Does the federal “Superfund” Act prevent property owners from seeking restoration damages under state law?
This case asks the Supreme Court to consider whether private citizens can fashion their own cleanup remedies at federal “Superfund” sites. The Comprehensive Environmental Response, Compensation and Liability Act, commonly known as “Superfund,” allows the Environmental Protection Agency to create cleanup plans for polluted sites across the nation. Gregory Christian and other resident landowners (“Landowners”) near the Superfund site of Anaconda, Montana, sued the owner of the site, Atlantic Richfield, alleging that the company owed them damages to restore their properties to pre-pollution status. Atlantic Richfield argues that the Superfund Act preempts any party from seeking state-law restoration damages. The Landowners counter that the Superfund Act leaves room for additional damages beyond what the Environmental Protection Agency has already deemed appropriate. The Supreme Court’s decision will impact the certainty and finality of Superfund cleanups, private-property rights, and the balance of state and federal power.
Questions as Framed for the Court by the Parties
(1) Whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the Environmental Protection Agency ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of the Comprehensive Environmental Response, Compensation and Liability Act.
(2) Whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup.
(3) Whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.
Beginning in the late nineteenth century, the Anaconda Copper Mining Company smelted copper near the town of Anaconda, Montana. Atlantic Richfield Co. v. Montana Second Judicial District Court at 517. Over time, smelting operations created large levels of pollutants—particularly, arsenic and lead—in the surrounding town. Id. Atlantic Richfield Company (“ARCO”) bought the Anaconda smelter in 1977, and closed it just three years later in 1980. Id.; Brief for Petitioner, Atlantic Richfield Co. at 4.
In that same year, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), popularly named “Superfund.” Atlantic Richfield Co. at 517. CERCLA was passed to address the problem of sites that are contaminated by hazardous materials across the nation. Id. The Act allows the Environmental Protection Agency (“EPA”) to craft a master plan to restore a Superfund site that includes the designation of potentially responsible parties (“PRPs”) who must bear some or all of the costs of that cleanup. Id.; Brief for Petitioner at 4. In 1983, the EPA designated the Anaconda Smelter as a Superfund site. Atlantic Richfield Co. at 517. Then, in 1998, it delegated cleanup responsibilities of the Anaconda Smelter to ARCO. Id. The EPA’s plan required ARCO to clean up residential properties that contained certain levels of heavy metals. Id.
Some affected property owners in Anaconda (“Landowners”) enlisted outside experts to conduct their own study of what remedial efforts would be required for a complete cleanup. Id. at 517–18. Those experts determined that ARCO’s current efforts under the EPA’s plan would not completely restore the landowners’ properties to pre-contamination status. Id. As a result, the Landowners sued ARCO in the Second Judicial District Court of Montana (the “District Court”) in 2008. Id. at 518. In their lawsuit, the Landowners claimed common-law trespass, nuisance, and strict liability; and sought restoration damages to complete additional cleanup work. Id. In response, ARCO filed a summary-judgment motion against the Landowners’ claim for restoration damages, arguing that CERCLA barred that claim. Id. The District Court denied ARCO’s summary judgment motion and allowed the Landowners’ lawsuit to proceed. Id.
ARCO petitioned the Montana Supreme Court to issue a writ of supervisory control to decide the legal question of whether CERCLA barred, or preempted, the Landowners’ claim for restoration damages. Id. The Montana Supreme Court issued the writ but affirmed the lower court’s decision after addressing ARCO’s three arguments. Id. at 518, 523.
First, the Montana Supreme Court rejected ARCO’s contention that CERCLA Section 113 would bar the Landowners’ lawsuit “challenging” the EPA’s plan for the Anaconda Superfund. Id. at 519–20, 522. The Court reasoned that the Landowners’ own cleanup plan, if implemented, would not physically “stop, delay, or change the work EPA is doing.” Id. at 520. Instead, the Court stated that the Landowners were “simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.” Id. at 521.
Second, the Montana Supreme Court refuted ARCO’s assertion that the Landowners were PRPs who would require EPA approval under CERCLA Section 122(e)(6) before initiating their own cleanup work. Id. at 523. The Court found that the Landowners had never been treated as PRPs by the EPA “for any purpose . . . during the entire thirty-plus years” of the Anaconda Superfund’s existence. Id. at 522. Finding that the statute of limitations for assigning cleanup liability had expired, the Court concluded that “the PRP horse left the barn decades ago,” so the Landowners did not require EPA approval to proceed. Id. at 522–23.
Third, the Montana Supreme Court denied ARCO’s claim that CERCLA preempted the Landowners’ restoration claims. Id. at 523. The Court pointed to two “savings” clauses within CERCLA—located in Section 114(a) and Section 302(d)—and found that they preserved the Landowners’ ability to pursue common-law claims for restoration damages within the larger federal law scheme. Id.
