Welcome
The United States Law Week

Superfund, Montanans’ Cleanup Demands Clash at Supreme Court

Dec. 2, 2019, 11:00 AM

Atlantic Richfield Co. and a group of Montana landowners go head to head at the Supreme Court this week in a case that could shake up the EPA’s nearly 40-year-old flagship toxic waste cleanup program.

About 100 landowners in Opportunity, Mont., say Atlantic Richfield Co. is responsible for continuing to remove lead and arsenic deposited on their properties through decades of copper smelting operations.

The company and the Environmental Protection Agency have spent more than three decades cleaning up the 300-square-mile Anaconda Co. Smelter Superfund site, but the landowners say harmful amounts of heavy metals remain. They went to state court to force Atlantic Richfield to pay for additional cleanup work.

Lawyers for the company asked the Supreme Court to step in, arguing that the landowners don’t have the right to bring their case in state court while the EPA is overseeing remediation.

Allowing the lawsuit to advance would throw the billion-dollar Superfund program into chaos, leaving sites open to nonstop litigation that ignores the EPA’s cleanup plans, Atlantic Richfield told the Supreme Court.

“This case has everything,” said University of Maryland professor Robert Percival, who tracks environmental issues at the Supreme Court. “It’s got preemption and federalism, statutory interpretation and property rights.”

The Supreme Court hears oral argument Dec. 3.

‘Savings Clauses’ in Text

Atlantic Richfield and the landowners cite different provisions of the Superfund law, also known as the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, to support their claims.

The landowners focus on “savings clauses” that say CERCLA generally doesn’t interfere with state law, meaning, in their view, landowners are free to bring cleanup-related claims in state court. One provision specifies that the law doesn’t change “the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.”

University of Maryland law professor Rena Steinzor, who worked on CERCLA legislation on Capitol Hill in the 1980s, said the drafters of the law—including her boss at the time, then-Rep. James Florio (D-N.J.)—designed it to preserve people’s “opportunity to go to state court for all the traditional things that state court does.”

Otherwise, she said, companies involved in Superfund sites would “come up with the skimpiest cleanup they can get away with,” knowing they wouldn’t have to face separate claims.

Blocking Challenges

Atlantic Richfield, in turn, leans on CERCLA provisions that put the EPA in charge of Superfund cleanup plans, block most legal challenges while restoration is in progress, and prohibit anyone deemed a “potentially responsible party” (PRP) from performing cleanup work without the EPA’s approval.

The landowners are classic PRPs under CERCLA because they own land contaminated by hazardous substances, said Sara Colangelo, who leads the Environmental Law & Policy Program at Georgetown University Law Center.

“And that doesn’t mean they’re going to be held liable for cleanup or cost. It’s just a status. But it does mean that under the statute they are not permitted to pursue this independent remedy,” said Colangelo, who spent eight years at the Justice Department and often worked on Superfund cases.

Atlantic Richfield said it agrees with the landowners that CERCLA’s savings clauses carve out room for nuisance and trespass lawsuits under state law. But the landowners’ attempt to require funding for additional restoration work is a step too far, the company told the Supreme Court.

“CERCLA draws the line at a state-law restoration remedy that requires cleanups defying what EPA has ordered,” Atlantic Richfield said in a November brief.

‘Stalling Device’

The legal dispute doesn’t split along traditional ideological lines. The Trump administration, the U.S. Chamber of Commerce, and some conservatives have lined up behind Atlantic Richfield. But some other right-leaning groups, including the Pacific Legal Foundation, support the landowners, alongside Democratic attorneys general, Montana environmentalists, and the consumer watchdog group Public Citizen.

“Common law interests are important and should be respected,” James S. Burling, vice president of legal affairs for property-rights-focused Pacific Legal Foundation, said, explaining why his group got involved on the landowners’ side.

But others are worried about unintended consequences from that position. If companies have to worry about separate litigation in state court, Colangelo said, they might be less inclined to cooperate early with EPA remediation plans, drawing out the cleanup process.

The justices are going to be “very concerned about what a party gets when it agrees to a cleanup with the EPA,” said Noah Perch-Ahern, partner at Greenberg Glusker Fields Claman & Machtinger LLP in Los Angeles.

And Lewis & Clark Law School professor Craig Johnston argued that if the Supreme Court allows the landowners to push ahead with their claims, industry parties could adopt the same approach to try to delay cleanups.

“From a PRP perspective, that’s a fantastic stalling device,” he said. “If all you need to do in order to challenge that decision is to frame your arguments as a matter of state law, easy as pie.”

The case is Atlantic Richfield v. Christian, U.S., No. 17-1498.

To contact the reporters on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com; Sylvia Carignan in Washington at scarignan@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com