CERCLA and the Choice Between Pro Tanto and Proportionate Share Settlement Allocation: Looking to the Supreme Court for Guidance

June 1995
Citation:
25
ELR 10293
Issue
6
Author
J. Wylie Donald

Editors' Summary: The effect of settlements among private parties in CERCLA contribution suits leaves courts with the choice of allocating liability among the nonsettling parties based on either the pro tanto method, which credits nonsettlors with the amount settling parties have paid, or the proportionate share method, which credits nonsettlors with the settlors' equitable share of cleanup costs. District courts have yet to achieve consensus on which method to adopt. The U.S. Supreme Court's recent admiralty case, McDermott, Inc. v. AmClyde, in which the Court chose the proportionate share rule based on fairness considerations, may provide some guidance. After summarizing McDermott and CERCLA case law thus far, this Article analyzes the respective justifications for adopting the pro tanto or proportionate share approach. The Article concludes that although McDermott's reasoning may be instructive, the unique nature of CERCLA litigation may require a different result depending on the circumstances.

J. Wylie Donald is an associate in the Environmental Law Group at McCarter & English in Newark, New Jersey. Mr. Donald thanks John A. McKinney Jr. for his insight and comments in preparing this Article, and Diane F. Janko for her invaluable assistance in completing the manuscript. The opinions expressed herein are solely the author's.

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