CERCLA SECTION 113 AND STATE-LAW RESTORATION DAMAGES
Petitioner ARCO argues that CERCLA Section 113 bars the landowners from seeking restoration damages in Montana State Court. Brief for Petitioner, Atlantic Richfield Co. at 26. ARCO notes that the text of Section 113(b) grants exclusive jurisdiction to federal courts over “controversies arising under” CERCLA. Id. at 27. ARCO posits that the word controversies includes any claim that would challenge the EPA’s remedial plan for a Superfund. Id. at 28–29. ARCO contends that the Landowners’ claim for restoration damages is a clear challenge to the EPA’s plan for the Anaconda Superfund, because the Landowners’ plan for cleaning the site—including lower soil-action levels, greater excavation depths, and the digging of groundwater trenches—goes well beyond what the EPA has required ARCO to do. Id. at 29. Accordingly, ARCO argues, only a federal court could entertain the Landowners’ lawsuit, not the Montana state courts. Id. at 29–30.
ARCO further maintains that Section 113 prevents a challenge to a PRP like ARCO in the same way that it prevents a challenge to the EPA itself. Id. at 31. ARCO argues that the meaning of “challenges” does not depend on who actually carries out a cleanup remedy—otherwise, litigants could “circumvent” Section 113 by suing private parties like ARCO rather than the EPA. Id. at 31. Similarly, it contends that Section 113’s broad language bars state-law claims even after the EPA’s remediation plan is completed because undoing any EPA-authorized work would constitute a “challenge” no matter how much time passes. Id. at 31–32.
The Respondent Landowners counter that Section 113 permits their state-law claims. Brief for Respondents, Gregory A. Christian et al. at 21. The Landowners point to the text of Section 113(h), which they contend only limits the claims that federal courts—not state courts—may hear. Id. at 22. They also highlight Section 113(b)’s coverage of cases “arising under” CERCLA, noting that the Supreme Court has interpreted this same language to implicate federal-question jurisdiction. Id. at 24. Under that jurisdictional standard, the Landowners argue that their state-law restoration claims do not create a federal question, and the possibility that ARCO will raise its CERCLA obligations as a defense is not sufficient to implicate Section 113. Id. at 24–25. Instead, the Landowners assert that Section 113 specifically exempts diversity jurisdiction—which would include their state-law claims—from exclusive federal jurisdiction. Id. at 28–29. The Landowners point to legislative history—where officials stated that CERLCA was designed to preserve private nuisance claims—to reinforce this argument that Congress never intended for CERCLA to bar state-law actions in state courts. Id. at 29–30.
The Landowners also reject the notion that their restoration lawsuit challenges the EPA’s cleanup plan; thus, Section 113 would not be implicated in the first place. Id. at 31. They explain that a “challenge” would require the Landowners to claim that the EPA’s plan was somehow illegal under CERCLA standards. Id. at 32–33. Instead, the Landowners contend that their lawsuit is based on a different remedy standard, where Montana law permits damages to further restore a property to its pre-injury condition after ARCO completes the EPA’s plan. Id. at 34. Accordingly, the Landowners argue that nothing in Section 113 prevents their state-law claim from going forward to trial. Id. at 35.
LANDOWNERS’ STATUS UNDER CERCLA SECTION 122(e)(6)
ARCO argues that the Landowners’ status under CERCLA Section 122(e)(6) prevents them from taking any action to contradict the EPA’s remediation plan. Brief for Petitioner at 32. ARCO claims that the Landowners—just like ARCO—fit squarely within Section 122(e)(6)’s definition of potentially responsible parties, which includes owners of polluted land within the Superfund site. Id. at 32–33. ARCO argues that both the Supreme Court and the EPA have interpreted the definition of PRPs to include private landowners, because to do otherwise would create a “huge statutory void” where landowners on a Superfund site could pursue their own cleanup goals without EPA approval. Id. at 32–34. ARCO contends that the Montana Supreme Court conflated potential liability with actual liability, when in fact Landowners should still be deemed potentially liable under Section 122(e)(6) even if they will never ultimately be deemed responsible for polluting the Superfund site. Id. at 35–36. ARCO claims that a broad designation of PRPs ensures that all parties implicated by CERCLA will continue working together even after the polluting parties settle with the EPA. Id. at 37.
Furthermore, ARCO argues that CERCLA’s six-year statute of limitations—which begins when EPA-designated cleanup begins—only applies to lawsuits regarding cleanup costs, so CERCLA does not create a time period within which PRPs must be designated. Id. at 38. ARCO argues that actual liability may be determined after cleanup has begun, and to interpret CERCLA otherwise would force the EPA to delay cleanup until after it identifies and settles with all potential PRPs, many of whom the EPA would otherwise never target. Id. at 39.
