By Seth Thomas and Bradley Sugarman
Environmental violations fall under the larger category of toxic species and include personal injury and property damage claims due to the release of environmental pollution. Many of these cases include allegations that the defendant – often current or former manufacturers – negligently released hazardous chemicals into the environment, negligent investigation and remedy of these releases and then negligent warning of the plaintiff of potentially serious health and property risks. In many cases, the release of contamination is combated by an official remediation program managed by the state environmental agency or the Federal Environment Agency (EPA). Not surprisingly, defendants often increase their participation in a government clean-up program to defend themselves against negligence and claim that such participation complies with their legal obligations.
But what happens when, as is so often the case, the regulatory cleanup takes years or even decades? Or if the environmental science leading the remediation changes so that concentrations of chemicals that remain in the environment according to regulatory criteria are no longer considered to protect human health? Or when new routes of exposure or completely new contaminants are discovered? This type of problem pervades environmental disputes, and plaintiffs frequently request injunctive relief – by asking the court to order the accused to remove all of their contaminants from the plaintiff's property or neighborhood – a request that goes far beyond what the state or federal environmental agency would require. Can a plaintiff really get this extraordinary relief? The answer is a clear "maybe".
In April 2020, since we were all socially distant, the Supreme Court published its opinion in Atlantic Richfield Co. v Christian, 590 USA ___ (2020), which dealt with this issue. The case affects the Anaconda Smelter site near Butte, Montana. The site's history is intriguing and could go on, but for the limited discussion here, it suffices to say that when the smelter closed in 1980 it had contaminated approximately 300 square kilometers with heavy metals, mostly arsenic. freed from its stacks the size of a Washington Monument. The nationwide Superfund cleanup began in 1983 and is expected to be completed in 2025. The cost is approximately $ 450 million. But even at this price, the EPA has compromised the remediation criteria and allowed Atlantic Richfield (the party doing the remediation) to leave arsenic in residential floors and agricultural fields at concentrations well above the other control criteria. Dozens of property owners have filed a lawsuit in the Montana state court, seeking legal remedies that Atlantic Richfield should be ordered to pay the cost of investigating and “restoring” their property, a cost estimated at $ 50 to $ 58 million.
The majority of the court, in a statement written by Chief Justice John Roberts, concluded that the plaintiffs, since they owned contaminated property within the site's footprint, were "potentially responsible parties" within the framework of the comprehensive environmental impact, compensation and liability As such, the law (“CERCLA”) had to obtain EPA approval before requesting “recovery damage” that focused on expanding the EPA-approved CERCLA agent. The court appears to have been influenced by the petitioners' argument that a different approach "would unduly affect the role of the EPA in making the final decision on site redevelopment and protecting the communities concerned from residual risks". The dissidents (judges Clarence Thomas and Neil Gorsuch) claimed that the majority holding "deprived the old innocent landowners of common law rights to force them to suffer toxic waste in their backyards, playgrounds, and farms."
This brings us back to the question raised above in connection with a state-controlled refurbishment: can plaintiffs claim "restoration" damages to remediate their property beyond the requirements of the state environmental agency? Can a state court order a defendant who is environmentally harmful to take legal action that goes beyond the requirements of the state environmental agency? The recent Supreme Court ruling suggests that a state regulator is the master of the remediation domain and that plaintiffs must obtain their consent before making claims that ask the court to order further remediation. The issue has not been raised in a state or federal court in Indiana. Only time can tell.
• • Seth Thomas and Bradley Sugarman are lawyers at Bose McKinney & Evans LLP in Indianapolis. The opinions expressed are those of the authors.