CERCLA Litigation

January 21, 2020
Carol F. McCabe, Esq. and Zachary J. Koslap, Esq.
MGKF Special Alert - Federal Forecast 2020

At the end of 2019, the Supreme Court heard oral argument in Atlantic Richfield Company [ARCO] v. Christian, et al. which addressed the question of whether CERCLA prevents individuals from seeking restoration damages under state common-law claims.  The Supreme Court’s decision is expected in 2020 and has the potential to upend implementation of site remediation under CERCLA. 

In this case, ARCO is seeking to overturn a Montana Supreme Court decision which allowed landowners to proceed with their 2008 lawsuit seeking restoration damages from ARCO’s allegedly inadequate cleanup of the Anaconda Smelter Superfund site, asserting state common-law trespass, nuisance, and strict liability theories against ARCO as bases to secure restoration of their nearby properties to a pre-contamination condition.

In its petition to the Supreme Court, ARCO claimed that Section 113 of CERCLA grants exclusive jurisdiction to federal courts over “controversies arising under” CERCLA, making the landowners’ state-court claims jurisdictionally barred.  Additionally, ARCO argued that the landowners are potentially responsible parties under Section 122(e)(6) of CERCLA as the owners of polluted land, which prohibits the landowners from challenging EPA’s remediation of the site.  ARCO also claimed that CERCLA preempts state-law remedies that would work against EPA’s cleanup plan.  In particular, ARCO argued that a state-law obligation to restore the landowners’ property would cause ARCO to violate EPA’s cleanup plan. 

The landowners’ asserted that Section 113 of CERCLA permits state law claims, and cited to legislative history to argue that Congress did not intend for CERCLA to bar claims made in state courts.  The landowners alleged further that the definition of potentially responsible parties under CERCLA extends only to those parties that face actual risk of liability, and that as innocent parties, CERCLA does not contemplate involving them in its allocations of responsibility.  Lastly, the landowners disagreed with ARCO’s assertion that any obligation imposed on ARCO would cause it to violate EPA’s cleanup plan, claiming that the payment of damages does not categorically interfere with EPA’s cleanup plan.