Toxic sludge oozes at the Supreme Court.

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

Superfun!!!

Toxic sludge oozes at the Supreme Court.

Justice Ruth Bader Ginsburg. Click image to expand.
Justice Ruth Bader Ginsburg

I leave it to you to decide whether it's only too fitting that a trio of female superlawyers dominated oral argument in today's Supreme Court case about cleaning up complex messes. First, you have the oral advocacy dream team of Maureen Mahoney and Kathleen Sullivan, defending, respectively, the Burlington Northern and Santa Fe Railway Company and Shell Oil. If any two women can possibly put the "superfun" back into a Superfund case, they can. And then you have Ruth Bader Ginsburg, back on the bench just weeks after surgery for pancreatic cancer. Ginsburg is so peppy today, she can't stop asking questions long after the red light has illuminated. Ginsburg shows perfect command of the record—footnotes and citations hurled fast and furious—while poor Justice Antonin Scalia, suffering from what sounds like laryngitis, throws his hands up in a mostly fruitless effort to get a word in.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

This is a case that is perhaps best understood by way of a metaphor. Say your 3-year-old and your 5-year-old have dumped a bin of Legos all over the living room floor. (Except pretend these Legos ooze soil fumigant and toxic chemicals.) You have no capacity to figure out which of them did what. All you know is that your in-laws are coming, and the floor must be cleaned. What rules govern the allocation of responsibility for the dumping? What if one kid dumped only 3 percent of the Legos? Does he have to clean up the whole mess? What if one kid told the other kid to dump the Legos? Or what if he knew the other kid was going to dump the Legos and failed to stop him? And while we're at it, what about the kid who brought the damn Legos over for a birthday party last April? How about the grown-up who drove that kid to the party? Shouldn't Andrew's mom be cleaning those Legos, too???

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It rapidly becomes clear at oral argument this morning that folksy hypotheticals of this nature are not going to get us all that far in clarifying a Superfund case.

In 1980, responding to environmental disasters such as the one at Love Canal, Congress passed the federal Superfund law to clean up hazardous waste sites. While it appears to be a complicated statute, the gist is that liability will be imposed for polluters or anyone who has ever met a polluter, including: the current waste-site owners, the prior owners, the "arrangers" of the waste transfer (more on this momentarily), and the transporters.

Today's consolidated cases, Burlington Northern-Santa Fe Railway Co. v. U.S. and California, and Shell Oil v. U.S. and California, both involve an agricultural chemical distribution facility in Arvin, Calif., called B&B. They had possibly been dumping toxic goo since 1960. In an effort to recoup the money it spent to clean up the site, in 1996 the EPA sought to impose liability on both the railroad that owned part of the contaminated land and Shell Oil, which sold a pesticide known as D-D to B&B. (I know, Zzzzzz …)

The idea was that since B&B was out of business, someone had to pay for the cleanup, because otherwise the cost falls on the taxpayer, who is already the victim of toxic dumping. Both the railroad and Shell lost in the trial court and lost again at the U.S. Court of Appeals for the 9th Circuit, chiefly because the government always wins these cases. A 1989 law review article by Roger Marzulla described government lawyers bringing Superfund cases as needing to say only: "May it please the court, I represent the Government and therefore I win."

The appeals court found Shell liable because it "arranged for" the disposal of hazardous substances (called "arranger liability"). It found the railway owned the dump site. Then it held both companies jointly and severally liable for the whole cost of the cleanup. If this strikes you as having all the basic fairness of "you smelt it, you dealt it"—well, yeah. So the companies are appealing yet again.

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