U.S. Supreme Court Watch (ARCO v. Christian): Can Private Parties Sue For More Clean Up Than EPA Requires?
December 2, 2019
The Supreme Court will hear oral arguments tomorrow, December 3, in a CERCLA case that could have ramifications for environmental law practitioners around the country. The case, Atlantic Richfield Co. v. Christian (“the Christian case”), involves challenges to EPA’s authority to determine and approve remedial plans and clean up goals in the face of state laws which provide for more stringent clean up standards and the federal courts’ exclusive jurisdiction to determine disputes arising under CERCLA.
The Christian case involves the Anaconda Smelter Site, an old copper smelter in Montana that was declared a superfund site in 1983 that is owned by Atlantic Richfield Company (“ARCO”) the designated responsible party. Since then, EPA has overseen remediation efforts by approving all remedial plans and clean up standards for the Site to clean up the tailings, furnace slag, and flue dust that permeate the five towns encompassed within the site. EPA expects to complete most of the remediation by 2025, which includes removing hundreds of thousands of cubic yards of soil from residential yards and pasture fields.
But Respondents, a group of landowners in the towns of Opportunity and Crackerville that live within the superfund site, want a more stringent clean-up plan. In 2008 they sued ARCO in Montana state court pleading common law tort claims and asking for more stringent clean-up under a Montana statute providing for restoration of private property. The requested relief creates one of the central issues in this case since the landowners’ restoration plans would require more remediation than provided by EPA and ARCO. Petitioner ARCO filed a motion for summary judgment on the restoration damages claim arguing that the Montana state court lacked jurisdiction. The state court denied ARCO’s motion and the Montana Supreme Court affirmed.
ARCO makes three main arguments why the claim for restoration costs should be dismissed. First, ARCO points to two provisions of CERCLA that it claims work together to bar suits in state courts that challenge EPA’s remedial plans. CERCLA Sec. 113(b) gives federal courts exclusive jurisdiction over all controversies arising under CERCLA. Sec. 113(h) prevents federal courts from hearing any “challenges to removal or remedial action.” ARCO argues that the claim for restoration damages is a “challenge” to EPA’s remedial plan and thus is a controversy arising under CERCLA 113(b). As such, the claim should remain under the exclusive control of the federal courts.
Second, ARCO argues that Respondents are potentially responsible parties. If deemed PRPs, ARCO argues that Respondents’ remedy claim constitutes unauthorized remedial action that is barred by Sec. 122(e)(6) since they would be required to use those funds to restore their properties.
Lastly, ARCO argues that CERCLA preempts Respondents’ restoration claim. Respondents allege that Montana law requires ARCO to restore their land. But ARCO claims that doing so would be in direct conflict with CERCLA Sec.122(e)(6) making it impossible to comply with both federal and state laws. Additionally, ARCO is required to follow EPA’s remedial plan as directed whereas Respondent’s restoration plan allegedly directly conflicts with EPA’s plans. ARCO also argues that Respondents’ claims are barred by obstacle preemption. Allowing restoration remedies to proceed in state court would prevent EPA from achieving many of CERCLA’s objectives like securing voluntary cooperation with parties at Superfund sites.
In response to ARCO’s argument that CERCLA prevents state courts from hearing restoration claims, Respondents assert that the case does not arise under CERCLA nor assert any “challenge” to EPA’s remedial order because the claim does not turn on the validity of EPA’s orders. Their restoration plans do not involve compelling or preventing EPA from doing any action.
Respondent’s also contest ARCO’s assertion that Respondents are PRPs. Respondents argue that the correct interpretation of PRPs should only be parties that face some risk of CERCLA liability and might thus settle. If ARCO’s statutory interpretation is followed, Respondents assert that people whose property had been contaminated could never take any steps to clean their property without EPA approval, stripping away private property rights.
Finally, Respondents maintain that the restoration damages claim is not preempted by CERCLA. If made to pay restoration damages to Respondents, ARCO would not be physically unable to comply with both CERCLA and Montana State law because Montana law does not impose a restoration duty on Arco but rather it subjects ARCO to pay a penalty for violating state law. ARCO could also get EPA’s consent making compliance with CERCLA theoretically possible. Finally, they argue that the restoration request was not an “obstacle” to CERCLA’s purpose. CERCLA was not meant to be an exclusive remedial framework for all harm caused by toxic contaminants but rather allows for state law remedies as authorized in the statute’s text. They also point to various anti-preemption provisions of CERCLA evident of Congress’s intent to allow state law tort claims. The United States also filed an amicus brief that supports dismissing Respondents’ claims for restoration damages. The US brief advances the same arguments raised by ARCO.
The Supreme Court’s decision could choose to narrowly decide the Christian case by finding that the Montana courts, or other courts, have no jurisdiction to hear disputes concerning EPA’s authority under CERCLA to determine the most feasible remedy and to set clean up goals that it has determined are protective of health and the environment. However, if the Court decides to allow private landowners to sue in state court for more stringent remedial plans and standards, it could create greater uncertainty and confusion about the most appropriate clean up plan for a Site and the applicable oversight for obtaining approvals and then closure of these Sites. Further, it could have widespread implications for other issues at CERCLA sites overseen by USEPA and for Trustees seeking natural resource damages. Could private parties sue for natural resource damages at CERCLA Sites under State law or use common law claims when EPA and other government Trustees have previously determined and obtained recovery for the loss of natural resources? There is a myriad of additional questions and potential uncertainties that could unfold. If the Court allows the landowners to proceed in state court, it could unleash a host of new litigation that could force PRPs to pay for additional remedial work that goes beyond EPA’s remediation plan. Hopefully, the Supreme Court will recognize the potential consequences and issues a ruling that firmly establishes EPA and the federal courts as the final decision-makers at CERCLA sites.