Montana environmental and property rights groups are weighing in on an upcoming U.S. Supreme Court case involving the upper Clark Fork River Superfund site, and the outcome could have ramifications for other contaminated areas.
Attorneys for the Clark Fork Coalition and the Montana Environmental Information Center want the high court to allow residential property owners around Anaconda to sue under state law to force Atlantic Richfield Co. to decontaminate their property to a higher standard than that required by the U.S. Environmental Protection Agency.
In 1983, the EPA designated 300 square miles around the Anaconda copper smelter as part of the upper Clark Fork Superfund site, where Arco must take action to decrease the level of arsenic in the soil to 250 parts per million. The site is the nation’s largest such cleanup area, extending 100 miles downstream to the former Milltown Reservoir.
But the EPA’s cleanup order didn’t go far enough for 98 residents of Opportunity and Crackerville, where the arsenic concentration in some yards was slightly below 250 ppm. After consulting with health experts, they sued Arco in 2008 under Montana law, asking that the company clean their yards so less than 25 ppm arsenic remains in the top 2 feet of soil.
Montana courts are still considering the case after the Montana Supreme Court (in December 2017) ruled the law dealing with Superfund sites – the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, or CERCLA – did not prevent landowners from suing for other damages under the Montana Constitution, which grants the right to a “clean and healthful environment.”
Basically, the Montana Supreme Court said the landowners can have their day in court, explained Clark Fork Coalition attorney Andrew Gorder. But the justices didn’t weigh in on whether the landowners were right.
The state’s high court sent the case back to the district judge for a ruling on whether the landowners could prove whether the need for further remediation exists.
That has yet to be decided, which makes it unusual for the U.S. Supreme Court to be taking the case up now.
But Arco asked the U.S. Supreme Court to overrule the Montana Supreme Court on whether the landowners’ claims were a challenge of the EPA’s final decision – challenges aren’t allowed – and whether Superfund decisions should be the final word.
Arco says it’s already spent $470 million implementing the EPA’s orders, and work is slated to continue until 2025.
When the Supreme Court agreed this spring to hear the case, some were surprised. Even the EPA filed a brief saying the case could be moot if the district court rules against the landowners.
The landowners say they aren’t challenging the EPA’s decision. They’re asking for something more, as allowed by state law. They argue CERCLA has a “savings clause,” which recognizes states’ rights by allowing a state to impose additional liability beyond that required by the EPA.
MEIC attorney Derf Johnson said Montana was one of the few states where landowners have a solid basis for demanding more decontamination, thanks to its constitution. In fact, in a 2007 case involving the Sunburst School District, the Montana Supreme Court ruled that the cost of remediation wasn’t limited by the cost of the property.
“The polluters argue that Congress has prevented states from being able to create additional supplementary cleanup plans. In Montana, we have a pretty unique situation, in which we have the right to a clean and healthful environment,” Johnson said. “The polluters are not excited about that possibility because it could amount to additional and substantial claims for damages.”
In an example of strange bedfellows, the Bozeman-based Property and Environmental Research Center has joined the two environmental organizations in siding with the Anaconda area residents. Often, the Property and Environmental Research Center opposes environmental initiatives, but in this case, they’re defending private property rights.
“Well-defined and secure property rights play a central role in protecting landowners from harmful pollution and force polluters to be accountable for the costs they impose on others’” said PERC executive director Brian Yablonski in a statement. “Congress was clear that federal law should not supplant these fundamental rights, but rather it should supplement the key role they play in addressing and discouraging pollution.”
Arco supporters claim that a win for the landowners could result in a flood of additional claims for cleanup from property owners in Superfund areas across the country.
The U.S. Chamber of Commerce warned that a win for the landowners would upset the “relative certainty” companies have about cleanup liability for Superfund sites.
As a result, Arco supporters include a raft of companies and organizations from the extractive industry: the Treasure State Resources Association of Montana, Montana Mining Association, Montana Petroleum Association, The Montana Chamber of Commerce, Chamber of Commerce of The United States of America, National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, National Mining Association, American Petroleum Institute, Superfund Settlements Project and The Washington Legal Foundation.
Gorder said the outcome depends on how the Supreme Court justices word their ruling. If they rule against the landowners, the district court case will likely go away. But if the Montana Supreme Court is upheld, that doesn’t mean the floodgates will necessarily open.
Other property owners in other Superfund sites could have tried for more damages before this. That option was always available, so this doesn’t suddenly change things. This is just the first time a few citizens have rallied to push the issue, Gorder said.
“We’re a landowner in the upper Clark Fork and have owned property that underwent remediation. So we have brought that to the table when we chose to support the landowners,” Gorder said. “The issue is simple: Montanans are entitled to use every tool available, whether under state law or federal law, to clean up their contaminated properties. Superfund is an extremely important tool, but it has its limitations.”
The Supreme Court will hear the case on Dec. 5, but the ruling is unlikely to come down for several months.
Contact reporter Laura Lundquist at email@example.com.