In a recent
decision with far-reaching implications for owners of contaminated property, the
U.S. Supreme Court has ruled that the
In a split
decision (7-2) dated April 20, 2020, the Supreme Court decided that CERCLA does not preclude
claims in state courts seeking additional cleanup of Superfund sites beyond
what the federal Environmental Protection Agency (EPA) has required, and/or damages
or other relief under common-law torts like nuisance, trespass, and strict
liability.
The case, cited as
Atlantic Richfield, Co. v. Christian, et. al., Docket No. 17-1498, 590
U.S. ___ (April 20, 2020), involved arsenic and lead contamination of more than
300 square miles of land in Montana by a smelter operated by Atlantic Richfield
Company (ARCO). For 35 years, EPA worked
with ARCO to clean up the site.
Specifically, the Supreme Court held
that, although CERCLA §113(b) provides that “the
United States district courts shall have exclusive original jurisdiction over
all controversies arising under this chapter,” the landowners’ case against
ARCO does not “arise under” CERCLA. Because it arises under state law,
jurisdiction in the state courts is appropriate.
Therefore,
state law claims may go forward in state court against a responsible party
under Superfund. The upshot is that owners of contaminated property
liable under Superfund also may be liable under state common law principles for
remediation beyond what EPA has required, provided that the plaintiffs obtain
EPA approval for the extra remedial work.
In 2008, 98 landowners
within the ARCO Superfund site sued in state court, under Montana law, seeking
damages and other relief for trespass, nuisance and strict liability claims. The plaintiffs’ proposed a restoration plan
that went beyond the cleanup efforts being implemented by ARCO.
Montana law allows
a landowner to seek “restoration damages” or a monetary award to be used to
finance the landowner’s plan for remediating the contaminated property.
The Montana state
courts rejected ARCO’S arguments that CERCLA precludes state courts from
hearing such restoration damages claims and prohibits landowners from taking
any remedial actions without EPA approval.
On review, the
Supreme Court agreed that the Montana courts had jurisdiction to hear the state-law
claims, but held that ARCO would be liable for the landowners’ remediation plan
only if the landowners had obtained EPA approval to implement it. Because of
the posture of this remedy, the Court left open an issue of whether Superfund
preempts the type of state statute the plaintiffs were using for their claims.
Lawsuits over
cleanups of contaminated sites – whether litigated under state or federal law –
are typically complex matters in which parties spend great effort and expense
to identify who is responsible, how much each responsible party must pay for
remediation, and just how “clean” the site ultimately should be.
Prior to this
decision, attorneys generally understood that state law claims could not be
used to challenge cleanups overseen by EPA under CERCLA. In addition, EPA settlements usually have set
a limit on the responsible party’s liability under CERCLA.
Consequently, this
Supreme Court ruling likely will lead to more – and more complicated – cleanup
and cost recovery litigation. It will
encourage owners of properties within or near Superfund sites to sue under
state law, in state courts, for additional or different remedial actions,
monetary obligations, and natural resource damages where previously that was
not seen as a viable option.
The Supreme Court’s
decision also may encourage citizen groups, without ownership interest in
affected properties, to sue in state courts to enforce state Superfund and
other pollution laws. In Massachusetts –
as in about a dozen states – resident groups can sue alleged violators to
enforce state environmental requirements, such as in M.G.L. c. 21E, using the
so-called 10-citizen-suit statute. M.G.L. c. 214, §7A.
To summarize, the ARCO
case holds that, while CERCLA does grant federal courts exclusive jurisdiction
to hear claims brought under the Superfund law, federal courts do not have
exclusive jurisdiction over all lawsuits concerning Superfund sites.
State courts have
jurisdiction to entertain state-law claims involving Superfund sites that are
under EPA’s purview, such as landowner claims for traditional legal wrongs,
additional types of remedies, and even money damages related to a landowner’s
own EPA-approved remediation plan.
Stay tuned to
learn what such a new EPA approval process may look like, what discretionary
authority EPA may have in weighing requests for additional state remediations,
what new litigation the ARCO case prompts over this federal-state relation, and
what the federal courts do with preemption issues the Supreme Court left open.
A member of the
Association’s Environmental Law Section and frequent contributor to REBA News,
Luke Legere is a partner with McGregor & Legere,
P.C. He helps clients with a broad range of
environmental, land use, and real estate issues including coastal and inland
wetlands and waterways, zoning, subdivision, development agreements, conservation
restrictions, state and local enforcement actions, stormwater, solid waste,
hazardous waste, air pollution, site remediation, regulatory takings,
affordable housing, and energy facility siting.
Luke can be contacted at llegere@mcgregorlaw.com.
