Supreme Court decision in Atlantic Richfield Co. case leaves open questions

April 20, 2020 | By JONATHAN WOOD

In Atlantic Richfield Co. v. Christian, landowners seek to enforce their property rights against a neighboring polluter that has contaminated their properties with toxic metals, arsenic, and lead.

The Supreme Court agreed to hear the case to resolve whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as Superfund) “preempts” the rights of landowners to demand a more thorough cleanup than that required under federal law. Unfortunately, the Supreme Court declined to answer that question today, holding instead that anyone who owns land within a Superfund site is a “potentially responsible party,” even if they played no role in the pollution, have never been treated as responsible, and the time for identifying potentially responsible parties has long passed. Because of this status, the Court held, the landowners’ case cannot proceed until they seek the EPA’s permission to perform additional work.

In dissent, Justice Gorsuch, joined by Justice Thomas, explained that Superfund does not require innocent landowners to be deemed potentially responsible parties and erects no obstacles to them defending their property rights under state law. Adopting arguments that PLF and PERC advocated in an amicus brief, the dissent explains that the majority’s opinion leaves several significant constitutional questions for another day.

Those questions include what enumerated power authorizes the EPA to “regulate virtually each shovelful of dirt homeowners may dig on their own properties” and, if it denies landowners’ rights to pursue a cleanup, whether the Takings Clause requires the federal government to pay just compensation. Ultimately, the dissent explains, by imposing a federal bureaucratic process on property rights, the majority “transforms [Superfund] from a law that supplements state environmental restoration efforts into one that prohibits them. Along the way, it strips away ancient common law rights from innocent landowners and forces them to suffer toxic waste in their backyards, playgrounds, and farms. Respectfully, that is not what the law was written to do; that is what it was written to prevent.”

The case’s long-run effects are uncertain. Because the Court declined to decide the central issue, most of the questions raised by the dissent remain for a later day. Indeed, if the EPA ultimately denies these landowners’ right to have their properties restored, the dissent charts a blueprint for the next case challenging that decision on statutory and constitutional grounds.