Amicus Curiae Brief — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.

No. 17-1498

In The

Supreme Court of the United States

ATLANTIC RICHFIELD COMPANY,

v.

Petitioner,

GREGORY A. CHRISTIAN, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Montana

BRIEF OF THE CLARK FORK COALITION

AND MONTANA ENVIRONMENTAL

INFORMATION CENTER AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

Cale Jaffe

Counsel of Record

Director, Environmental and

Regulatory Law Clinic

University of Virginia

School of Law

580 Massie Road

Charlottesville, VA 22903

Telephone: (434) 924-4776

cjaffe@law.virginia.edu

Roger Sullivan, Senior Partner

McGarvey, Heberling,

Sullivan & Lacey, P.C.

345 First Avenue East

Kalispell, MT 59901

Derf Johnson

Clean Water Program

Director & Staff Attorney

Montana Environmental

Information Center

107 W. Lawrence St., #N-6

Helena, MT 59601

Andrew Gorder

Legal Director,

Clark Fork Coalition

140 South 4th West, Suite 1

Missoula, MT 59801

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii

STATEMENT OF INTEREST OF AMICI ................. 1

SUMMARY OF ARGUMENT..................................... 3

ARGUMENT ............................................................... 6

I.

A Century of Contamination in the

Upper Clark Fork River Basin

Demands Intensive Remediation. ............... 6

II.

Restoration Damages Claims Are an

Essential Part of Protecting

Montanans’ Fundamental Right to a

Clean and Healthful Environment. ............. 9

III. CERCLA Preserves a Montana

Restoration Damages Remedy that

Augments EPA’s Cleanup Efforts. ............ 15

A.

The Court’s Preemption Cases

Require a “Clear Manifestation”

of Congressional Intent to

Override State or Common Law

Remedies. ........................................... 16

B.

CERCLA’s Savings Clauses

Preserve State Remedies That

Will Aid in Cleaning Up Toxic

Waste Sites. ....................................... 17

ii

C.

A State Restoration Award to

Guarantee a Clean and

Healthful Environment

Complements CERCLA and is

not a “Challenge” to EPA’s

Remediation Scheme. ........................ 20

CONCLUSION .......................................................... 23

iii

TABLE OF AUTHORITIES

CASES

Atl. Richfield Co. v. Mont. Second Judicial

Dist. Court, 408 P.3d 515 (2017) .................. 5, 23

Bliss v. Anaconda Copper Mining Co., 167 F.

342 (D. Mont. 1909) .......................................... 10

Bos v. Dolajak, 534 P.2d 1258 (Mont. 1975) ........ 3, 10

Burley v. Burlington N. and Santa Fe Ry. Co.,

273 P.3d 825 (Mont. 2012) ............................... 14

CTS Corp. v. Waldburger, 573 U.S. 1

(2014) ................................................ 4, 17, 23, 24

Cape-France Enters. v. Estate of Peed, 29 P.3d

1011 (Mont. 2001) ................................... 5, 12, 22

Crosby v. Nat’l Foreign Trade Council, 530 U.

S. 363 (2000) ..................................................... 16

Durfee v. Granite Mountain Mining Co., 33 P.

3 (Mont. 1893) ................................................... 10

Fireman's Fund Ins. Co. v. City of Lodi, 302

F.3d 928 (9th Cir. 2002) ............................. 18, 19

Georgia v. Tennessee Copper Co., 206 U.S. 230

(1907) ................................................................ 24

Lampi v. Speed, 261 P.3d 1000 (Mont. 2011)........... 14

iv

Lincoln v. Rodgers, 1 Mont. 217 (1870) ..................... 9

Manor Care, Inc. v. Yaskin, 950 F.2d 122 (3d

Cir. 1991) ...................................................... 4, 18

McEwen v. MCR, LLC, 291 P.3d 1253 (Mont.

2012) ............................................................ 13, 14

Montana Environmental Information Center

v. Department of Environmental Quality,

988 P.2d 1236 (Mont. 1999) ............... 2, 4, 11, 12

Nelson v. C&C Plywood Corp., 465 P.2d 314

(1970) .................................................................. 3

New Mexico v. General Elec. Co., 467 F.3d

1223 (10th Cir. 2006) ........................ 4, 15, 18, 20

New York State Dep't of Soc. Servs. v.

