Justices Rule Montana Homeowners Can Pursue State Law Claims Against Superfund Site

April 20, 2020 by Dan McCue
One of several depictions of past and current Supreme Court justices on the main floor of the u.S. Supreme Court building. (Photo by Dan McCue)

WASHINGTON – Montana homeowners can sue Atlantic Richfield Co. under state law to get additional cleanup of arsenic left over from years of copper smelting, however, writing for the majority on a divided court, Chief Justice John Roberts said before the homeowners can proceed, they must seek Environmental Protection Agency approval of their desired remediation plan.

For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and lead.

Over the past 35 years, the Environmental Protection Agency has worked with the current owner of the smelter, Atlantic Richfield Company, to implement a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

EPA projects that the cleanup will continue through 2025.

But in 2008, a group of 98 landowners sued Atlantic Richfield in Montana state court for common law nuisance, trespass, and strict liability.

Among other remedies, the landowners sought restoration damages, which under Montana law must be spent on rehabilitation of the property.

However, the landowners’ proposed restoration plan includes measures beyond those the agency found necessary to protect human health and the environment.

In 2017, the Montana Supreme Court ruled the homeowners could proceed in state court.

Chief Justice John Roberts agreed with that ruling in part and disagreed in part, saying it failed to take into account the homeowners’ need to seek EPA approval for additional cleanup.

“That approval process, if pursued, could ameliorate any conflict between the landowners’ restoration plan and EPA’s Superfund cleanup, just as Congress envisioned,” Roberts wrote. “In the absence of EPA approval of the current restoration plan, we have no occasion to entertain Atlantic Richfield’s claim that the Act otherwise preempts the plan.”

Roberts remanded the case back to the Montana Supreme Court for further proceedings consistent with his opinion.

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