Barbri CLE Webinar: Divisibility vs. Equitable Allocation Under CERCLA: Best Practices for Environmental Counsel
Barbri CLE Webinar
Presenters: William S. Hatfield of FBT Gibbons & Adam H. Love, PhD of Roux
Tuesday, January 20 at 1-2:30pm EST
This CLE webinar will examine how courts and practitioners are addressing the shifting landscape of divisibility and apportionment versus equitable allocation under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Despite early optimism in the wake of Burlington Northern & Santa Fe Railway Co. v. United States, defendants face challenges when deploying a divisibility defense, as growing case law confirms that equitable allocation remains the more common resolution.
Hosted by Barbri (formerly Strafford), this 90-minute webinar is eligible in most states for 1.5 CLE Credits.
Divisibility is a potential defense to joint and several liability under CERCLA that divides the harm caused by each party (apportionment), so if the court’s answer to this question is “yes,” then the party seeking to limit its liability may succeed. In contrast, equitable allocation is designed to assign relative responsibility among liable parties to arrive at a “fair share,” without strict divisibility of the harm among the parties. In a cost recovery suit, if the divisibility defense is not available, then a party may be found jointly and severally liable and must bring contribution claims to shift responsibility to others under an equitable allocation approach.
Listen as the panel discusses key decisions after Burlington Northern, highlighting factors that favor either divisibility or equitable allocation, examines tactical considerations for counsel, and offers guidance on structuring legal defenses for CERCLA sites. The panel will also offer practice pointers on which circumstances lend themselves to a divisibility defense, the main technical approaches available, and options on how to present this defense.
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