I have previously discussed how nice it must be for Supreme Court justices to reach judicial decisions from on high, without getting their collective hands dirty worrying about the practical consequences of their decisions. The same has always been true with respect to SCOTUS decisions concerning CERCLA, which has seemed far simpler to SCOTUS than to us poor lawyers who have to actually make it work.
Exhibit A for this argument is the latest SCOTUS Superfund decision. The Court today ruled that Superfund does not strip Montana courts of jurisdiction over cases seeking "restoration damages," – which means here the authority to require additional cleanup, above and beyond what EPA has identified as the necessary and appropriate remedy under CERCLA. However, the Court also ruled that the landowners who want to impose this additional remedy are PRPs and must get EPA's approval before they can pursue any specific restoration damages remedy.
I still wish Superfund were as easy as SCOTUS seems to think. Here are my quick reactions to the decision.
First, property owners who don't qualify for the "contiguous property owner" defense are PRPs. That's going to make PRP Groups much more interesting!
Second, the impact on property owners' use of their property could be substantial. The Court deflected those concerns by noting that:
While broad, the Act's definition of remedial action does not reach so far as to cover planting a garden, installing a lawn sprinkler, or digging a sandbox.
Practitioners know that remedies often preclude residential gardens, precisely because they can cause significant exposures. What impact will this case have on those types of decisions?
Most importantly, how will EPA handle this case on remand and any other cases that follow this one? The disputes regarding such "additional" remedies will be fierce. There are arguments in the Montana case that the landowner remedy truly is inconsistent with EPA's remedy. However, there will be some cases where such restoration remedies may not be inconsistent with EPA's remedy, but instead may be purely additive.
The simple answer is that such remedies must not be cost-effective; otherwise EPA would have selected them in the first instance. I suspect that that will be this Administration's default position. However, the world is rarely so black and white and cost-effectiveness is in the eye of the beholder. This issue could get really ugly.
It appears that, once again, Superfund is the gift to lawyers that keeps on giving.
Originally published 21 April, 2020
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