Burlington Northern & Santa Fe Railway, et. al. vs. United States, et al.
I know you are quite surprised, having just written a blog on robot judges, I am writing about something as mundane as a decision that just came down from the United States Supreme Court. Well, I have a special interest in this case having filed an amicus brief in support of the Petitioners on behalf of the Washington Legal Foundation and because the topic was of considerable concern to me because it involved the quality of our legal system.
If you read the opinion, it may appear to you to be a simple interpretation of CERCLA. Shell was one of the parties. The district court and the 9th Circuit had concluded that Shell arranged for the disposal of a hazardous waste, simply because it knew that some of the product it sold could be spilled when unloaded.
The 9th Circuit also rejected the apportionment that the district court adopted in limiting the liability of the parties suggesting that apportionment was only available by meeting a standard of proof which the dissenting members’ en banc pointed out was essentially impossible to prove.
My brief demonstrated that this conduct by the courts was not an aberration, but a systematic effort to substitute their judgment as to who should be liable for that of the Congress, taking them step by step through a series of cases I litigated where the courts perverted common meanings and concocted legal standards to escape liability that were incapable of being achieved. These were merely efforts to cloak their improper conduct.
Although our case was cited by the Supreme for the principle that the Supreme Court finally required the 9th Circuit apply, not simply pay lip-service, I was saddened that my client had essentially been robbed by a judiciary who did not understand their role. In many respects the facts of our case were far more compelling than the Burlington facts. For example, you could only conclude that our waste was a hazardous substance if you concluded every substance in the universe was a hazardous substance and that the proof the courts required to establish to divisibility was not extremely difficult as in the Burlington case; in our case it was impossible. So why did we not get cert granted although were had wide spread amicus support. I suspect it was because it was the heyday of the environmental movement. Although the court voted 8 to 1 in favor of the Petitioners, not a close case, taking our case was simply not the cool thing to do—the Supreme Court had more important things to do than protect the rights and property of my clients; I wonder what that might have been?
