Atl. Richfield Co. v. Christian, No. 17-1498

• Court: United States Supreme Court
• Writing for the Court: Chief Justice ROBERTS delivered the opinion of the Court.
• Citation: 206 L.Ed.2d 516,140 S.Ct. 1335
• Parties: ATLANTIC RICHFIELD COMPANY, Petitioner v. Gregory A. CHRISTIAN, et al.
• Docket Number: No. 17-1498
• Decision Date: 20 April 2020

140 S.Ct. 1335
206 L.Ed.2d 516

ATLANTIC RICHFIELD COMPANY, Petitioner
v.
Gregory A. CHRISTIAN, et al.

No. 17-1498

Supreme Court of the United States.

Argued December 3, 2019
Decided April 20, 2020

Lisa S. Blatt, Washington, DC, for the petitioner.

Christopher G. Michel, for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Joseph R. Palmore, Washington, D.C., for the respondents.

Robert J. Katerberg, Elisabeth S. Theodore, Stephen K. Wirth, Arnold & Porter, Kaye Scholer LLP, 601 Massachusetts Ave., NW, Washington, DC, Jonathan W. Rauchway, Shannon W. Stevenson, Davis Graham & Stubbs LLP, 1550 17th St., Suite 500, Denver, CO, Lisa S. Blatt, John S. Williams, Sarah M. Harris, Charles L. McCloud, Meng Jia Yang, Thomas S. Chapman, Williams & Connolly LLP, 725 Twelfth St., NW, Washington, DC, for Petitioner.

Monte D. Beck, Justin P. Stalpes, Beck, Amsden & Stalpes, PLLC, 1946 Stadium Dr., Suite 1, Bozeman, MT, J. David Slovak, Mark M. Kovacich, Ross Johnson, Kovacich Snipes, PC, 21 3rd St. North, Suite 301, Great Falls, MT, Joseph R. Palmore, Deanne E. Maynard, Dustin C. Elliott, Samuel B. Goldstein,^* Morrison & Foerster LLP, 2000 Pennsylvania Ave., N.W., Washington, D.C., James R. Sigel, William F. Tarantino, Morrison & Foerster LLP, 425 Market St., San Francisco, CA 94105, for Respondents.

Chief Justice ROBERTS delivered the opinion of the Court.

140 S.Ct. 1345

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.

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

We consider whether the Act strips the Montana courts of jurisdiction over the landowners’ claim for restoration damages and, if not, whether the Act requires the landowners to seek EPA approval for their restoration plan.

I

A

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 94 Stat. 2767, as amended, 42 U.S.C. § 9601 et seq. , also known as the Superfund statute, to address "the serious environmental and health risks posed by industrial pollution," Burlington N. & S. F. R. Co. v. United States , 556 U.S. 599, 602, 129 S.Ct. 1870, 173 L.Ed.2d 812 (2009). The Act seeks "to promote the timely cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts [are] borne by those responsible for the contamination." CTS Corp. v. Waldburger , 573 U.S. 1, 4, 134 S.Ct. 2175, 189 L.Ed.2d 62 (2014) (internal quotation marks omitted).

140 S.Ct. 1346

The Act directs EPA to compile and annually revise a prioritized list of contaminated sites for cleanup, commonly known as Superfund sites. 42 U.S.C. § 9605.¹ EPA may clean those sites itself or compel responsible parties to perform the cleanup. §§ 9604, 9606, 9615. If the Government performs the cleanup, it may recover its costs from responsible parties. § 9607(a)(4)(A). Responsible parties are jointly and severally liable for the full cost of the cleanup, but may seek contribution from other responsible parties. § 9613(f )(1).

Prior to selecting a cleanup plan, EPA conducts (or orders a private party to conduct) a remedial investigation and feasibility study to assess the contamination and evaluate cleanup options. 40 C.F.R. § 300.430 (2019). Section 122(e)(6) of the Act provides that, once the study begins, "no potentially responsible party may undertake any remedial action" at the site without EPA approval. 42 U.S.C. § 9622(e)(6).

The Act prescribes extensive public consultation while a cleanup plan is being developed. It requires an opportunity for public notice and comment on proposed cleanup plans. §§ 9613(k), 9617. It requires "substantial and meaningful involvement by each State in initiation, development, and selection" of cleanup actions in that State. § 9621(f )(1). And, in most instances, it requires that remedial action comply with "legally applicable or relevant and appropriate" requirements of state environmental law. § 9621(d)(2)(A).

