Monday, February 10, 2020

Two months ago, the US Supreme Court heard oral arguments in Atlantic Richfield Co. v. Gregory Christian. The case is critically important to environmental lawyers in the United States because it may alter the operation of Congress’s Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) scheme for environmental remediation. CERCLA gives EPA broad power to command government agencies and private parties to clean up hazardous waste sites. In Christian, the Court will address whether and to what extent private landowners (and ultimately a jury of lay citizens) can, through state-law property-rights’ claims, contradict EPA’s plan for cleanup and remedial efforts. The outcome of the case implicates the remedy selection process, millions of dollars in remediation costs, possibly expands liability for companies dealing with Superfund Sites, could up-end CERCLA’s release and contribution protection provisions, and portends a possible dramatic increase in state-law remediation claims. Practically, the Court’s opinion could complicate and frustrate remediation efforts at Superfund Sites around the country.

Montana Supreme Court holds that a private lawsuit does not constitute a “challenge” to EPA’s remedy

Christian deals with cleanup at and around the Anaconda Smelter, a copper ore smelter that operated for nearly a century in southwestern Montana. Though it closed in 1980, the smelter’s smokestacks emitted arsenic and lead every day over its nearly century-long operations. Designated a “Superfund” site in 1983, the Anaconda Smelter Superfund Site eventually became one of the largest Superfund Sites in the country—stretching across 300 square miles, five towns, and thousands of homes and people. The smelter’s owner, Atlantic Richfield, has spent over $470 million cleaning up the site, consistent with EPA’s comprehensive remediation plan.

Atlantic Richfield completed its EPA-ordered remediation on certain properties in 2016, but several Montana landowners sued, seeking compensation to restore their property within the Anaconda site. The landowners’ lawsuit seeks to require Atlantic Richfield to pay for additional remediation—above and beyond that required by EPA. The landowners seek deeper and more expansive soil excavation, an extensive new system of trenches, and dramatically lower soil pollutant levels than EPA’s plan.

To the Montana Supreme Court, Atlantic Richfield argued that CERCLA preempts the landowners’ claims because the statute prohibits any claim that might qualify as a “challenge to a CERCLA cleanup.” Atlantic Richfield also argued that the landowners’ lawsuit conflicts with CERCLA; namely, it is impossible to comply with EPA’s plan and the landowners’ more expansive cleanup plan.

Rejecting those arguments, the Montana Supreme Court held that a jury could award the landowners’ money damages to restore their land, even if the restoration changes or upsets aspects of EPA’s plan. The Montana Supreme Court opined that the landowners lawsuit did not “ask the Court to interfere with EPA’s plan.” Instead, according to the Montana Supreme Court, the landowners are “simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.”

The United States Supreme Court grants review to address CERCLA’s scope

Atlantic Richfield sought and obtained certiorari from the United States Supreme Court. The Court agreed to address three issues:

Whether a common-law claim for restoration seeking cleanup remedies that conflict with EPA remedies is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of CERCLA; Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and Whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

Taken together, these three issues affect the core of CERCLA’s operations. CERCLA makes polluters and a range of other actors (current landowners, legacy owners, waste generators, among others), liable for cleanup and subject to EPA’s enforcement and cleanup authority. These potentially responsible parties (“PRPs”) may agree or be unilaterally ordered by EPA to conduct site investigation or cleanup activities under CERCLA. In exchange, the PRPs that conduct site work receive certain assurances that their participation in an EPA remediation plan will protect them from further liability.

The Court holds oral arguments and we expect an opinion this term

At the oral arguments on December 3, the Justices focused their questions on the interplay between EPA’s authority to order remediation and landowners’ or a State’s ability to make “certain modifications” to cleanup efforts. Succinctly capturing the dispute, Justice Sotomayor focused her questions on whether EPA’s remediation order imposes both a floor and a ceiling—or just a floor. Consistent with its position throughout, Atlantic Richfield’s counsel explained that EPA’s orders “impose both a floor and a ceiling on the type of cleanup” allowed.

The Court should issue an opinion by the end of its term in late June or early July.