Toxic sludge oozes at the Supreme Court.

Toxic sludge oozes at the Supreme Court.

Toxic sludge oozes at the Supreme Court.

Oral argument from the court.
Feb. 24 2009 6:43 PM


Toxic sludge oozes at the Supreme Court.

(Continued from Page 1)

Sullivan represents Shell. (Disclosure: Sullivan taught me Con Law II.) She takes umbrage at being labeled an "arranger" of toxic dumping because her client did not "arrange" using the ordinary meaning of the word: "make plans or preparations to do something." Her client sent D-D to B&B via common carrier tank truck without knowledge of, or plans for, the spillage and leakage. Ginsburg wonders whether Shell is attempting to "arrange themselves out of arranger liability."

No way, says Sullivan. "The key for arranger liability is that you arrange for spills." Shell did no such thing. Justice Samuel Alito screws up his face in that way he does that suggests he sees dead people and asks whether there would be arranger liability if Shell chose to deliver its waste by picking a cheaper transport company that caused more spillage than its competitor. Sullivan replies that Shell received no economic benefit from the pollution. She adds that the courts' theory of arranger liability "would mean that the chlorine company is liable when the pool-supply store spills a few drops of chlorine" or "the maker of perchloroethylene is liable when the dry cleaning establishment spills dry cleaning fluid."


Ginsburg observes that "Shell had a manual which told its purchasers how to handle this material, and was well aware that B&B was not following the precautions laid out in the manual." Sullivan says it's "perverse" to punish manufacturers for coming up with instructions about how to handle their products safely.

Mahoney presents the second part of the consolidated case: That the court wrongly imposed joint and several liability on Shell and the railroad rather than "apportioning" responsibility between the dumpers. This depends partly on a dispute over whether, as the trial court found, Shell and the railroad pursued a "scorched earth" defense, accepting no responsibility and thus contributing no information that would assist the trial court in apportioning liability. Mahoney and Ginsburg spar over this point for some time, with Mahoney insisting that the record is full of evidence to support apportionment: "What the Ninth Circuit says is that, even though B&B began dumping thousands of gallons of chemicals in 1960, that all of that harm that was caused by B&B has to be paid by the railroads—that's almost $40 million now—because they can't prove with precision whether their share of the damages might be zero or 1 million or 9 million."

Deputy Solicitor General Malcolm Stewart tries to argue that he represents the government, so he wins. (See Marzulla, above.) But for some reason, Justices Stephen Breyer and David Souter have developed a massive soft spot for the polluters in this case and thus bludgeon him with unanswerable hypothetical questions. Breyer soars for at least three minutes on the wings of an inscrutable fact-pattern about whether Hewlett Packard is responsible for Justice Breyer's repeated failure to properly dispose of his printer cartridges. Or his car batteries. Breyer is teeming with ecological guilt this morning. Scalia and Stewart do a few turns around the floor about when Shell gave up ownership of its toxic sludge. It sounds very much like the fight in which the kid who took apart the Lego Death Star, to make a Lego meth lab, insists the kid who built the Death Star needs to clean the whole thing up.

The job of cleaning up this mess of a case falls to Sullivan, who caps her rebuttal with a mocking poke at the lower courts. They slapped her clients with a monster cleaning bill based on the "heroic assumption that a few drops, spilled two football fields away of a volatile substance that evaporates twice as fast as water, would be picked up by a rainfall that could happen at the relevant quantities only once every 10 years." Maybe this isn't a case about sending women in to clean up messes. Perhaps it's just the opposite: Sullivan and Mahoney are so cool, they can make refusing to clean up after yourself look good.