Legal Think Tank Asking Supreme Court To Review EPA Cleanup Case

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Jason Hopkins Immigration and politics reporter
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The Washington Legal Foundation is asking the U.S. Supreme Court to review the Montana Supreme Court’s decision regarding hazardous waste sites — a case that could have major implications for how the EPA conducts cleanup operations around the country.

A court decision in Montana could greatly inhibit how the Environmental Protection Agency cleans waste sites hazardous enough to pose a threat to the environment. Now a D.C.-based legal foundation is calling on that decision to be assessed.

The issue revolves around CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act). CERCLA, first established in 1980, grants the EPA numerous powers when restoring land containing hazardous waste — otherwise known as Superfund sites. To ensure the agency can clean a Superfund site effectively, certain provisions are included in CERCLA that blocks states and private parties from interfering with EPA work.

The Anaconda Smelter is a defunct coal mine in western Montana. Covering roughly 300 miles, it’s one of the oldest and biggest Superfund Sites in the U.S. The shuttered mine was placed on the National Priorities List in 1983, and the EPA has since worked at restoring the area. However, a group of nearly 100 property owners in the EPA-delineated site sued in state court, citing common law trespass, strict liability claims, restoration damages and nuisances. Following years of court battles, the Montana Supreme Court eventually ruled in favor of the landowners.

On Thursday, the Washington Legal Foundation, a non-profit legal organization based in D.C., urged the U.S. Supreme Court to review the decision. Montana Supreme Court’s decision opens the door for private landowners to derail EPA’s efforts to clean one of the country’s biggest Superfund sites, the WLF argued in its own brief(RELATED: An Oil Company Just Earned A Huge Settlement After Environmentalists Brought False Charges)

“[T]he Montana Supreme Court should have treated the case as a classic instance of conflict preemption. Instead, in allowing the case to proceed, the state court gutted at least five discrete parts of CERCLA, including a provision that bars legal challenges to an EPA cleanup plan and a provision that bars cleanups conducted without EPA approval,” according to a Thursday press release statement from WLF.

It’s not immediately clear if the U.S. Supreme Court is willing to take the case. However, the WLF is certain the Montana court erred in its reasoning.

“Congress says that landowners may not disrupt an expensive, complex, EPA-led environmental-restoration project. Our Constitution’s Supremacy Clause ensures that, in this context, what Congress says, goes,” Corbin Barthold, WLF Litigation Counsel, said in a statement released Thursday.

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