Dublino, 413 U.S. 405 (1973) ........................... 17

Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591

(2015) ................................................................ 18

Panhandle E. Pipe Line Co. v. Public Serv.

Comm'n of Ind., 332 U.S. 507 (1947) ............... 18

Puerto Rico Dept. of Consumer Affairs v. ISLA

Petroleum Corp., 485 U.S. 495 (1988) .............. 16

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

(1947) ................................................................ 17

Samples v. Conoco, Inc., 165 F. Supp. 2d 1303

(N.D. Fla. 2001) ................................................ 21

v

State ex. rel. Dep't of Envtl. Quality v. BNSF

Ry. Co., 246 P.3d 1037 (Mont. 2010) ................ 12

Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165

P.3d 1079 (Mont. 2007) ............................ passim

United States v. Akzo Coatings of Am., Inc.,

949 F.2d 1409 (6th Cir.1991) ............................. 4

United States v. Colorado, 990 F.2d 1565

(10th Cir. 1993) ................................................. 20

Virginia Uranium, Inc. v. Warren, 139 S. Ct.

1894 (2019)........................................................ 16

Watson v. Colusa-Parrot Mining & Smelting

Co., 79 P. 14 (Mont. 1905) ................................ 10

STATUTES

42 U.S.C. § 9613(h) ................................................... 20

42 U.S.C. § 9614(a).................................... 4, 10, 17, 24

42 U.S.C. § 9652(d).......................................... 4, 10, 17

42 U.S.C. § 9659(h) ......................................... 4, 10, 17

132 Cong. Rec. 28406 (1986) ..................................... 21

132 Cong. Rec. 28410 (1986) ..................................... 21

CERCLA § 113(h) ................................................ 20, 22

CERCLA § 114(a) ................................ 4, 10, 17, 19, 24

vi

CERCLA § 310(h) ...................................... 4, 10, 17, 19

CERLCA § 302(d) ...................................................... 10

H.R. Rep. No. 99-253 ................................................. 20

H.R. Rep. No. 99-962 ................................................. 21

Mont. Const. art. II, § 3 .................................. 3, 12, 29

Mont. Const. art. IX, § 1 ..................................... 11, 22

Mont. Code Ann. § 75-10-705 et seq............................ 8

OTHER AUTHORITIES

B. Davis, S. McDermott, et al., Populationbased Mortality Data Suggests

Remediation is Modestly Effective in Two

Montana Superfund Sites, 41

ENVIRONMENTAL GEOCHEMISTRY

AND HEALTH 803 (2019) ..................... 9, 15, 19

Caleb Nelson, Preemption, 86 Va. L. Rev. 225

(2000) ................................................................ 17

Edward O’Brien, Biologists Suspect Mine

Waste in Clark Fork Fish Kill,

MONTANA PUBLIC RADIO (Sept. 9,

2019) .................................................................... 8

Gordon M. Bakken, Montana, Anaconda, and

the Price of Pollution, 69 THE

HISTORIAN 36 (2007) ....................................... 6

vii

David McCumber, Fish Kill on Clark Fork

Prompts Concern Over Pace of Cleanup,

MONTANA STANDARD

(Sept. 10, 2019) ......................................... 5, 8, 19

Norman Maclean, A River Runs Through It

and Other Stories (25th anniversary ed.,

Univ. of Chicago Press 2001) ............................. 6

Restatement (Second) of Torts § 929 cmt. b

(Am. Law Inst. 1979) ........................................ 22

Superfund Site: Anaconda Co. Smelter,

Anaconda, MT,

https://cumulis.epa.gov/supercpad/cursit

es/csitinfo.cfm?id=0800403) (last visited

Oct. 16, 2019) ...................................................... 7

Superfund Site: Milltown Reservoir

Sediments, Milltown, MT,

https://cumulis.epa.gov/supercpad/cursit

es/csitinfo.cfm?id=0800445 (last visited

Oct. 16, 2019) ...................................................... 7

Superfund Site: Silver Bow Creek/Butte Area,

Butte, MT,

https://cumulis.epa.gov/supercpad/cursit

es/csitinfo.cfm?id=0800416 (last visited

Oct. 16, 2019) ...................................................... 7

U.S. Envtl. Protection Agency Region 8, Clark

Fork River Operable Unit of the

Milltown Reservoir/Clark Fork River

Superfund Site: Record of Decision, Part

1: Declaration (Apr. 2004) .................................. 7

1

STATEMENT OF INTEREST OF AMICI1

Amici curiae, the Clark Fork Coalition and the

Montana

Environmental

Information

Center

(collectively, “Montana Conservation Amici”) bring

together more than 80 years of combined experience

as environmental advocates.

