terça-feira, 5 de maio de 2009

A Corte Suprema americana e a questão ambiental

O Prof Farlei Martins manda a seguinte noticia para refletirmos:

The New York Times
> May 5, 2009
> Justices Limit Liability Over Toxic Spill Cases

> WASHINGTON — The Supreme Court made it harder on Monday for the government
> to recover the often enormous costs of environmental cleanups from
> companies
> with only minor or limited responsibility for toxic spills.
> The decision tightened the reach of the Superfund law, known formally as
> the
> Comprehensive Environmental Response, Compensation and Liability Act, by
> limiting both the kinds of companies subject to liability and the
> situations
> in which partly culpable companies can be made to bear the entire cost of
> cleanups.
> The case arose from environmental contamination from a chemical
> distribution
> business in Arvin, Calif. The federal government had sought to hold the
> Shell Oil Company responsible for selling pesticides to the business,
> where
> the chemicals routinely leaked and spilled. The distribution business,
> Brown
> & Bryant, later became insolvent and ceased operations.
> Shell argued that it could not be held responsible for the spills because
> it
> did not qualify under the relevant part of the Superfund law, which
> applies
> to companies that “arranged for disposal” of hazardous substances. Justice
> John Paul Stevens, writing for the majority in the 8-to-1 decision, said
> the
> statutory language applied only when companies took “intentional steps to
> dispose of a hazardous substance.”
> “Shell’s mere knowledge that spills and leaks continued to occur” with
> each
> delivery, Justice Stevens continued, “is insufficient grounds for
> concluding
> that Shell ‘arranged for’ the disposal.”
> In dissent, Justice Ruth Bader Ginsburg wrote that Shell was “well aware”
> that its deliveries “directly and routinely” resulted in spills and leaks
> for more than 20 years. She added that she would have placed the cleanup
> costs on a company “whose activities contributed to the contamination
> rather
> than on the taxpaying public.”
> The decision also addressed the liability of two railroad companies that
> had
> leased land to the distribution business. There was no dispute that these
> companies were subject to Superfund liability. The question was whether
> they
> could be made to pay all of the cleanup costs or just a portion of them.
> The trial judge limited the companies’ liability to 9 percent of the
> total.
> He based his calculations on how much land the companies owned, how long
> they owned it and where the bulk of the discharges happened. The United
> States Court of Appeals for the Ninth Circuit reversed the judge’s
> decision,
> saying those calculations were based on estimates. As a consequence, the
> appeals court said, the companies could be held liable for the cost of the
> entire cleanup.
> The Supreme Court reversed that decision, saying that apportionment of
> liability is appropriate so long as there is a reasonable basis for
> determining the contribution of each wrongdoer.
> Justice Ginsburg dissented on that point, too. While she praised the trial
> judge’s “heroic labor,” she said the railroad companies should have been
> required to prove their comparative lack of responsibility. Instead, she
> wrote, the companies simply disclaimed all responsibility.
> That is not how the adversary system is supposed to work, Justice Ginsburg
> wrote. She said she would have returned 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, to the lower courts to allow the
> parties to litigate the apportionment issue.

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