Amy Howe Independent Contractor and Reporter

Posted Wed, November 27th, 2019 9:14 am

Argument preview: Justices to consider whether CERCLA bars state lawsuit to restore hazardous-waste site

For nearly a century, the Anaconda Smelter, located in southwestern Montana, refined copper ore for use in phone wires and power lines. The smelter shut down in 1980, the same year that Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act to manage and clean up hazardous-waste sites, dubbed “Superfund” sites. Three years later, the Environmental Protection Agency designated the smelter site as a Superfund site, and it would become one of the biggest – encompassing five towns and thousands of homes and people – and most expensive sites in the country: The smelter’s smokestacks emitted tons of arsenic and lead every day, spreading the toxic metals over roughly 20,000 acres. The EPA identified Atlantic Richfield, which owned the smelter by then, as the entity that was “potentially responsible” for the costs of cleaning up the site, and it created a comprehensive remediation plan. Atlantic Richfield has already spent $450 million carrying out that plan, but next week the Supreme Court will hear oral argument in a lawsuit by landowners within the site, who argue that Atlantic Richfield should be required to restore their property to its original condition.

The plaintiffs in the case live a few miles downwind from the smelter, on properties where metals emitted from the smelter’s smokestacks landed. In 2016, Atlantic Richfield completed all the work ordered by the EPA on their properties, but outside experts recommended more work beyond what the EPA had ordered Atlantic Richfield to do. Some of that work, Atlantic Richfield emphasizes, could actually make things worse by digging up long-buried arsenic in the soil and possibly contaminating more groundwater.

The plaintiffs’ desire to restore their land led to this lawsuit, which they filed in state court in Montana in 2008. Their lawsuit included several state-law claims – for trespass and nuisance, among other things – that seek compensation for the effects of contamination on the use and value of their land, and that everyone agrees would not be barred by CERCLA. But the plaintiffs were also seeking nearly $60 million in “restoration damages” that would require Atlantic Richfield to pay for more remediation.

Atlantic Richfield argued that the claims for money to restore the properties were trumped by CERCLA. The company pointed to a provision of CERCLA it read as indicating that state courts lack the power to review claims that constitute a “challenge to a CERCLA cleanup.”
....

A decision in the case is expected by summer.

This post was originally published at Howe on the Court.

Posted in Atlantic Richfield Co. v. Christian, Featured, Merits Cases

Recommended Citation: Amy Howe, Argument preview: Justices to consider whether CERCLA bars state lawsuit to restore hazardous-waste site, SCOTUSblog (Nov. 27, 2019, 9:14 AM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-consider-whether-cercla-bars-state-lawsuit-to-restore-hazardous-waste-site/