But once a plan is selected, the time for debate ends and the time for action begins. To insulate cleanup plans from collateral attack, § 113(b) of the Act provides federal district courts with "exclusive original jurisdiction over all controversies arising under" the Act, and § 113(h) then strips such courts of jurisdiction "to review any challenges to removal or remedial action," except in five limited circumstances. §§ 9613(b), (h).

B

Between 1884 and 1902, the Anaconda Copper Mining Company built three copper smelters 26 miles west of the mining town of Butte, Montana. The largest one, the Washoe Smelter, featured a 585-foot smoke stack, taller than the Washington Monument. The structure still towers over the area today, as part of the Anaconda Smoke Stack State Park. Together, the three smelters refined tens of millions of pounds of copper ore mined in Butte, the "Richest Hill on Earth," to feed burgeoning demand for telephone wires and power lines. M. Malone, The Battle for Butte 34 (1981). "It was hot. It was dirty. It was dangerous. But it was a job for thousands." Dunlap, A Dangerous Job That Gave Life to a Town: A Look Back at the Anaconda Smelter, Montana Standard (Aug. 8, 2018). From 1912 to 1973, Anaconda Company payrolls totaled over $2.5 billion, compensating around three-quarters of Montana's work force.

Bust followed boom. By the 1970s, the falling price of copper, an ongoing energy crisis, and the nationalization of Anaconda's copper mines in Chile and Mexico squeezed Anaconda. But what others saw as an ailing relic, Atlantic Richfield saw as a turnaround opportunity, purchasing the Anaconda Company for the discount price of $700 million. Unfortunately, Atlantic Richfield was unable to revive Anaconda's

140 S.Ct. 1347

fortunes. By 1980 Atlantic Richfield had closed the facility for good, and by 1984 Fortune had dubbed the purchase one of the "Decade's Worst Mergers." Fisher, The Decade's Worst Mergers, Fortune, Apr. 30, 1984, p. 262.

Atlantic Richfield's troubles were just beginning. After Congress passed the Superfund statute in 1980, Atlantic Richfield faced strict and retroactive liability for the many tons of arsenic and lead that Anaconda had spewed across the area over the previous century. In 1983, EPA designated an area of more than 300 square miles around the smelters as one of the inaugural Superfund sites. 48 Fed. Reg. 40667. In the 35 years since, EPA has managed an extensive cleanup at the site, working with Atlantic Richfield to remediate more than 800 residential and commercial properties; remove 10 million cubic yards of tailings, mine waste, and contaminated soil; cap in place 500 million cubic yards of waste over 5,000 acres; and reclaim 12,500 acres of land. EPA, Superfund Priority "Anaconda" 9 (Apr. 2018), https://semspub.epa.gov/work/08/100003986.pdf. To date, Atlantic Richfield estimates that it has spent roughly $450 million implementing EPA's orders.

More work remains. As of 2015, EPA's plan anticipated cleanup of more than 1,000 additional residential yards, revegetation of 7,000 acres of uplands, removal of several waste areas, and closure of contaminated stream banks and railroad beds. Brief for United States as Amicus Curiae 7–8 (citing EPA, Fifth Five-Year Review Report: Anaconda Smelter Superfund Site, Anaconda-Deer Lodge County, Montana, Table 10–1 (Sept. 25, 2015), https://semspub.epa.gov/work/08/1549381.pdf ). EPA projects that remedial work will continue through 2025. Id. , Table 10–7; Tr. of Oral Arg. 30.

C

In 2008, a group of 98 owners of property within the Superfund site filed this lawsuit against Atlantic Richfield in Montana state court, asserting trespass, nuisance, and strict liability claims under state common law. The landowners sought restoration damages, among other forms of relief.

Under Montana law, property damages are generally measured by the "difference between the value of the property before and after the injury, or the diminution in value." Sunburst School Dist. No. 2 v. Texaco, Inc. , 338 Mont. 259, 269, 165 P.3d 1079, 1086 (2007). But "when the damaged property serves as a private residence and the plaintiff has an interest in having the property restored, diminution in value will not return the plaintiff to the same position as before the tort." Id. , at 270, 165 P.3d at 1087. In that circumstance, the plaintiff may seek restoration damages, even if they exceed the property's diminution in value. See ibid. ; Restatement (Second) of Torts § 929, and Comment b (1977).

To collect restoration damages,...