Supreme Court Hears Superfund Case — Seems To Lean Toward Limiting Polluter’s Liability

An old smelter smokestack looms over Montana’s Anaconda Superfund site. Photo: Louise Johns, The Washington Post

The Supreme Court heard oral argument yesterday in a case brought by a group of Montana landowners who want to force ARCO (which is owned by oil giant BP) to comply with state law and reduce arsenic levels in the soil throughout their community to pre-contamination levels, which would be approximately 10 times lower than the EPA-approved cleanup, according to The Washington Post.  Several news outlets who heard the oral argument reported that the Justices — even the liberal ones — appeared to side with the Company, which argued that the federal Superfund law governs the entire cleanup process and they can’t be forced to do more under state law.  The Court will rule by the end of June.

Why This Matters:  When the EPA cares more about protecting a polluting company and limiting its liability than protecting the innocent victims of that toxic pollution from harm, federal “pre-emption” of state law claims can actually frustrate the intent of the statute — which was to make the polluters pay for the clean up of their toxic contamination.  The law also bars victims from “double recovery” and it gives polluters who step up to their responsibility to clean up a site the benefit of finality and an end to litigation.  But what happens when the EPA’s settlement is too lax and poor communities are burdened with lingering contamination and health problems?  It is unlikely that a rich community would get a raw deal from EPA.  But the country is riddled with poor communities that for a myriad of reasons do not get the same level of protection from our environmental laws/agencies.  It may be the law, but that does not make it right.  

Contamination in Opportunity

This case involves the toxic legacy of arsenic and heavy metal contamination that accrued from 100 years of mining and smelting (from 1884-1980) leaving one of the largest Superfund “complexes” in the country covering a town called Opportunity, Montana near large mining operations in Butte.  The Superfund complex there is huge — according to Newsweek, it covers about 300 square miles and is also home to more than 9,000 people. Under EPA’s cleanup order, ARCO has already spent $450 million on cleanup, and the community believes that $58 million more is needed to make it safe – but the Company counters that additional soil excavation and cleanup would actually risk spreading the buried contamination further.

The Supreme Court Case

The Supreme Court case involved whether to let stand a Montana Supreme Court ruling in favor of the Opportunity Residents that held that the federal Superfund law does not override this state’s constitutionally guaranteed right to a “clean and healthful environment.”  The lawyers for ARCO argued that the community of Opportunity should not be able to use state law to force the company to clean up the site in a way that conflicts with the EPA cleanup plan.  They claim that if a community was allowed to impose its “own piecemeal hazardous waste cleanup” it would undermine EPA’s authority to implement a cleanup plan the agency deems appropriate to protect human health and the environment.  But that begs the question — what if the EPA does not adequately protect human health and the environment?  One of the town residents put it this way to The Post, “We only have one lifetime, and the corporations have forever. We just want our yard to be clean and healthy for our kids.”

To Go Deeper: Click here for an excellent summary of the legal arguments in the case by our pals at SCOTUSblog.

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