Samuel B. Boxerman is a Partner with Sidley Austin LLP in the firm’s Washington, DC office and is the WLF Legal Pulse’s Featured Expert Contributor on Environmental Law and Policy.

On June 10, the Supreme Court granted certiorari in Atlantic Richfield Co. v. Christian to consider whether the federal Superfund law bars common-law claims to restore property to a cleanup level beyond what EPA has decided is sufficient to protect the public—or whether state common law provides an avenue to seek a more protective cleanup outside the process established under CERCLA. The Court will hear arguments in the case during its October Term 2019.

The case concerns the former Anaconda Co. Smelter, a 300+ acre copper ore smelting and processing operation that started up back in 1884.  Atlantic Richfield (ARCO) purchased the facility in 1977 and then closed the site in 1980.  EPA placed the property on its National Priorities List in 1983 and substantial cleanup from the historic operations has been completed, with the remaining remedial work in process. As part of the cleanup, EPA directed the company to remediate residential yards and drinking water wells within the Site to a defined cleanup level for arsenic that EPA determined would be protective of human health and the environment.  ARCO has reportedly spent more than $400 million in cleanup costs to date.

The plaintiffs are property owners who claim the Smelter has damaged their property, and they brought various state-law claims against ARCO including (1) injury to and loss of use and enjoyment of real and personal property; (2) loss of the value of real property; (3) incidental and consequential damages, including relocation expenses and loss of rental income and/or value; (4) annoyance, inconvenience, and discomfort over the loss and prospective loss of property value; and (5) expenses for and cost of investigation and restoration of real property.

ARCO did not contest that the plaintiffs could seek money damages – thus only the last claim for “restoration damages” is at issue before the Supreme Court.  Those would be the costs to restore the properties beyond what EPA has required.  The plaintiffs had hired an expert to determine what actions would be required to “restore” their properties to pre-contamination levels, and sought to recover the expected cost of those efforts—the “restoration damages”—which would be placed in a trust account and distributed to pay for restoration work.

ARCO contended that CERCLA bars the plaintiffs’ claim for restoration damages—that as EPA has selected the remedy for the Site, a plaintiff cannot go to state court to ask a judge to impose an additional cleanup remedy beyond what EPA had established.  The Montana Supreme Court disagreed and ordered the case to proceed.

In response, ARCO sought certiorari arguing that (1) the claim is effectively a challenge to EPA’s selected remedy which CERCLA does not allow at this time, (2) the plaintiffs are themselves potentially responsible parties under CERCLA and thus cannot take a cleanup action that has not been approved by EPA, and (3) the claim otherwise conflicts with CERCLA and thus is barred by conflict preemption.  During briefing, the Court asked the federal government to weigh in—and the Solicitor General filed a brief that agreed with ARCO that the state court decision was incorrect, but still urged the Court to deny review as premature and to allow a trial court to first decide if damages were warranted.

Having taken the case notwithstanding the SG’s recommendation, it would seem more likely than not that the Court has done so in order to reverse the state court’s ruling.  If it does not, the decision could set a very unhelpful precedent under CERCLA.  CERCLA provides a stepwise, process for stakeholders to participate at each step in EPA’s remedy selection decision.  EPA considers public input and then chooses a remedy based on an administrative record, applying the criteria set forth in CERCLA and governing regulations.  That remedy is then final and is not subject to judicial review, unless and until EPA brings an action itself to enforce the remedy or recover its cleanup costs.  That certainty is crucial to private parties’ willingness to step up and agree to conduct cleanups, because if private parties implement what EPA directs, that will ensure them some measure of peace.  But, if any unhappy landowner could upset EPA’s choice in a de novo trial in state court, a private party likely will be far less willing to settle with EPA.  That would likely mean more litigation and less cleanup.