Noah Perch-Ahern

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Superfund Case in the U.S. Supreme Court - Unintended Consequences?

In a recent interview with Ellen Gilmer at E&E News, I provided insights about a new case on the Supreme Court docket involving the Anaconda Smelter Stack and surrounding Superfund area in Montana. Overall, the article discussed the potential for unintended consequences if landowners in the long-running dispute over the Superfund cleanup prevail in questioning and ultimately being allowed to sue the EPA over the EPAs approved cleanup measures under federal Superfund law — the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Here were my insights: 

No matter which way the court rules, I'm seeing an outcome where there's a lot of unresolved questions. The case threatens to inject widespread uncertainty into the Superfund process. A win for the Montana landowners, for instance, could spur more litigation from Superfund neighbors.

If the Supreme Court specifically validates this kind of claim, then claimants may be emboldened and encouraged to be more creative with respect to cleanup claims that have some nexus to a Superfund site. But on the flip side, a win for Atlantic Richfield could create its own kind of legal uncertainty.

Even if the justices firmly reject the landowners' attempt to collect restoration money from Atlantic Richfield, other Superfund neighbors could see the case as an invitation to push the boundaries for other types of state law claims.

There are so many different environmental claims, both pursuant to common law and pursuant to statute, and there's going to be a real question at the Supreme Court ... "What other claims might be preempted?" And that's going to open the floodgates for litigation on this issue of CERCLA's preemptive effect.

And though CERCLA is a frequently litigated statute, those particular legal questions haven't arisen often in courts, meaning the outcomes in future cases are hard to predict. The legal uncertainty that could follow either Supreme Court outcome would be a setback for Superfund cleanups in general.