The Clark Fork

Coalition is a landowner with direct experience in

managing a ranch in the heart of a Superfund site,

while the Montana Environmental Information

Center has played a lead role in affirming the

enforceability of Montanans’ constitutional right to a

clean and healthful environment.

The Clark Fork Coalition is a membership-based

organization whose mission is to protect and restore

the Clark Fork watershed, a 14-million-acre area

that encompasses the Anaconda Co. Smelter site.

The removal of mining contamination from the

Upper Clark Fork River Basin has been a top

priority of the Coalition since its founding in 1985.

Indeed, the Clark Fork Coalition spearheaded the

effort to have the Clark Fork River corridor listed as

a Superfund site. The Coalition owns the Dry

Cottonwood Creek cattle ranch, which was the first

private property along the Upper Clark Fork River

to undergo Superfund cleanup and restoration. The

Coalition decided to purchase Dry Cottonwood Creek

Pursuant to Supreme Court Rule 37, amici curiae have

sought and received written consent for the filing of this brief

from both Respondents and Petitioner. No counsel for any party

authored this brief in whole or in part, and no person or entity

other than above-named amici curiae and their counsel made a

monetary contribution intended to fund its preparation or

submission.

1

2

Ranch in order to demonstrate how a Superfund

cleanup and an active ranching project can

productively co-exist. The Coalition continues to

work closely with Montana’s Natural Resource

Damage Program to restore the Upper Clark Fork

watershed, where legacy mining contamination has

injured both private and public resources.

Founded in 1973, the Montana Environmental

Information Center is one of the state’s most

established non-profits serving the conservation

community, with a mission to ensure clean air and

water for all Montanans. The Center has worked as

a grassroots advocate, a public educator, and a

government agency watchdog. When necessary, the

Center has utilized litigation to ensure that

Montana’s environmental laws are enforced. It

prevailed in the landmark case of Montana

Environmental Information Center v. Department of

Environmental Quality, 988 P.2d 1236 (Mont. 1999),

which affirmed that citizens may enforce the

Montana constitution’s enumerated right to a “clean

and healthful environment” as a “fundamental right”

under state law. The Center is known throughout

Montana and the West as a strong advocate for a

clean and healthful Montana environment.

Together, the Montana Conservation Amici are

invested in ensuring that the federal scheme under

the Comprehensive Environmental Response,

Compensation, and Liability Act (“CERCLA” or the

“Act”) and well-established state environmental

protections under Montana law continue to work in

harmony.

3

SUMMARY OF ARGUMENT

From the perspectives of a landowner in the

Upper Clark Fork watershed and an environmental

watchdog headquartered in the state capital of

Helena,

the

Montana

Conservation

Amici

respectfully insist that Montanans are entitled to

employ every tool available—under state and federal

law—to clean up their contaminated properties.

Confining Respondents to a limited, federal

Superfund remedy denies landowners access to

supplemental, state-specific solutions that have been

part of Montana law for decades.

Montana courts have long acknowledged the

necessity of allowing property owners to seek

restoration damages. See Nelson v. C&C Plywood

Corp., 465 P.2d 314, 325 (1970) (holding “that the

pollution of the ground water by dumping of the glue

waste is such a continuing temporary nuisance” and

affirming damages for “restoring or replacing the

fixtures, appliances, water supply and dwelling”);

Bos v. Dolajak, 534 P.2d 1258, 1261 (Mont. 1975)

(affirming restoration damages on a contract claim);

Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d

1079

(Mont.

2007)

(connecting

Montanans’

constitutional right to a clean and healthful

environment to a restoration damages claim).

Responding to contamination left behind by a

century of mining practices that prevailed before the

advent of modern environmental law, the Montana

constitution in 1972 affirmed citizens’ rights to “a

clean and healthful environment.” Mont. Const. art.

