A new case on the Supreme Court’s docket, Atlantic Richfield v. Christian, has experts on edge about potential consequences for environmental cleanups across the country.
Ellen M. Gilmer, E&E News reporter
Greenwire: Thursday, June 20, 2019
Justices last week agreed to review Atlantic Richfield v. Christian, a long-running dispute involving an old copper production area in Montana. The 300-square-mile Anaconda Co. Smelter site is one of the oldest and largest in the Superfund system.
Some 9,000 residents live within the Superfund site’s borders, many atop arsenic-laced soil and contaminated groundwater. With an EPA-approved cleanup process dragging on, dozens of landowners went to state court in 2008 to force smelter owner Atlantic Richfield Co. to do more for them.
State courts allowed the case to proceed, despite opposition from Atlantic Richfield, which then appealed the decision to the nation’s highest court.
Now the Supreme Court will determine whether the landowners can pursue a key legal claim that Atlantic Richfield must fund restoration work that goes beyond what EPA approved for the area (Greenwire, June 10).
The dispute is causing heartburn among Superfund experts, who caution the case could have unintended consequences.
“In a way, allowing these landowners to be able to question what EPA does here seems like a good environmental thing, but if we’re not careful, it could be open season on litigating EPA remedies in advance,” Lewis & Clark Law School professor Craig Johnston said.
“That certainly is not where we want to be at the end of the day.”
Atlantic Richfield and EPA likewise warn of legal chaos if the landowners prevail. They note that the federal Superfund law — the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA — was intended to give EPA the final say on remediation plans for contaminated sites.
“The [state court] decision also invites thousands more landowners across the State to sue to supplant EPA’s remedy or to implement remedial efforts themselves without EPA’s authorization,” lawyers for Atlantic Richfield told the Supreme Court.
“And the decision provides a road map for other states to bless similar theories of recovery that run roughshod over CERCLA’s calibrated scheme,” they said.
