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Environment & Energy Report

Supreme Court Wary of Disrupting Superfund Cleanup (Corrected)

Dec. 3, 2019, 5:25 PMUpdated: Dec. 3, 2019, 10:08 PM

A debate over Montana landowners’ potential liability for toxic metals in their backyards, deposited over decades of smelting operations, dominated oral arguments involving the landowners, the U.S. EPA, and Atlantic Richfield Co. before the Supreme Court Dec. 3.

The court appeared reluctant to side with the landowners in Atlantic Richfield v. Christian, a major environmental cleanup case that could shake the Superfund program to its core. Justices on both ends of the ideological spectrum seemed troubled by the prospect of hindering landowner rights, but reluctant to interfere with the Environmental Protection Agency’s authority.

Montana’s Supreme Court previously allowed the landowners to proceed with their request for cleanup beyond what the EPA has authorized, as well as their request for Atlantic Richfield to pay the bill. The company brought the case to the U.S. Supreme Court.

Justice Ruth Bader Ginsburg hinted that resolving the question of the landowners’ status as potentially responsible parties could be a relatively simple way to decide the complex case. If the court says the landowners are potentially liable, and they must seek EPA’s permission for additional cleanup at the Superfund site, “I don’t think the further questions need to be addressed,” she said.

The EPA has left the door open for the landowners to present their own cleanup plan for the agency’s review.

“There was a shared concern for avoiding interference with EPA’s cleanup, but there also seemed to be an effort to try to find some middle ground,” said University of Maryland professor Robert Percival, who tracks environmental issues at the Supreme Court and attended the arguments.

Liability for a Toxic Legacy

The case centers on about 100 landowners in Opportunity, Mont., who claim Atlantic Richfield Co. is responsible for removing the lead and arsenic deposited on their properties through years of copper smelting operations in nearby Anaconda. The company bought and shut down the smelter decades ago.

Atlantic Richfield and the EPA have spent more than three decades cleaning up the resulting 300-square-mile Anaconda Co. Smelter Superfund site. The landowners, whose properties are part of the Superfund site, say harmful amounts of heavy metals remain.

Williams & Connolly LLP attorney Lisa S. Blatt, representing Atlantic Richfield, argued that allowing the landowners’ claims for further cleanup to move forward could spark extensive litigation.

Siding with the landowners could open the door to hundreds of thousands of landowners on Superfund sites across the country imposing their own “piecemeal” restoration for polluted areas, Blatt said.

The Montana landowners’ particular proposal to clean their properties would conflict with the EPA’s plan for the area, Blatt said, meaning Atlantic Richfield would have to violate the agency’s cleanup decision for the Superfund site to implement the landowners’ wishes.

“All of the pillars of their plan violate EPA’s order,” she said.

The company claims the landowners should be treated as “potentially responsible parties,” or PRPs, a status that would restrict the landowners from performing their own cleanup without EPA’s approval.

Justices Sonia Sotomayor and Elena Kagan questioned whether landowners should be treated as such, if they have no actual liability for the pollution at a Superfund site.

“To apply that section to these people seems to be a stretch,” Kagan said.

Proposing a Plan

If the landowners are potentially responsible parties, they would need to seek EPA’s review of their cleanup plan, a few of the justices said.

“Someone in your position should have to go and get EPA’s permission,” Justice Stephen G. Breyer told Joseph R. Palmore of Morrison & Foerster LLP in Washington, who represented the landowners.

“We are not required to get approval because we are not PRPs,” Palmore said.

Christopher G. Michel, assistant to the solicitor general, said the landowners haven’t formally presented their cleanup plan to the EPA, so the agency hasn’t said whether it would approve it.

“We’re not saying never,” he said.

To contact the reporters on this story: Sylvia Carignan in Washington at scarignan@bloombergenvironment.com; Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com