2020 Environmental Real Estate Issues

In Von Duprin v. Major Holdings, the US Court of Appeals for the 7th Circuit observed “joint and several liability often reflects the norm in complex environmental cleanup cases because most circumstances reveal numerous disposers of waste over long periods of time where after-the-fact identification of who contributed what and thus who caused what portion of the present-day harm at issue is exceptionally difficult to ascertain with reliability.”  In this case, brought under the Comprehensive Environmental Response, Compensation, and Liability Act, the district (trial level) court, determined at the summary judgment stage (prior to full trial) that joint and several liability should not be imposed because the harm was capable of apportionment.

Parties’ Experts Disagreed on Apportionment
On appeal, the 7th Circuit determined the district court wrongly concluded that no disputed issue of fact existed on apportionment.  Specifically, the district court, in assessing if the harm was “theoretically” capable of apportionment, “overread the importance of the adverb to the test.” While “everything in theory is capable of division,” the party seeking to avoid joint and several liability has the burden to prove a reasonable basis for apportionment exists in the specific case.  The 7th Circuit ruled the district court was wrong to accept one expert’s opinion when other experts hotly contested that the facts of the case allowed for a reasonable basis for apportionment.

Failure to Distinguish between Apportionment and Allocation
The 7th Circuit also concluded the district court was wrong in “treating apportionment and allocation interchangeably.”

With an indication of regret, the 7th Circuit remanded the case to the district court for additional proceedings to determine apportionment and allocation.

To see the 7th Circuit’s opinion http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D09-03/C:20-1793:J:Scudder:aut:T:fnOp:N:2757860:S:0