The Supreme Court held on April 20, 2020, in a broad consensus decision, that landowners affected by a Superfund site can sue under state law for damages to their properties, but those damages may not include the cost to restore the plaintiffs’ properties based on their preferred cleanup remedy if that remedy is not approved by EPA.  This decision has important implications for the scope of potential tort liability facing PRPs at Superfund sites.  

The suit arises out of a Superfund site in Montana currently owned by Atlantic Richfield, a BP America Ltd. subsidiary, where companies began conducting copper concentrating and smelting operations over a century ago that contaminated the water and soil over 300 square miles with arsenic, copper, cadmium, and zinc. This Superfund site was the subject of an equally important 2007 U.S. Supreme Court decision that has influenced Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) cases for almost 15 years. Over the past 35 years, EPA has worked with Atlantic Richfield to implement a cleanup plan for a remediation expected to continue through 2025. In 2008, a group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability, seeking restoration damages, which Montana law requires to be spent on property rehabilitation. The landowners’ proposed plan, however, would exceed measures found necessary to protect human health and the environment by EPA and cost an additional $50–$58 million.

The landowners argued that nothing in CERCLA bars the exercise of state authority to vindicate private property rights; the company and EPA argued that EPA has sole authority to prescribe how a site should be restored under CERCLA, and that CERCLA preempts state court jurisdiction over state law claims for the costs of restoring property to a landowner’s satisfaction.

The case resulted in opinions in which, by an 8-1 majority, the Justices concluded that CERCLA does not preclude the landowners' right to assert state law claims like nuisance and trespass that don't arise under the Act. But a 7-2 majority held that Congress included several tools in the Act to ensure the development of a single, EPA-led cleanup effort rather than tens of thousands of competing individual ones. Therefore, to ameliorate any conflict between the landowners’ restoration plan and EPA’s Superfund cleanup, the landowners must seek approval from EPA for any additional “remedial work” (as that term is specifically defined in CERCLA) on their property for as long as the site is on the Superfund list. 

The decision further clarifies the scope of CERCLA as it relates to longstanding disputes between companies like Atlantic Richfield and private property owners. KMCL attorneys are happy to answer any questions about the effects of this important ruling.