II, § 3. The Supreme Court of Montana then

confirmed that the state constitution announces “a

fundamental right” that cannot be breached absent

4

strict scrutiny. Mont. Envtl. Info. Ctr., 988 P.2d at

1246.

Barring Respondents from exercising these rights

would be like limiting a physician’s treatment of a

chronically ill patient to only one, partially effective

option. Decimated by more than a century of mining

activity, the Clark Fork watershed is a patient in

need of multi-faceted, comprehensive care.

Thankfully, Congress drafted CERCLA to ensure

that both state and federal cleanup resources remain

accessible to impacted communities. “CERCLA, it

must be remembered, does not provide a complete

remedial framework.” See CTS Corp. v. Waldburger,

573 U.S. 1, 18 (2014). Three separate savings clauses

confirm that state and common law remedies persist.

See CERCLA §§ 114(a), 302(d), 310(h); 42 U.S.C. §§

9614(a), 9652(d), 9659(h).

As then-Judge Alito observed, “[T]he language of

§ 114(a), the repeal of the original language of §

114(c), and the legislative history of that repeal

demonstrate clearly that Congress did not intend for

CERCLA to occupy the field or to prevent the states

from enacting laws to supplement federal measures

relating to the cleanup of hazardous wastes.” See

Manor Care, Inc. v. Yaskin, 950 F.2d 122, 126 (3d

Cir. 1991). Petitioner insists that “CERCLA sets

both a floor and ceiling,” Pet. Br. 50, but federal

courts have held otherwise. See New Mexico v.

General Elec. Co., 467 F.3d 1223, 1246 (10th Cir.

2006) (“CERCLA sets a floor, not a ceiling. Section

9614(a) preserves state environmental regulations

which in some instances set more stringent cleanup

standards.”) (emphasis added) (citing United States

5

v. Akzo Coatings of Am., Inc., 949 F.2d 1409 (6th

Cir.1991)).

Faced with the unambiguous language in

CERCLA’s savings clauses, Petitioner raises the

specter of obstacle preemption, claiming that

Montana’s restoration damages remedy would undo

EPA’s cleanup efforts and that the community

“might perversely face a heightened risk of exposure

to hazardous substances if [R]espondents’ plans

became reality.” See Pet. Br. 49. This argument,

however, ignores that Montana’s constitutional

provisions securing a fundamental right to a “clean

and healthful environment” would prohibit any

restoration plans that might cause environmental

damage or harm to human health. See Cape-France

Enters. v. Estate of Peed, 29 P.3d 1011, 1017 (Mont.

2001). To ensure that state law does not conflict with

the Act, the Supreme Court of Montana confirmed

that “nothing in our holding here should be

construed as precluding ARCO from contesting the

Property Owners’ restoration damages claims on its

own merits.” See Atl. Richfield Co. v. Mont. Second

Judicial Dist. Court, 408 P.3d 515, 522 (2017).

The pervasive pollution problem throughout the

Upper Clark Fork Superfund complex continues to

impose environmental harms and threaten public

health. See David McCumber, Fish Kill on Clark

Fork Prompts Concern Over Pace of Cleanup,

MONTANA

STANDARD

(Sept.

10,

2019),

https://mtstandard.com/news/local/fish-kill-on-clarkfork-prompts-concern-over-pace-of/article_babb87ad0dc4-50e0-a62a-33aa5576da2e.html

(hereinafter

“Fish Kill on Clark Fork”). The only way Montana

will achieve long-term cleanup of such a thoroughly

6

contaminated watershed is through a combination of

tools. Superfund and Montana’s state law remedies

must remain on the table.

ARGUMENT

I. A Century of Contamination in the Upper

Clark Fork River Basin Demands

Intensive Remediation.

Montana Conservation Amici are committed to

leveraging both CERCLA and state law remedies to

address the tragic legacy of contamination at the

Anaconda Co. Smelter site. The Clark Fork River

arises from its headwaters near Butte and

Anaconda, and gathers waters from various

tributaries for 120 miles until—near Missoula—it

reaches its confluence with the Blackfoot River made

famous by Norman Maclean. See A RIVER RUNS

THROUGH IT AND OTHER STORIES (25th anniversary

ed., Univ. of Chicago Press 2001).

