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.

But first, some background. 

The Anaconda Smelter, originally constructed by the Anaconda Copper Mining Company and then purchased by Atlantic Richfield in 1977, processed copper ore for nearly 100 years before shutting down in 1980. Since September 1983, when the 300 square mile site was placed on the Superfund National Priorities List (NPL), EPA has managed an extensive cleanup of this area: remediation of more than 800 residential and commercial properties; removing 10 million cubic yards of mine tailings; capping in place more than 500 million cubic yards of waste over 5,000 acres; and reclaiming more than 12,500 acres of land.[2] 

Two communities, Anaconda and Opportunity, lie within the site footprint. Residents of Opportunity contended that the remedy approved by EPA is inadequate because it does not require remediation of their residential yards unless a yard has concentrations of arsenic greater than 250 parts per million (ppm). Background levels are 15 ppm. When concentrations required that a yard be excavated, only the top one foot of soils must be excavated.[3] 

In 2008, 98 landowners sued ARCO in Montana state court. Asserting statutory and common law claims, the landowners seek to compel costs of removal of all soils with arsenic concentrations in excess of 15 ppm, to a depth of two feet, and the installation of a capture and treat shallow groundwater system. EPA had rejected these measures as too costly and unnecessary for protecting human health and the environment.

The trial court granted summary judgment to the land­owners on the issue of whether CERCLA barred their restoration damages claim. The Montana Supreme Court affirmed. On appeal, the United States Supreme Court considered two issues:  whether CERCLA strips the Montana state courts of jurisdiction over the landowners’ claim for restoration damages and, if not, whether CERCLA requires the land­owners to seek EPA approval for their restoration plan.

On the first issue, the Supreme Court held that while CERCLA § 113[4] deprives state courts of jurisdiction to hear CERCLA cases, it does not bar state courts from exercising jurisdiction over claims brought under other sources of law, and does not bar the landowners’ state law claims in Montana state courts. Section 113 is intended to insulate cleanup plans from collateral attack by providing federal district courts with “exclusive original jurisdiction over all contro­versies arising under” CERCLA, and then stripping such courts of jurisdiction “to review any challenges to removal or remedial action,” except in five limited circumstances.[5] Common law claims for money damages such as nuisance and trespass, untethered to restoration, are not preempted by CERCLA.[6] 

On the second issue, the Supreme Court held that CERCLA § 122(e)(6)[7] requires the land­owners to seek EPA approval for their restoration plan, because they are potentially responsible parties (PRPs). The landowners, who are current owners of land where a hazardous substance has come to be located, are PRPs under CERCLA § 107(a)(1).[8] “[E]ven parties not responsible for contamination may fall within the broad definitions of PRPs in §§ 107(a)(1)–(4).”[9]  That includes “innocent’ . . . landowner[s] whose land has been contaminated by another,” who would be shielded from liability by the Act’s “innocent land­owner” or “third party” defenses under CERCLA § 107(b)(3).[10]  

Once EPA or a PRP commences a remedial investigation and feasibility study to assess the contamination and evaluate cleanup options, “no potentially responsible party may undertake any remedial ac­tion” at the site without EPA approval.[11] For the ARCO plaintiffs seeking modified remedial action, EPA approval remains unlikely, because the agency already rejected the remedy they continue to seek.

It is not unusual for landowners impacted by the release of hazardous substances at a Superfund site to assert that EPA’s remedy does not go far enough. ARCO tells us that there are only limited options available to those landowners once EPA has selected the remedy. Unless the impacted landowner is an Indian tribe.

EPA’s approval of a remedy that a tribe does not believe is sufficiently protective does not prevent further remedial action by that tribe. An Indian tribe is not barred from performing a remedy at a Superfund site without the approval of the EPA because an Indian tribe is not a “person” under CERCLA and therefore cannot be a PRP.

Under the plain language of CERCLA, liability is imposed on categories of “persons.”[12]  A “person” is “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” An Indian tribe is not a “person.”  “Indian tribe” is separately defined as “any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village but not including any Alaska Native regional or village corporation, which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”[13]

Because an Indian tribe is not a “person” under CERCLA, it cannot be a PRP.[14] For that reason, a tribe is not subject to the limitations of CERCLA § 122(e)(6) and would not require the permission of EPA to perform any remedial action at a Superfund site where remedial activities are already under way – even a remedial action that is more comprehensive than the one that EPA selected. Cost recovery would then be available to the tribe, so long as the costs were not inconsistent with the national contingency plan.[15]

*Connie Sue Martin is an environmental attorney in Schwabe Williamson & Wyatt’s Seattle office and leads the firm’s Native American and Alaska Native practice.  She helps Indian tribes, ports, companies of all sizes and individuals address environmental contamination and restore injured natural resources. On November 17, 2020, she will present ARCO v. Christian issues at the Tribal Natural Resource Damages Assessments day-long law seminar. Check out for further details.

[1] Atlantic Richfield Co. v. Christian, 590 U.S. ___, 140 S. Ct. 1335, 206 L.Ed.2d 516 (2020) [ARCO v. Christian].

[2] See ARCO v. Christian 140 S. Ct. 1335, 1342–1343, 1347 206 L.Ed.2d 516, 526–527, 530 (2020).

[3] ARCO v. Christian, 140 S. Ct. 1335, 1347–1348, 206 L.Ed.2d 516, 531–532 (2020).

[4] 42 U.S.C. § 9613(b).

[5] 42 U.S.C. § 9613(h).

[6] 140 S. Ct. 1335, 1349, 206 L.Ed.2d 516, 533 (2020).

[7] 42 U.S.C. § 9622(e)(6).

[8] 42 U.S.C. § 9607(a)(1).

[9] ARCO v. Christian, 140 S. Ct. 1335, 1352, 206 L.Ed.2d 516, 537 (2020), quoting United States v. Atlantic Research Corp., 551 U. S. 128, 136, 127 S. Ct. 2331, 168 L. Ed. 2d 28 (2007).

[10] 42 U.S.C. § 9607(b)(3).

[11] 42 U.S.C. § 9622(e)(6).

[12] 42 U.S.C. § 9601(21).

[13] 42 U.S.C. § 9601(36).

[14] Pakootas v. Teck Cominco Metals, Ltd., 632 F. Supp. 2d 1029, 1032 (E.D. Wash. 2009).

[15] 42 U.S.C. § 9607(a)

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.

Continue reading “Regulatory Takings and Substantive Due Process in Washington after Yim I and Yim II”

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.

Continue reading “Knick v. Township of Scott: Holding and Implications”

The Court of Appeals Takes on the Relinquishment Exemption for Municipal Water Rights

David Stearns*

Originally Submitted Fall 2019

In Crown West Realty v. Department of Ecology,[1] a case watched closely by municipal water rights holders looking for certainty in their water rights portfolios, Division 3 of the Court of Appeals engaged for the first time with the definition of “municipal water supply purposes” in the statutory relinquishment exemption for rights claimed for such uses. The Court held that water used for a hotel did not qualify for the exemption. While the decision answers one set of questions, it raises a host of new ones that will give the courts, Ecology, and municipal water rights holders plenty to grapple with in the years to come. Unfortunately, the Washington State Supreme Court passed up an opportunity to iron out some of the wrinkles in Washington water law that Crown West is sure to leave for others to sort out. Continue reading “The Court of Appeals Takes on the Relinquishment Exemption for Municipal Water Rights”