The Landowners dispute their characterization as PRPs. Brief for Respondents at 36. The Landowners argue that the Supreme Court has yet to directly address the scope of PRP in Section 122(e)(6) because the Court’s prior decisions concerned the distinct phrase “covered persons” which is used in a different section of CERCLA. Id. at 37–38. The Landowners note that, even if the “covered persons” standard included all PRPs, the Landowners would qualify for an exception where their properties were polluted by no fault of their own. Id. at 47–48.
Instead, the Landowners argue that the Court should interpret the word “potentially” in PRP as encompassing only those parties that face actual risk of liability, such as ARCO. Id. at 39–40. The Landowners note that CERCLA’s procedures are designed to assign responsibility for environmental pollution and to facilitate settlements, so Section 122(e)(6) does not contemplate including innocent parties within those procedures. Id. Additionally, the Landowners note that they cannot face actual liability as PRPs because the statute of limitations has passed. Id. at 36. The Landowners assert that Congress used the limited language of PRP in order to prevent the EPA from controlling how residential landowners use their property forever, which would raise concerns about unconstitutional government takings. Id. at 41–42. Ultimately, the Landowners contend that, regardless of their status, the EPA can always seek judicial intervention if the Landowners’ cleanup threatens to worsen the Superfund’s environmental health. Id. at 46.
CERCLA AND STATE-LAW PREEMPTION
ARCO argues that its federal obligations under CERCLA preempt the state-law restoration remedy that the Landowners seek. Brief for Petitioner at 41. ARCO notes that the Supreme Court has held that requiring a party to choose between violating federal law and paying state law damages is “logically incompatible,” and that a party’s federal obligations must always prevail under the Supremacy Clause. Id. at 42. ARCO argues that the Landowners’ restoration remedy would saddle ARCO with a state-law duty to complete the Landowners’ requested cleanup or pay money damages for that specific cleanup. Id. at 43. But because Section 122(e)(6) prevents PRPs like ARCO from undertaking any remedial action without EPA approval, ARCO claims that paying damages to the Landowners for other cleanup will force ARCO to defy federal law under CERCLA. Id. at 44. In fact, ARCO notes that the EPA already blocked a tentative ARCO plan to remediate the Landowners’ properties because it went beyond the EPA’s plan. Id. at 45.
Further, ARCO emphasizes that CERCLA’s “savings” clauses are limited in nature, and do not create a preemption exception for state common-law claims. Brief for Petitioner at 51. ARCO argues that the clauses in CERCLA Section 114(a) and Section 302(d) are written generically, and that the Supreme Court has previously cautioned against reading “savings” clauses too broadly so as not to disturb carefully established federal regulations. Id. at 52. ARCO concedes that the “savings” clauses might preserve a state’s ability to impose supplemental liability on PRPs, but that the Landowners’ plan would disturb—not supplement—the EPA’s established cleanup plan, so CERCLA still preempts the Landowners’ plan. Id. at 54–55.
The Landowners respond that CERCLA does not preempt their lawsuit for restoration damages because ARCO would not be saddled with any duty that would conflict with the EPA plan. Brief for Respondent at 50. The Landowners emphasize that preemption by “impossibility” is a demanding standard for ARCO to meet, and that nothing in CERCLA makes it physically impossible for ARCO to pay damages to the Landowners so that they can restore their own properties. Id. at 50–54. The Landowners note that the mere possibility that the EPA might deny ARCO’s request to conduct further cleanup work is not a sufficient showing of total impossibility for preemption. Id. at 54. And in any event, the Landowners argue, it is highly unlikely that ARCO would require EPA approval or oversight before conducting additional restoration work for the Landowners, because ARCO has already completed all of the EPA-ordered remediation on the Landowners’ properties. Id. at 56.
The Landowners also argue that CERCLA’s “savings” clauses make it clear that the Act does not preempt state common-law claims. Id. at 62. The Landowners note that these two “savings” clauses contain “plain language” stating that “nothing” in CERCLA shall affect the traditional common-law liability of polluters. Id. at 62–63. The Landowners argue that these repeated clauses demonstrate that Congress intended for CERCLA to leave room for plaintiffs to bring Superfund-related lawsuits in state court. Id. at 64. Furthermore, the Landowners argue that CERCLA allows the EPA to bring actions to stop any plans by plaintiffs that might endanger the environment. Id. at 65.