The history of the Upper Clark Fork watershed

is that of a hard-working river system, supporting

Butte’s copper mining industry from the late 19th

century through much of the 20th century. See

Gordon M. Bakken, Montana, Anaconda, and the

Price of Pollution, 69 THE HISTORIAN 36, 37 (2007).

The Anaconda copper mine traces its origins to an

enterprise begun in 1880, id., which continued until

Petitioner closed the site in 1983. Id. at 46. The

Clark Fork River and its tributaries were relied

upon as a means to power the mines, fuel smelters,

and transport waste—all in support of Butte’s

massive copper mining industry. Id. at 47.

7

Over the course of a century, mine operations

and natural processes spread mine waste across

much of western Montana. Mine tailings comprised

of heavy metals worked their way into rivers and

streams and left an expansive, toxic footprint across

the watershed. Moonscape-like dead zones, known

as “slickens,” remain. See U.S. Envtl. Protection

Agency Region 8, CLARK FORK RIVER OPERABLE UNIT

OF THE MILLTOWN RESERVOIR/CLARK FORK RIVER

SUPERFUND SITE: RECORD OF DECISION, Part 1:

Declaration, at 1-5 (Apr. 2004) (“The floodplain is

severely impacted by the presence of mining wastes.

Tailings materials present in the root zone of

riparian area soils are toxic to terrestrial plants. The

most obvious instances of this toxicity are slickens

areas—areas of exposed tailings that generally lack

vegetation.”).

Montana Conservation Amici have been involved

for many decades in assisting with clean up at three,

separately designated Superfund sites (referred to as

the Upper Clark Fork Superfund complex). 2 The

Clark Fork Coalition purchased a 2,300 acre working

cattle ranch in 2005 to serve as a model for

2 The three sites within the Upper Clark Fork Superfund

complex are:

1) Superfund Site: Silver Bow Creek/Butte Area, Butte,

MT,

https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?

id=0800416 (last visited Oct. 16, 2019);

2) Superfund Site: Milltown Reservoir Sediments,

Milltown, MT,

https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?

id=0800445 (last visited Oct. 16, 2019); and

3) Superfund Site: Anaconda Co. Smelter, Anaconda, MT,

https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?

id=0800403) (last visited Oct. 16, 2019).

8

remediation.

The Montana Environmental

Information Center has been engaged in Butte-area

Superfund cleanups for many years, and has worked

in the Montana legislature to defend Montana’s

mini-Superfund law, the Montana Comprehensive

Environmental Cleanup and Responsibility Act,

Mont. Code Ann. § 75-10-705 et seq. (West 1989).

Despite the work of Montana Conservation

Amici and many other stakeholders, contamination

persists at dangerous levels. A recent news report of

a significant fish kill in the Clark Fork River has

been attributed by state officials to contaminated

rain water that overwhelmed berms built by

Petitioner in the 1980s to contain the toxic

“slickens.” See McCumber, Fish Kill on Clark Fork,

supra p. 5. The event highlights the pervasiveness of

mining waste that continues to cause harm.

Nathan Cook, a biologist with Montana Fish,

Wildlife and Parks, observed:

It’s one thing to read all the old reports

and newspaper stories about fish kills,

but to see it with your own eyes is much

different. It shows how vulnerable the

river is … It just brings home how

much of a problem these metals are,

and how important this cleanup is.

Id. (alteration in original). See also Edward O’Brien,

Biologists Suspect Mine Waste in Clark Fork Fish

Kill, MONTANA PUBLIC RADIO (Sept. 9, 2019),

https://www.mtpr.org/post/biologists-suspect-minewaste-clark-fork-fish-kill.

The harm is not limited to heavy metal

contamination impacting trout populations and

other ecological damage. A recent scientific study

9

confirms enduring and severe human health effects

as well. Between 2000 and 2016—i.e., many years

into EPA’s work in the area—“[c]ancers, cerebro- and

cardiovascular diseases (CCVD), and organ failure

were elevated” for one county within the Anaconda

Co. Smelter site and a contiguous county within the

Silver Bow Creek/Butte Area Superfund site. See B.

