Attorney General Becerra Files Amicus Brief in the U.S. Supreme Court Supporting Landowners’ Right to Hold Polluters Accountable Under State Law

Tuesday, October 22, 2019
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SACRAMENTO – California Attorney General Xavier Becerra, as part of a coalition of 15 attorneys general, today filed an amicus brief with the U.S. Supreme Court in Atlantic Richfield Co. (ARCO) v. Christian, et. al., in support of a Montana Supreme Court decision allowing landowners to seek restoration damages from ARCO. ARCO currently owns and is responsible for a hazardous waste site that contaminated the landowners’ property.  In the brief, the state coalition argues that the Montana Supreme Court was correct in its ruling that private parties may require additional cleanup and restoration of property under state law, beyond what is required by federal law.

“We stand with these property owners seeking to restore their properties damaged by harmful pollution and toxic contamination,” said Attorney General Becerra. “It is essential that the Supreme Court affirm that states have the power to protect our people and natural resources under state law. States play an important role in safeguarding our communities from pollution, and there is nothing in the federal law cited in this case which should prevent us from doing so.”  

The properties in question are in the 300-square-mile Anaconda Company Smelter site located near Butte, Montana, at and near the location of the former Anaconda Copper Mining Company ore processing facilities. In 1983, the U.S. Environmental Protection Agency (EPA), under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA), declared the site a “Superfund” site and required ARCO to clean up some of the damage caused to the area by contamination from hazardous substances such as arsenic and other toxic metals. However, under a state law cause of action, the landowners are now seeking to hold ARCO liable for the amount necessary to restore the property and its natural resources to pre-contamination levels, thereby repairing more of the damage than required by the EPA order. ARCO argues, in part, that CERCLA preempts Montana’s restoration damages remedy and that ARCO is not required to restore their property beyond what EPA required it to do. The Montana Supreme Court rejected that argument, holding that CERCLA did not preempt the remedy because it did not interfere with EPA’s efforts at the site, but rather would fund additional cleanup in accordance with state law.

In the brief, the states urge the U.S. Supreme Court to affirm that ruling. They explain why Montana’s restoration damages law does not conflict with CERCLA’s purposes or objectives, and why a contrary holding would improperly intrude on states’ rights. The states also note that Congress specifically considered and rejected efforts to preempt state law under CERCLA, opting instead to preserve states’ important and traditional role in addressing and remediating environmental disasters.

Attorney General Becerra filed the brief as part of a coalition including the attorneys general of Virginia, Connecticut, Delaware, Hawaii, Maine, Maryland, Mississippi, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin.

A copy of the brief can be found here.

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