Supreme Court case could affect Michigan hazardous waste cleanups

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What does a clash over an old Montana copper smelter have to do with environmental protection in Michigan?

A lot, potentially.

The U.S. Supreme Court on Tuesday heard oral arguments in a high-stakes environmental case surrounding whether landowners can sue companies to require hazardous waste cleanup beyond what the U.S. Environmental Protection Agency is demanding.

The case is focused on the Anaconda Smelter site in Montana, one of the biggest and oldest Superfund sites in the United States. But it could have major implications for other existing and future Superfund sites around the country.

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The dispute pits Montana landowners against the Atlantic Richfield Co., which bought the enormous copper smelter in 1977 and has spent about $450 million so far on cleanup efforts under EPA’s supervision. The landowners sued the company for damages beyond what EPA had required, but Atlantic Richfield and its attorneys argue that the landowners are barred from undertaking cleanup plans that don’t have EPA’s approval.

Several states earlier this year asking the Supreme Court to preserve states’ role in addressing environmental contamination.

States “have an interest in ensuring that the court’s resolution of this case does not call into question actions taken by states as trustees of their natural resources, as well as ensuring that the appropriate balance of authority between the federal government and the states as independent sovereigns is maintained,” state attorneys general said in a brief filed in October.

Michigan Superfund sites | GAO

Michigan has 65 Superfund sites across the state on the EPA’s National Priorities List, according to the EPA’s website, including H. Brown Co., Inc. in Grand Rapids, Auto Ion Chemicals Inc. in Kalamazoo, Cannelton Industries Inc. in Sault Ste. Marie, G&H Landfill in Utica and  SCA Independent Landfill in Muskegon Heights.

The state has far fewer than some other states. New Jersey, by contrast, has 114 sites on the National Priorities List, California has 97, Pennsylvania has 91 and New York has 85. However, Michigan still has more sites than other big states like Ohio (38), Texas (55) and Florida (53).

But even if the Supreme Court’s decision doesn’t have much impact on the cleanup of existing sites in Michigan, the ruling could be significant in terms of determining how federal environmental laws preempt environmental activities in every state going forward.

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“Where it’s a state-federal dynamic, obviously sometimes EPA may be more aggressive or less aggressive than a particular state,” said Jeff Thaler, an environmental law professor at the University of Maine.

Pat Parenteau, a professor at Vermont Law School and a former official in EPA’s New England regional office, said property owners on Superfund sites have legitimate frustrations in some circumstances. “They didn’t create this situation, they’ve been damaged by it,” he said. “EPA is not necessarily creating a remedy for them; EPA is creating a good-enough remedy.”

EPA | Photo by TexasGOPVote.com, Flickr

Joseph Palmore, an attorney representing Montana property owners in the case before the Supreme Court, warned the justices on Tuesday that Congress never intended to give EPA “vast control forever over private property.”

But Atlantic Richfield’s attorney Lisa Blatt warned the court that the “hundreds of thousands” of landowners on Superfund sites nationwide shouldn’t be allowed to bring lawsuits to implement “piecemeal” hazardous waste cleanups.

Superfund sites contain “extremely hazardous substances” like lead, mercury and plutonium, Blatt said, and the removal and disposal of those substances can imperil entire communities. Those risks should be evaluated by EPA, not juries “on an ad hoc basis.”

Several of the justices suggested that they were looking for a way to preserve states’ involvement while ensuring that landowners aren’t interfering with EPA’s cleanup efforts.

Sonia Sotomayor

“[I]t seems to me,” said Justice Sonia Sotomayor, that if “you own a piece of land and you know the EPA has been fixing it up … you shouldn’t be able to interfere with the EPA’s efforts.”

Justice Elena Kagan said that if she were writing the law, she would say the cleanup authority “all goes to the EPA. … That’s the sensible solution, to have one party that makes all the rules in this.”

But, Kagan added, “I’m not writing the statute.” And the Superfund law “suggests that the states have a significant role in this.”

The justices are expected to issue a ruling in the case, Atlantic Richfield Company v. Gregory A. Christian, by next summer.

Advance Editor Susan J. Demas contributed to this story.