Davis, S. McDermott, et al., Population-based

Mortality Data Suggests Remediation is Modestly

Effective in Two Montana Superfund Sites, 41

ENVIRONMENTAL GEOCHEMISTRY AND HEALTH 803

(2019) (hereinafter “Davis & McDermott, Mortality

Data from Montana Superfund Sites”).

The researchers’ most relevant finding for the

purposes of this litigation is as follows: “Our study

suggests that while remediation is conveying some

reduction in negative health consequences, these

efforts have not protected the residents of these two

counties as a whole, and further remediation is

required to protect human health.” Id. at 810-11

(emphasis added). Respondents’ claim for restoration

damages must be evaluated as a component of the

“further remediation” that research tells us is

necessary.

II. Restoration Damages Claims Are an

Essential Part of Protecting Montanans’

Fundamental Right to a Clean and

Healthful Environment.

Restoration provides a remedy for common law

nuisance claims for damages to real property. In

Montana, these common law legal doctrines were

invoked as early as 1870, nineteen years before

statehood. See Lincoln v. Rodgers, 1 Mont. 217

10

(1870) (holding that mine operators could not allow

tailings to run unrestricted onto downstream

property). In recent decades, restoration damages

claims have built upon Montana’s constitutional

guarantee of a “clean and healthful environment,”

which stands as one of the strongest environmental

protections among state constitutional provisions. It

is onto this well-established body of state law that

Congress added CERCLA, with savings clauses that

guarantee the federal Act will supplement—but not

supplant—Montana’s pre-existing, common law

damage remedies. See CERCLA §§ 114(a), 302(d), §

310(h); 42 U.S.C. §§ 9614(a), 9652(d), 9659(h).

Almost as soon as mining took hold in Montana,

nuisance suits for environmental damages followed.

See, e.g., Durfee v. Granite Mountain Mining Co., 33

P. 3, 4 (Mont. 1893) (debris from milling operation

contaminating downstream properties); Watson v.

Colusa-Parrot Mining & Smelting Co., 79 P. 14, 14

(Mont. 1905) (farmers downriver of a smelting

operation alleging that the mine operator had

“polluted the water … to such an extent as to render

such waters unfit for irrigation or domestic use”);

Bliss v. Anaconda Copper Mining Co., 167 F. 342,

350 (D. Mont. 1909) (farmers complaining “that such

quantities of sulphur [sic] and arsenic were

discharged into the air through the several smoke

stacks … that the crops and live stock [sic] in the

valley were being poisoned”).

In recent decades, Montana courts have accepted

that the cost of making a plaintiff whole (i.e.,

repairing damaged property) may very well exceed

the market value of the property itself. See Bos v.

Dolajak, 534 P.2d at 1261 (upholding a substantial

damages award for the replacement of an unfinished

11

silo because plaintiffs were dairy farmers and “the

inherent nature of their operation require[d] an

integrated program” with reliance on the silo “prior

to the spring growing season.”). Thus, as Petitioner

concedes, “[u]nder Montana law, anyone who causes

an injury to land that ‘is used for a purpose personal

to the owner,’ like a residence, may face unique

remedial obligations.” See Pet. Br. 43 (quoting

Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d

1079, 1087 (Mont. 2007)).

Although Sunburst is the critical case in

understanding Montana law on the right to

restoration damages, the seeds for that decision were

planted

eight

years

earlier

in

Montana

Environmental Information Center v. Department of

Environmental Quality, 988 P.2d 1236 (Mont. 1999).

There, the Supreme Court of Montana confirmed,

“[T]he right to a clean and healthful environment is

a fundamental right because it is guaranteed by the

Declaration of Rights found at Article II, Section 3 of

Montana’s Constitution … .” Mont. Envtl. Info. Ctr.,

988 P.2d at 1246. The state constitution further

provides, “The state and each person shall maintain

and improve a clean and healthful environment in

Montana for present and future generations.” Mont.

Const. art. IX, § 1. Relying on the text of the state

constitutional provisions and their legislative

history, the Supreme Court of Montana held that the

constitution was intended by its drafters “to be the

strongest environmental protection provision found

in any state constitution.” Id. at 1246.

Thus, the state constitution does not “merely

prohibit that degree of environmental degradation

which can be conclusively linked to ill health or

physical endangerment;” it goes further. Id. at 1249.

