The Washington PostDemocracy Dies in Darkness

Supreme Court seems skeptical that Superfund landowners can seek more extensive cleanup than EPA approves

Montana’s Anaconda valley, where a copper smelter operated for nearly 100 years, has been a Superfund cleanup site since 1983. (Louise Johns for The Washington Post)

The Supreme Court on Tuesday seemed to suggest that the Environmental Protection Agency must make the ultimate decisions on cleaning up toxic waste sites, and that landowners’ attempts to use state courts to get additional compensation from companies requires the agency’s approval.

The court was considering a massive cleanup of arsenic from a 300-square-mile section of Montana where a copper smelter operated for nearly 100 years. The Anaconda valley has been a Superfund cleanup site since 1983, and owner Atlantic Richfield already has spent more than $470 million to remove toxic chemicals from the land.

A tiny town’s struggle with toxic waste reaches the Supreme Court

But nearly 100 homeowners in the area want more work done, and they went to state court in hopes of convincing a jury that the company should pay an additional $50 million to reduce the arsenic level in the ground. The Montana Supreme Court said the suit could proceed.

But the question for the U.S. Supreme Court was whether such a supplemental lawsuit undermines the EPA’s authority to implement a cleanup plan it deems appropriate for all parties.

The landowners want “to implement their own piecemeal hazardous waste cleanups. The answer should be no,” said Washington lawyer Lisa S. Blatt, representing Atlantic Richfield.

Federal law “entrusts EPA to protect human health and the environment by developing a remedial plan that protects the whole community,” Blatt added.

The problem for the company, several justices noted, is that the law leaves open the possibility of state actions.

“Look, if I were writing this statute, I would say it all goes to the EPA” because it is “the sensible solution to have one party that makes all the rules in this,” said Justice Elena Kagan.

But the law Congress passed suggests otherwise, Kagan said, in particular that “states get to impose additional liability or requirements with respect to the release of hazardous substances.”

That’s true so long as they don’t conflict with the EPA plan, Blatt said. In this case, the remedial cleanup the residents want Atlantic Richfield to pay for would conflict with the plan EPA has been requiring the company to pursue for decades, she said.

Christopher G. Michel, a Justice Department lawyer, told the court the federal government was siding with Atlantic Richfield because it was concerned about the request of a “distinctive state law remedy under which a jury may authorize a plan to clean up toxic contamination at a Superfund site in a way that conflicts with and in many respects physically destroys the EPA plan.”

Justice Stephen G. Breyer seemed to agree. He was worried about “10,000 juries or 50 states or whatever it is imposing sometimes conflicting duties and leaving it up to hundreds of different judges to decide.”

Washington lawyer Joseph R. Palmore, representing the homeowners, said there was nothing revolutionary about his clients pursuing their interests in state court.

“Montana, like many other states, has made the judgment that one who puts toxic materials on another person’s property is liable for trespass and nuisance and that a measure of recovery is the cost of removal,” Palmore said.

Nothing in the federal law establishing the program “bars that core exercise of state authority to vindicate private property rights.”

Chief Justice John G. Roberts Jr. seemed sympathetic to the EPA’s position that “we want to be the ones to decide what to do, rather than the particular landowners there, because we have a broader perspective affecting the whole site, rather than individual sites where the people may reasonably want something to be done but still may be inconsistent with EPA’s plan.”

Palmore replied that “the vast majority of my clients have had zero work done on their land. And if you put all their land together, the work has been done on only 5 percent, okay? So, on 95 percent of the land, literally nothing has been done. So there’s no undoing there.”

But Roberts said that may be because the EPA has decided that disturbing the land would cause more problems, such as releasing arsenic into the air or to nearby streams.

“I mean, yes, you want to just do things on your land, but you can’t overlook the fact that that is going to have harmful effects on everybody else around you,” he said.

Several justices floated the possibility that a compromise might be that landowners could seek greater compensation from polluting companies only if their plans for using the money received EPA approval.

The case is Atlantic Richfield v. Christian.