Check out the published version in Environmental Law, June 2020, here – Environmental Law June 2020.pdf.
On Monday, April 20, 2020, the U.S. Supreme Court decided Atlantic Richfield Co. v. Christian, 408 P. 3d 515 (2020), a case involving landowners who sought to use state law claims in nuisance, trespass, and strict liability to compel Atlantic Richfield Co. (“Atlantic Richfield”) to conduct a more extensive cleanup than the U.S. Environmental Protection Agency (“EPA”) had required under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). At the state court level, the Montana Supreme Court rejected Atlantic Richfield Co.’s arguments that §113(b) of CERCLA gave federal courts “exclusive original jurisdiction over all controversies arising under [CERCLA],” and that the landowners were “potentially responsible part[ies]” who, under §122(e)(6), were not permitted to undertake any remedial action without EPA approval.
The U.S. Supreme Court affirmed in part and vacated in part the decision of the Montana court. The Court held that §113 did not preclude the Montana state Court’s jurisdiction over the landowners’ claims because the state common law claims did not arise under CERCLA. However, the Court found that as owners of property located within the Superfund Site, despite not receiving notice of settlement negotiations from EPA as required under §122(e)(1), the landowners were PRPs for the Site under §§107(a) and 122(e)(6). Instead, as PRPs under CERCLA §122, the landowners were required to seek EPA approval for any additional remedial activities.
The importance of the opinion for those involved in Superfund sites is twofold: 1) it upholds the state court’s overall jurisdiction in the matter for state law claims; and 2) it permits landowners impacted by Superfund sites the right to seek recovery for their own remediation beyond that required under the Act, subject to EPA approval for the remedial work intended. This ruling opens a pathway for landowners impacted by Superfund sites to use state law remedies to compel more stringent cleanups. Even at sites where EPA has reached a decision and site cleanup has taken place, there now remains opportunity for regulators to effectively set aside cleanup determinations and potentially allow local residents to pursue additional cleanup. In the case discussed here, EPA did not approve of the landowners’ plan because the plan presented environmental risks; EPA could come to a different conclusion in other circumstances or under a different administration.
In sum, this decision creates additional uncertainty in determining when or if liabilities at any Superfund site are ever in fact closed.