.) that a portion of the liability was not divisible.  On remand, the trial court completely switched its earlier ruling and held that the harm was divisible based entirely on the relative volumetric contribution of the PRPs; the court then decided that the liability could be apportioned largely on each PRP's volumetric share of the cleanup costs.