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Supreme Court issues Landmark CERCLA Ruling Finding that State Law Challenges to USEPA Cleanup Can Be Raised in State Court (But Plaintiffs Still Lose)

Siros Lawson HeadshotBy Steven M. Siros and Matthew G. Lawson

On Monday, April 20, 2020, the United States Supreme Court issued a key opinion regarding the preclusive effect of the Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA), 42 U.S.C. Section 9601, on state common law remedies within Superfund Sites.  In Atlantic Richfield v. Christian, Case No. 17-1498, the Supreme Court affirmed in part and vacated in part a decision by the Montana Supreme Court that “restoration claims” asserted by private property owners could go forward against a potentially responsible party (PRP) that had previously settled its CERCLA liability with the United States Environmental Protection Agency (USEPA). 

The case involves the Anaconda Smelter Site, a Superfund site covering 300 square miles of property contaminated by historical smelter and ore processing operations.  In 1983, USEPA identified Atlantic Richfield Co. as a PRP for the site’s contamination and the parties entered into a settlement agreement that required Atlantic Richfield to investigate and remediate the site under the oversight of USEPA.  In the 37 years since, USEPA has managed an extensive cleanup at the site, which included the removal of 10 million cubic yards of contaminated soil and capping in place an additional 500 million cubic yards of waste over 5,000 acres.  Atlantic Richfield estimates that it has spent approximately $450 Million USD remediating the site and that its cleanup is nearly complete. 

However, the USEPA-mandated cleanup standards were deemed insufficient by a number of local landowners who allege that their properties remain damaged by Atlantic Richfield’s contamination.  The landowners asserted common law tort claims against Atlantic Richfield seeking funds to remediate their properties—located within the Superfund Site—beyond the levels required by the USEPA-approved remedy.  For example, the plaintiffs sought funding to remediate arsenic levels in their properties’ soil to a level of 15 parts per million, rather than the 250 parts per million limit approved by USEPA.  In total, the additional cleanup efforts sought by plaintiffs are estimated to cost Atlantic Richfield an additional $50 to $58 million in cleanup costs.  Following the Montana Supreme Court’s holding that the landowner’s restitution claims could proceed in spite of Atlantic Richfield’s settlement with USEPA and the ongoing cleanup effort, Atlantic Richfield appealed the issue to the Supreme Court.

Atlantic Richfield argued that plaintiff’s claims were barred because CERCLA §113 strips courts of the jurisdiction to review challenges to USEPA cleanup plans.  Atlantic Richfield further argued that plaintiffs’ restoration claims were precluded by CERCLA §122(e)(6), which provides that “no potentially responsible party may undertake any remedial action” at the site without EPA approval.  Atlantic Richfield cautioned that the Montana Supreme Court’s contrary reading of CERCLA would throw a wrench into the Act’s carefully balanced settlement scheme by allowing landowners at Superfund sites to “shred EPA’s plans and impose different, and potentially detrimental, multimillion-dollar cleanups.”  In an amicus brief, The Chamber of Commerce and other industry groups sided with Atlantic Richfield, arguing that the Montana Supreme Court’s ruling would create “chaos across the Nation’s Superfund sites, with EPA pursuing one remediation course and various ad hoc private lawsuits mandating different, potentially dangerous or conflicting remediation work.” An amicus brief was also filed by the Solicitor General on behalf of the United States, which argued that the Supreme Court should deny Atlantic Richfield’s writ of certiorari because the Montana Supreme Court had yet not reached a final judgment in the underlying dispute and review of the proposed questions was premature at the current state of litigation. However, the Solicitor’s amicus brief went on to state that—in the event the Supreme Court granted certiorari—the Court should find that that Montana Supreme Court erred in holding that the landowner’s claims for restoration damages did not constitute “challenges” to USEPA’s selected remedy under CERCLA §113. The Solicitor reasoned that enactment of the landowner’s proposed restoration actions would “directly impact the implementation” of USEPA’s existing remedy and that the proposed actions therefore constituted a challenge to the cleanup.

In response, plaintiffs argued that their common law claims were not barred by CERCLA §113 because the claims did not “arise under” CERCLA.  In addition, the plaintiffs argued their claims for money to restore their property did not constitute a “challenge” to the cleanup because plaintiffs were not seeking to overturn the USEPA order or otherwise asking the court to review that order. Rather, plaintiffs were merely seeking to compel Atlantic Richfield to “restore” their impacted properties by further removing impacted soils that remained unaddressed by the USEPA cleanup order based on Minnesota common law statutes.

In a split opinion, the Supreme Court ultimately held that the plaintiff’s state law claims against Atlantic Richfield were not precluded by CERCLA, but that the plaintiffs could not move forward with additional restoration activities without first securing approval from USEPA. First, the court held that §113 did not divest the Montana Supreme Court of jurisdiction over plaintiff’s claims because the state common law claims did not arise under CERCLA. However, the Supreme Court went on to find that—as owners of property located within the Superfund Site—plaintiffs were themselves PRPs for the Anaconda Smelter Site. Thus, under CERCLA §122, plaintiff were precluded from implementing any remedial actions at the site without first securing USEPA approval. As reasoned by Chief Justice Robert’s majority opinion, “under the landowners' interpretation, property owners would be free to dig up arsenic-infected soil and build trenches to redirect lead-contaminated groundwater without even notifying EPA…[w]e doubt Congress provided such a fragile remedy to such a serious problem.” 

Justice Alito filed a separate opinion—concurring in part and dissenting in part—in which the Justice endorsed the Court’s finding that plaintiffs were PRPs under CERCLA. However, Justice Alito argued that the court should not have reached the question of whether state courts have jurisdiction to entertain “challenges” to EPA-approved cleanups. Justice Alito went on to clarify his understanding that under the Court’s majority opinion, “the Montana Supreme Court has two options on remand: (1) enter a stay to allow the landowners to seek EPA approval or (2) enter judgment against the landowners on their restoration damages claim without prejudice to their ability to refile if they obtain EPA approval.” Under either scenario, USEPA approval would be required and therefore Justice Alito concluded that the Court should not have opined on the jurisdictional question.

Justice Gorsuch also filed a separate opinion concurring in part and dissenting in part, in which Justice Thomas joined. Justice Gorsuch agreed that the Montana state court had jurisdiction over plaintiffs’ state law claims but disagreed with the Court’s conclusion that plaintiffs were PRPs under CERCLA and therefore precluded under CERCLA §122 from challenging the USEPA cleanup plan. Justice Gorsuch argued that CERCLA was enacted to supplement, not supplant, state common law remedies available to innocent landowners damaged by third-party contamination. Thus, Justice Gorsuch opined that plaintiffs’ state law claims should be allowed to go forward without the need to secure permission from USEPA.

Jenner & Block’s Corporate Environmental Lawyer will continue to track and update on this case as it is remanded back to the Montana Supreme Court.