Going in CERCLAs: The Evolution of Arranger Liability and the Not-So-Useful Useful Product Doctrine

Clarke, Martha | April 1, 2017

Since the Supreme Court decision Burlington Northern & Santa Fe Railway Co. v. United States, courts have wrestled with what it means to be an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). One aspect of arranger liability that has undergone radical change in the past decade is the useful product doctrine, which allows a party to escape arranger liability by proving it was selling a useful product rather than arranging for disposal. Prior to Burlington Northern, courts applied the useful product doctrine restrictively, only allowing parties selling virgin products to escape liability and imposing liability on parties selling useful secondary products. Following Burlington Northern, this shifted, with courts requiring concrete evidence of intent in arrangements for disposal and allowing parties selling secondary products to escape liability even when their actions directly contributed to environmental contamination. This Note argues that this shift in the useful product doctrine will negatively impact the Superfund litigation landscape, and more importantly, the environment. This Note also posits that the shift in the useful product doctrine can be correlated to a shift in administrative law, away from deferring to agency decisions and towards a more searching judicial inquiry. This Note argues that the courts should scale back their permissive approach to the useful product doctrine and give greater weight to agency expertise and agency liability determinations when ruling on arranger liability cases in the useful product arena.