Cleaning Up the Cleanup Rule – Previewing Possible Changes to MTCA Regulations

Gus Winkes*

For the first time in nearly 20 years, the Department of Ecology (Ecology) is undertaking substantial revisions to the Cleanup Rule, which governs contaminated site cleanups under the Model Toxics Control Act (MTCA).[1] This article provides a brief overview of Ecology’s rulemaking process and draft preliminary changes considered to date by the MTCA Stakeholder and Tribal Advisory Group (STAG).[2] Ecology intends to propose rule amendments in the summer of 2021.[3] 

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Atlantic Richfield Co. v. Christian Viewed Through a Tribal Lens

Connie Sue Martin*

On April 20, 2020 the United States Supreme Court issued its decision in Atlantic Richfield Co. v. Christian (ARCO),[1] a case involving landowners who sought to use Montana state law claims to compel Atlantic Richfield to perform a more extensive cleanup than EPA required under CERCLA. Many commentators have written about the case, but little has been said about what ARCO means for CERCLA sites where Indian tribes have interests. Pro tip: neither ARCO nor CERCLA preclude tribes from forcing a more extensive cleanup than EPA has deemed sufficient.

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Regulatory Takings and Substantive Due Process in Washington after Yim I and Yim II

Roger Wynne*

Yim I and Yim II, issued in November 2019, clarified two aspects of constitutional law key to land use disputes in Washington courts. When considering regulatory takings and substantive due process claims, the Washington Supreme Court has always held the Washington Constitution provides no greater protection than the U.S. Constitution, and that a claim under either Constitution should be subject to the same analysis. But for decades the Court applied analyses—to federal and state claims alike—at odds with the federal analyses. Consistent with the Court’s long-standing intent, Yim I and Yim II realigned Washington’s approach with federal law.

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A Message From the Editors

Welcome the ELUL Articles Blog, a newly minted and reformatted version of the ELUL Newsletter from yesteryear. This launch has been a long time coming. We have worked with the WSBA ELUL Executive Committee and section members for two years to move the old newsletter to a new online resource. Several goals animated this change in approach. First, there was a desire for a more nimble and responsive resource for members. This meant seeking a user-friendly, online platform through which we could quickly address newsworthy events affecting ELUL practitioners. By removing formal elements that slowed publication of the previous newsletter, we hope to notify members about significant developments in the law in a timelier manner. Our second aim was to present shorter, easier to digest articles. People do not read the web, they skim it. We want to make information readily accessible and engaging.

Today, we are posting a collection of the initial articles we requested from attorneys as we have attempted to launch this online resource through a series of full-fits and half-starts. It seems inconceivable that we first requested articles in 2018, when we began the transition from a newsletter to an online vehicle. This transition has taken longer than expected, and the delay in posting these articles rests solely with us as editors. Each author provided timely, relevant material, and we thank the authors for their efforts and their patience.

With that being said, we are thrilled to launch this blog with three articles that contain valuable summaries and insights. First, you will find an article written in 2018 about the Washington Supreme Court’s Pope Resources decision, which addresses owner/operator liability under the Model Toxics Control Act. Second, we have included an article discussing the Washington State Court of Appeals decision in the water resources case Crown West v. Ecology, centering on the interpretation and application of the Municipal Water Law. Finally, you’ll find a discussion of the 2019 Knick v. Township of Scott decision from the United States Supreme Court, which centered on whether property owners must exhaust state remedies before pursuing takings claims in federal court.

Although the COVID-19 pandemic has upended our daily routines, it has not prevented new decisions with wide-ranging implications to our legal practices. Developments in environmental and land use law march on. COVID-19 itself has affected how lawyers work, and how land use, environmental cleanup, enforcement, and defense operate. There is plenty about which to keep ELUL members apprised. Again, we thank the initial article writers, and look forward to building this resource moving forward.

If you have an idea for an article concerning a recent development and can discuss it in 800–1000 words, please contact us. In light of recent protests and demonstrations, we would be particularly interested in perspectives on environmental justice and diversity and inclusion in environmental and land use law. In the meantime we will be reaching out to attorneys, policymakers, wonks, law students and professors, and everyone in between to build this new resource. We welcome your thoughts and input, and look forward to crafting a useful tool for your practices.

Knick v. Township of Scott: Holding and Implications

Roger Wynne*

Since 1985, when the U.S. Supreme Court issued Williamson County Regional Planning Commission v. Hamilton Bank,[1] governments had a procedural defense to federal takings claims: if the state provided an adequate procedure for seeking just compensation from a state or local government, the property owner could not claim a violation of the Fifth Amendment’s just-compensation clause until the owner had used the procedure and been denied just compensation.

No longer. On June 21, 2019, the Court overruled that portion of Williamson County in Knick v. Township of Scott.[2] But Knick’s impacts should be modest: removing a procedural defense government attorneys had enjoyed and perhaps channeling more cases into federal courts instead of state courts.

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