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Fifteen State AGs Back Landowners in SCOTUS Superfund Case

Oct. 23, 2019, 3:02 PM

State attorneys general, national conservative groups, and local environmental advocates are throwing their support behind a group of Montana landowners in a Superfund case before the Supreme Court.

The case pits the landowners’ state rights to a clean environment against federal cleanup law. The case could have far-reaching implications for companies responsible for cleaning up Superfund sites, potentially allowing dissatisfied parties to sue to fund cleanup outside the Superfund process.

Virginia Attorney General Mark R. Herring (D) led a coalition of 15 states in support of the Montana landowners. They filed their amicus brief Oct. 22.

About 100 people who own land in Opportunity, Mont., say Atlantic Richfield Co. is responsible for cleaning up remaining smelter waste, including lead and arsenic, deposited on their properties through decades of copper smelting operations. Their properties are part of the Anaconda Co. Smelter Superfund site.

The states’ attorneys general pushed back on Atlantic Richfield’s argument that Superfund law preempts the landowners from seeking remedies in state court, outside of the Environmental Protection Agency’s cleanup process. The Superfund law is intended to preserve states’ rights, they argued.

“It is difficult to conjure more traditional areas of state concern than the regulation of real property and the protection of natural resources within a State’s borders,” the brief said.

Democratic attorneys general from California, Connecticut, Delaware, Hawaii, Maine, Maryland, Mississippi, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin signed on to the brief.

“Virginia and our fellow states have the right to protect our people and our land, air, and water from pollution and contamination, and we have the right to hold polluters accountable when they violate our laws, regulations, and protections,” Herring said in a statement. “If this case is successful, it could eviscerate our ability to protect our environment and natural resources, which is why my team and I took the lead on this important brief.”

Oral Arguments in December

Though Montana’s high court allowed the landowners’ case to proceed, Atlantic Richfield asked the U.S. Supreme Court in 2018 to take a closer look. The Supreme Court has scheduled oral arguments for Dec. 3.

The Montana-based Clark Fork Coalition and Property and Environment Research Center, as well as the Montana Environmental Information Center, Pacific Legal Foundation, and Public Citizen also filed briefs supporting the landowners.

If federal Superfund law were allowed to preempt state law, the Pacific Legal Foundation argued, the result would be an erosion of constitutionally-protected property rights, and limits on the abilities of states and private property owners to secure a cleaner environment.

State and national industry associations—including the U.S. Chamber of Commerce, Treasure State Resources Association of Montana, National Association of Manufacturers, and the American Petroleum Institute—previously filed briefs in support of Atlantic Richfield. The company argued the Montana Supreme Court doesn’t have jurisdiction over the issue, and that landowners’ request for cleanup challenges the EPA’s chosen remedy for the site.

Atlantic Richfield and the U.S. EPA have spent more than three decades cleaning up the Anaconda Smelter Superfund site. But landowners there say harmful amounts of heavy metals still remain on their properties, even after the EPA’s cleanup.

The amount of lead and arsenic in Anaconda residents’ bodies is about the same as the national average, the Agency for Toxic Substances and Disease Registry said in a report published Oct. 22.

The agency recommended homeowners enroll in the EPA’s ongoing yard soil and attic cleanup programs to proactively reduce their risk of exposure to lead and arsenic.

The EPA expects to complete most of the Anaconda Smelter site’s remediation by 2025.

The case is Atlantic Richfield Co. v. Christian, U.S., No. 17-1498, amicus briefs filed 10/22/19.

To contact the reporters on this story: Sylvia Carignan in Washington at scarignan@bloombergenvironment.com; Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Chuck McCutcheon at cmccutcheon@bloombergenvironment.com