The U.S. Supreme Court issued its opinion on April 20 in Atlantic Richfield v. Christian, a closely-watched Superfund case.
The court ruled that a group of individual landowners on a 300 square mile Superfund site in Montana may proceed with state law claims for damages to implement a restoration plan that goes beyond the remedy that the Environmental Protection Agency selected and Atlantic Richfield has been implementing.
The landowners’ victory may prove to be nominal, however, as the court also ruled that the relief they seek cannot be awarded unless the EPA approves of their restoration plan, which the EPA has actively opposed.
Although it is uncertain what practical impact the court’s somewhat puzzling opinion will have beyond this idiosyncratic case, Atlantic Richfield does have significant implications for landowner rights, the EPA’s authority, and the role of state law claims and state courts in the Superfund realm.
At Superfund Sites, Federal Authority Retains Primacy …
The court’s most digestible ruling relates to CERCLA § 122(e)(6), which provides that “no potentially responsible party [(PRP)] may undertake any remedial action” at a Superfund site without the EPA’s approval.
Reflecting the prevailing view on the meaning of the term PRP, the court held that even though the landowners were unlikely to ever be found liable under CERCLA, they were still PRPs because, as current owners of the property, they fell into one of the four categories of “covered persons” identified in CERCLA § 107. Since the landowners are PRPs, the court ruled that they couldn’t implement their restoration plan without the EPA’s approval.
The court’s ruling reaffirms the EPA’s authority to control what occurs at Superfund sites. While the opinion leaves many questions unanswered, what is clear is that landowners must think carefully before undertaking any activity that may be considered a “remedial action.”
Although, as the court points out, “remedial action” is defined in part as encompassing enumerated technical activities, the definition is—as the court also acknowledges—“broad”, and has been the subject of extensive litigation. The court assures landowners that “planting a garden” does not constitute a “remedial action”, but it is unclear whether a landowner would be free to, for example, remove contaminated soil and replace it with clean soil in which to plant that garden.
… at Least for Now
Although as Justice Samuel Alito points out in his partial dissent, the court’s ruling on the landowners’ status as PRPs was sufficient to dispense with the case, the court chose to address an additional issue. That issue, as it was formally presented to the court, focused on whether the landowners’ claim constituted an impermissible “challenge” to the EPA’s selected remedy under CERCLA § 113(h).
The court sidestepped that question, however, holding instead that Section 113(h) only bars federal courts—but not state courts—from hearing “challenges” to remedial actions. In so ruling, the Supreme Court appears to have laid the foundation for future state law claims that could have the effect of diminishing federal authority over Superfund sites, or at least painting a new layer of uncertainty around EPA-approved remedies.
Section 113(h)’s prohibition against challenging EPA-approved remedial actions provides remediating parties with a level of certainty as to what their remedial obligations (and costs) will be. It also helps prevent litigation delays in cleanups that can already take several decades to complete. By opening the door to challenges in state court, Atlantic Richfield threatens to undermine both of these functions. Dissenting on this issue, Alito raised these concerns, warning that there is “much at stake” in allowing such challenges.
It is not clear from the Supreme Court’s opinion what types of claims and circumstances would allow a party to challenge a cleanup plan in state court. Moreover, the viability of such claims are tempered by thorny questions pertaining to preemption, sovereign immunity, and statutory interpretation.
And of course, such challenges would also need to be squared with the court’s ruling that PRPs cannot take remedial action at Superfund sites without the EPA’s approval. Nevertheless, the court’s ruling raises the prospect of increased challenges in state courts. These challenges would not necessarily be limited to arguments that the EPA’s remedy didn’t go far enough; indeed, interested parties could also seek to limit the EPA’s remedy.
Two other aspects of Atlantic Richfield could lead to a more robust role for state courts and state claims in the CERCLA realm. First, the Supreme Court took a narrow view of CERCLA § 113(b)’s grant to the federal courts of “exclusive original jurisdiction over all controversies arising under” CERCLA, concluding that the grant extends only to causes of action actually created by CERCLA.
Second, the court declined to rule on Atlantic Richfield’s argument that the landowners’ state law claim for restoration damages was preempted by CERCLA. At the very least, the court’s silence on the issue encourages impacted parties to seek similar damages where available.
It will take time for the consequences of Atlantic Richfield to be felt and understood, but the court’s opinion could lead to more challenges centered in state courts and on state law, which is a novel concept in the Superfund world.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Peter V. Keays is an attorney in the Environmental Law practice group at Hangley Aronchick Segal Pudlin & Schiller in Philadelphia. He previously served as a law clerk to judges on the U.S. Court of Appeals for the Second Circuit and the U.S. District Court for the District of Montana.