The Supreme Court Opens a Door in ARCO v. Christian, Part One

Date01 March 2021
by Charles Openchowski
Charles Openchowski is a Senior Attorney in the Off‌ice of General
Counsel at the U.S. Environmental Protection Agency.
Author’s Note: This Article is not a product of the U.S.
government or the U.S. Environmental Protection Agency
(EPA). The author is not doing this work in any governmen-
tal capacity. The views expressed are his own and do not
necessarily represent those of the United States or EPA.
In its Atlantic Richf‌ield Co. v. Christian opinion, the U.S. Supreme Court addressed the timing of judic ial review
in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as well as land-
owners’ status as potentially responsible parties for property within the boundaries of a Superfund site. The
Court, however, left preemption issues raised by the parties for another day. This Article analyzes the opinion
in light of the site’s long history, and offers insights on how it might affect the federal cleanup program going
forward. The f‌irst part, published here, describes the response actions that have been taken, as well as the
litigation brought by landowners seeking more remediation. The second part, which will appear next issue,
focuses on the role of state law and how it can serve as a platform for enhancing CERCL A cleanups.
Forty years ago, the U.S. Congres s capped o a highly
productive decade of developing major federal envi-
ronmental legislation by enacting the Comprehensive
Environmental Response, Compensation, and Liability
Act of 1980 (CERCLA).¹ e statute complemented the
other federal environmental laws, which are la rgely regu-
latory in nature, by providing the president with broad,
discretionary cleanup authorities to further its primary,
overarching purpose: ensuring protection of human hea lth
and the environment when hazardou s substa nces, pol lut-
ants, or contaminants have been or may be released into
the environment in a manner that may pose an unac-
ceptable risk. e law also created a number of tools to
help achieve that purpose when taking or securing a
response action.
ese include a billion-dollar trust fund that allows the
federal government to act immediately and on its own ini-
tiative to address contaminated sites, a powerful liability
scheme that allows the federal government and others to
1. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.
obtain reimbursement for the cleanup costs they incur,
and administrative and judicial enforcement authorities
that allow the federal government to compel private parties
responsible for contaminated sites to clean them up. Six
years later, to furt her promote the polluter-pays principle,
Congress supplemented the e xisti ng enforcement toolbox
by adding a new section with specic, detailed provisions
governing the federal government’s authority to settle with
private parties in order to secure cleanup.
Recently, the U.S. Supreme Court issued an opinion
that could have a signicant impact on how the CERCLA
program operates. In particu lar, the decision has construed
the scope of the statute’s jurisdiction and preenforcement
review provisions in a way that may allow landowners
and other interested community members to le state-
law claims in state courts as a way to obtain additional
remediation beyond the “oor” provided by a CERCLA
response action.
Part One of this Article traces the cleanup history of
the Anaconda Copper Smelter site in Montana, which was
the subject of the Supreme Court’s decision in Atlantic
Richeld Co. v. Christian.² It then describes the extensive
litigation involving this site since 2008, culminating in
the Court’s April 2020 opinion. Part Two of the Article,
appearing next issue, wi ll examine potential pre emption of
state law in the context of federal environmental law, rst
2. 140 S. Ct. 1335, 50 ELR 20101 (2020).
Copyright © 2021 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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