Opinion analysis: Broad consensus on a narrow win for business in Superfund dispute

In December the Supreme Court heard oral argument in a dispute arising out of the Anaconda Smelter, which refined copper ore in southwestern Montana but also became a major polluter and, eventually, a “Superfund” site whose cleanup was supervised by the federal Environmental Protection Agency. The case pits Atlantic Richfield Co., which owned the smelter when it shut down in 1980 and has spent nearly a half-billion dollars cleaning up the site following an EPA plan, against local landowners, who want the company to spend roughly $50 million more to return their properties to their original condition. Today the Supreme Court ruled that the landowners are “potentially responsible parties” under federal environmental law and would therefore need approval from the EPA before taking any action to restore their properties. The decision was a relatively narrow one that allowed the justices to resolve the dispute without having to address some of the more complicated issues lurking in the landowners’ case, such as whether the landowners’ claims are more broadly trumped by the federal Superfund law.

In an opinion by Chief Justice John Roberts, the court began with a technical but important question: whether the U.S. Supreme Court has the power to review the Montana Supreme Court’s decision allowing the landowners’ claims to go forward. The justices unanimously agreed that it does. And by a vote of 8-1 (with Justice Samuel Alito dissenting), the justices also agreed that the Comprehensive Environmental Response, Compensation, and Liability Act, the federal law that Congress enacted four decades ago to manage and clean up hazardous waste sites, does not take away the Montana courts’ power to hear the landowners’ claims. Although CERCLA gives federal district courts exclusive power to hear lawsuits “arising under” CERCLA, Roberts explained, the landowners’ case arises under Montana law rather than CERCLA.

By a vote of 7-2, with a slightly different majority (including Alito, with Justice Neil Gorsuch filing a dissent that was joined by Justice Clarence Thomas), the Supreme Court reversed the Montana Supreme Court’s ruling that the landowners are not “potentially responsible parties” under CERCLA. Roberts pointed to a series of definitions in CERCLA to reach this conclusion: The list of classes of potentially responsible persons, Roberts noted, includes the “owner” of a “facility,” which is in turn defined to include any area where a “hazardous substance” – such as arsenic and lead, the pollutants on the landowners’ properties – have “come to be located.” “Because those pollutants have ‘come to be located’ on the landowners’ properties,” Roberts wrote, “the landowners are potentially responsible parties.”

Roberts pushed back against the suggestion, made by both the landowners and by Gorsuch in his dissent, that the landowners cannot be “potentially responsible parties” because CERCLA’s six-year statute of limitations to recover costs has already run, and they could not be sued to be held responsible for clean-up costs. The court’s interpretation of the term “potentially responsible parties,” Roberts continued, is consistent with CERCLA’s goal of having, “as its name suggests,” a comprehensive remedial plan for hazardous-waste sites, spearheaded by the EPA, “rather than tens of thousands of competing individual ones.” By contrast, Roberts contended, “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, so long as they have not been sued within six years” of the start of the clean-up. “We doubt Congress provided such a fragile remedy for such a serious problem,” Roberts observed.

In another counterpoint to the Gorsuch dissent, Roberts made clear that today’s ruling does not absolve Atlantic Richfield of any additional responsibility for the pollution on the Anaconda Smelter site. Atlantic Richfield, Roberts noted, could potentially be held liable under Montana law for the landowners’ loss of use of their property, as well as the loss of value. The only issue before the Supreme Court today, Roberts stressed, is “whether Atlantic Richfield is also liable for the landowners’ own remediation beyond that required” by CERCLA. “Even then,” Roberts continued, “the answer is yes—so long as the landowners first obtain EPA approval for the remedial work they seek to carry out.”

In his dissent, Gorsuch indicated that he would have allowed the landowners’ lawsuit to go forward. In his view, CERCLA was intended “to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land.” Pointing to the plain meaning of the term “potentially responsible parties,” he maintained that there is “simply no way the landowners here are potentially, possibly or capable of being held liable by the federal government for anything,” particularly because the window for bringing a CERCLA claim against them has already passed. And CERCLA “says nothing about the rights and duties of individuals” like the landowners in this case, Gorsuch continued, who are not “potentially responsible parties.”

What Atlantic Richfield’s case really boils down to, Gorsuch concluded, is not a legal argument but a policy argument: “On its view, things would be so much more orderly if the federal government ran everything.” But, Gorsuch countered, “maybe, too, good government and environmental protection would be better served if state law remedies proceeded alongside federal efforts. State and federal law enforcement usually work in just this way, complementing rather than displacing one another.” “The real problem,” Gorsuch continued, “is that Congress, not this Court, is supposed to make judgments” like these. And what Congress decided, is that “instead of requiring state officials and local landowners to beg Washington for permission” to carry out a cleanup, the federal government should have to go to court to stop that cleanup.

This post was originally published at Howe on the Court.