The U.S. Supreme Court on Monday stated that it would review a case filed by property owners in Montana state court seeking restoration damages that were beyond the clean-up activities required by the U.S. Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  In the case, Atlantic Richfield Co. v. Christian, Atlantic Richfield (Arco) is seeking to overturn a decision by the Montana Supreme Court, which they claim is pre-empted by federal law and conflicts with the decisions of other courts on CERCLA interpretation.  The federal government also weighed in at the request of the U.S. Supreme Court.  The federal government agreed that the Montana Supreme Court “erred in its analysis,” but argued that the petition should be denied as premature.  Nonetheless, the U.S. Supreme Court granted the petition, which Arco has stated involves “one of the most consequential decisions interpreting CERCLA in years.”

The questions presented in the petition are:  (1) whether a common-law claim for restoration seeking cleanup remedies that conflict with remedies the EPA ordered is a jurisdictionally barred “challenge” to the EPA’s cleanup under 42 U.S.C. § 9613 of CERCLA; (2) whether a landowner at a Superfund site is a “potentially responsible party” that must seek EPA approval under 42 U.S.C. § 9622(e)(6) of CERCLA before engaging in remedial action, even if the EPA has never ordered the landowner to pay for a cleanup; and (3) whether CERCLA pre-empts state common-law claims for restoration that seek cleanup remedies that conflict with EPA-ordered remedies.

We will continue to follow this case and provide updates as they become available.