There was apparent consensus on the court on only one point, expressed by Justice Ruth Bader Ginsburg. “The party who shouldn’t be left holding the bag,” she said, “is the public, the innocent victims of the pollution.”
But the court seemed divided over the two central questions in the consolidated cases it heard on Tuesday: Can the seller of a commercial product be held liable for spills that were a likely result of how its customer handled deliveries? And can minor contributors to environmental contamination be made to pay for all of the cleanup costs?
Justice Stephen G. Breyer suggested that the government might have overreached on the first point when it sought to hold the Shell Oil Company responsible for selling pesticides to a chemical distribution business in Arvin, Calif., where they routinely leaked and spilled.
How would that differ, Justice Breyer asked, from holding Hewlett-Packard responsible for harm caused by the printer cartridges that its customers dispose of improperly?
Malcolm L. Stewart, a lawyer for the government, said Shell’s conduct was different because it made the shipping arrangements and knew spills occurred with every shipment.
Kathleen M. Sullivan, a lawyer for Shell, said the Superfund law, which applies to, among others, companies that “arranged for disposal” of hazardous waste, should not be read to impose “potentially crippling liability” on the sellers of useful products “with only the most attenuated connection to the harm.”
Justice Ginsburg acknowledged that the Superfund law, known formally as the Comprehensive Environmental Response, Compensation and Liability Act, “can be a punishing statute.” But she said she feared that potentially responsible companies would simply write shipping contracts so that “the moment the product reaches a destination there’s no continuing responsibility on the part of the seller.”
The second question in the cases, Burlington Northern and Santa Fe Railway Company v. United States, No. 07-1601, and Shell Oil Company v. United States, No. 07-1607, often arises when the main wrongdoer is insolvent.
A federal trial judge in California ruled that Shell should pay 6 percent of the cleanup costs and that a railroad company that owned part of the contaminated site should pay 9 percent. The United States Court of Appeals for the Ninth Circuit, in San Francisco, reversed the decision, making the two companies responsible for almost all of the costs. The chemical distributor in the case, Brown & Bryant, has gone out of business.
Maureen E. Mahoney, representing the railroad company, said ordinary legal principles should apply in the Superfund context. “Are all of the damages attributable to the harm that was caused by the defendant?” she asked. “If they’re not, then apportionment is appropriate.”
Domestic Violence
The court issued a decision on Tuesday upholding a broad interpretation of a federal law that makes it a crime for people convicted of misdemeanors in domestic violence cases to possess guns.
“Firearms and domestic strife are a potentially deadly combination nationwide,” Justice Ginsburg wrote for the seven-justice majority.
A West Virginia man, Randy E. Hayes, was indicted under the law for possessing a rifle in 2004 despite a 1994 misdemeanor conviction for battery. The question in the case was whether that conviction, under a general state law rather than one specifically aimed at domestic violence, was sufficient to make him subject to the federal gun law.
There was no dispute that the victim of the battery was Mr. Hayes’s wife at the time. Justice Ginsburg said that fact should govern the matter. While federal prosecutors pursuing charges under the gun law must prove that the violence in question was domestic, she said, it does not matter whether the original criminal conviction was under a law focused on such violence.
Chief Justice John G. Roberts Jr., joined by Justice Antonin Scalia, dissented in the case, United States v. Hayes, No. 07-608. The federal law is ambiguous, Chief Justice Roberts said, and ambiguities should be construed to favor criminal defendants. “Ten years in jail,” he wrote, “is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.”