ADEQUACY OF EPA SUPERFUND PLANS
The Chamber of Commerce of the United States of America and other organizations (“Chamber”), in support of ARCO, warn that permitting any deviations from federal EPA plans will disrupt future Superfund cleanups. Brief of Amici Curiae Chamber of Commerce of the United States of America et al. (“the Chamber”), in Support of Petitioner at 12. The Chamber argues that the EPA’s total control over a Superfund provides PRPs like ARCO with certainty and finality about their future duties, thereby encouraging earlier settlements and faster cleanups. Id. at 21. The Chamber also argue that the EPA creates a comprehensive solution for the entire community, such as allowing all interested parties—including private landowners—to provide early input into the design of the final Superfund plan. Id. at 24–25. Treasure State Resources Association of Montana and other Montana trade groups (“Treasure State Resources”), also in support of ARCO, agree, emphasizing that only the EPA is capable of addressing the complex nature of Superfund sites. Brief of Amici Curiae Treasure State Resources Association of Montana et al., in Support of Petitioner at 21. Treasure State Resources notes that the Anaconda Superfund implicates hundreds of square miles and encompasses fragile ecosystems, historical sites, and residential areas. Id. They argue that the federal government has the means and expertise to tackle these overlapping concerns; and, they caution that leaving remedial questions to an unskilled jury would upset this delicate balance. Id. at 30–31.
The Clark Fork Coalition and the Montana Environmental Information Center (“Coalition and the Information Center”), in support of the Landowners, counter that restoration damages are appropriate because the EPA plan for the Anaconda Superfund has failed. Brief of Amici Curiae Clark Fork Coalition and Montana Environmental Information Center, in Support of Respondent at 7–9. The Coalition and the Information Center argue that, despite ARCO’s cleanup work, pollution around the Superfund still lingers at toxic levels. Id. For example, the Coalition and the Information Center point to a fish kill in September 2019 and elevated frequencies of human cancer and other diseases as evidence of the continued pollution problem. Id. at 8–9, 19. The Coalition and the Information Center argue that Montana state citizens have the unusual right under their state constitution to seek restoration damages to protect their environment when the federal government does not go far enough. Id. at 14, 17. Further, the Coalition and the Information Center claim that the Landowners’ own cleanup strategies will not reverse the progress of the EPA plan, because Montana’s strict environmental laws would bar any plan that damages the environment or human health. Id. at 22.
STATE PREEMPTION AND PROPERTY RIGHTS
Washington Legal Foundation (“WLF”), in support of ARCO, argues that CERCLA should preempt private lawsuits because litigation could disrupt the uniformity of an EPA Superfund plan. Brief of Amicus Curiae Washington Legal Foundation, in Support of Petitioner at 19. WLF observes that the EPA has spent considerable taxpayer dollars over decades to create an appropriate cleanup plan for the Anaconda Superfund, but that private lawsuits that defy the EPA plan could turn all of this previous work into a “dress rehearsal.” Id. WLF warns that new cleanup plans could do more harm than good, such as by digging up polluted soil again. Id. at 20. Further, WLF argues that only preemption can prevent the fractured nature of private interests from imposing even more plans that conflict with the EPA’s mandate in the future. Id. at 19–20. WLF points out that the Landowners only represent a minority of Anaconda’s population and more groups could sue to impose their preferred plans as well. Id. Indeed, the Chamber argues that preemption ensures that the EPA can create a plan that both considers the environment as a whole and accounts for the negative externalities that self-interested lawsuits might not be concerned about. Brief of the Chamber at 23.
The Pacific Legal Foundation and the Property and Environment Research Center (“PLF”), in support of the Landowners, counter that CERCLA should reinforce, not preempt, private lawsuits that protect the environment. Brief of Amicus Curiae Pacific Legal Foundation and the Property and Environment Research Center, in Support of Respondent at 13. The PLF argues that private property rights have historically served to protect the environment because property owners can deter polluters through lawsuits. Id. at 9–10. The PLF warns that CERCLA should not be able to “bargain away” the rights of property owners by settling with polluters because those owners are usually not privy to Superfund negotiations. Id. at 8–9. Additionally, the PLF contends that a blanket federal preemption reduces local accountability at Superfund sites, because citizens will be unable to seek redress against neighboring polluters without going to the distant EPA for help. Id. at 20. They add that only private property owners can ensure accountability through legal action, especially when federal agencies themselves can be “captured” by special interests. Id.
- Gregory Dickinson and J. Michael Showalter, SCOTUS Will Review EPA’s Authority to Control Superfund Cleanups at Company’s Request, The National Law Review (June 26, 2019).
- Sylvia Carignan, Century of Toxic Gloom Drives Montanans Back to Supreme Court, Bloomberg Environment (Oct. 1, 2019).
- Ellen M. Gilmer, Superfund: “I’m Scared to Death of What the Supreme Court Might Do”, E&E News (June 20, 2019).