12

A clean and healthful environment mandates

“adequate remedies … to prevent unreasonable

degradation of natural resources.” Id. The Supreme

Court of Montana has explained both the force of

this constitutional guarantee and the need for it

given Montana’s long history with extractive

industries:

For better and for worse, many

companies in the business of natural

resource development leave evidence of

their practices in Montana long after

such companies cease to exist.

Montana’s unique governing body of

law reflects the value that Montanans

place on protection, promotion, and

restoration of the environment. The

Montana Constitution provides that all

persons have a ‘right to a clean and

healthful environment.’ Mont. Const.

art. II, § 3. The right to a clean and

healthful environment constitutes a

fundamental right.

State ex. rel. Dep’t of Envtl. Quality v. BNSF Ry. Co.,

246 P.3d 1037, 1046 (Mont. 2010). See also CapeFrance Enters. v. Estate of Peed, 29 P.3d 1011, 101617 (Mont. 2001) (“Montana’s Constitution, Article II,

Section 3, guarantees all persons in this state the

right to a clean and healthful environment. This

guarantee is a fundamental right that may be

infringed only by demonstrating a compelling state

interest.”).

With the state constitutional framework

established, the Sunburst court was tasked with

13

evaluating claims brought by a school district and

private property owners for public nuisance and

violation of the state constitutional right to a clean

and healthful environment, all stemming from a

gasoline refinery’s alleged contamination of soil and

groundwater. Sunburst, 165 P.3d at 1084-86. Under

the state’s analogue to CERCLA, the Montana

Comprehensive

Environmental

Cleanup

and

Responsibility Act, state environmental regulators

had merely ordered the oil company defendant to

undertake “monitored natural attenuation,” i.e.,

observe the migration of underground pollutants but

bear no responsibility for mitigating the harm. Id. at

1084. The state court ruled that the school district

was entitled to far more: “If a plaintiff wants to use

the damaged property, instead of selling it,

restoration of the property constitutes the only

remedy that affords a plaintiff full compensation.”

Id. at 1087. Thus, the court held that “an award of

restoration damages must be available to

compensate a plaintiff fully for damages to real

property when diminution in value fails to provide

an adequate remedy.” Id. at 1088. Critical to the

court’s holding was its recognition that Montana’s

mini-Superfund law’s “focus on cost effectiveness

and limits on health-based standards differ from the

factors to be considered in assessing damages under

the common law.” Id. at 1092.

Following Sunburst, plaintiffs in Montana courts

have recovered restoration damages in varied

circumstances, including when the damages sought

exceeded the value of the injured property. In

McEwen v. MCR, LLC, 291 P.3d 1253, 1269 (Mont.

2012), for example, the court affirmed that private

property owners could “pursue restoration costs as

14

an appropriate measure of damages to their

property” stemming from poor management of a

natural gas compressor station. Although the

“McEwens’ contaminated property had an estimated

value of between $850 and $2400,” the court still

allowed pursuit of restoration damages in the range

of “$138,000 and $2.2 million,” provided the

McEwens could establish “personal reasons” for the

restoration, including a showing that they

“genuinely intend[ed] to restore the property.” Id. at

1261. See also Lampi v. Speed, 261 P.3d 1000, 1004

(Mont. 2011) (“[c]ertain cases warrant an award of

restoration damages in excess of the property’s

diminution in market value”).

These cases also demonstrate the broad

availability of common law remedies in situations

analogous to the one faced by Respondents here. See,

e.g., Burley v. Burlington N. and Santa Fe Ry. Co.,

273 P.3d 825, 844 (Mont. 2012) (on a certified

question from the U.S. District Court, holding that a

“tortfeasor who impairs the property rights of

another should not prevail simply because its

pollution or interference with another’s property

takes a lengthy amount of time or a large amount of

money to abate.”).

Crucially, as the Sunburst court confirmed,

Montanans’ historical right to seek restoration

damages works in concert with the constitutional

guarantee of a clean and healthful environment. See

Sunburst, 165 P.3d at 1093 (“We … allow for the

recovery of restoration damages … [which] would

restore a private party back to the position that it

occupied before the tort. An award of restoration

damages serves to ensure a clean and healthful

environment.”).

15

Simply put, restoration damages are available to

compensate plaintiffs for a variety of tortious acts

under Montana law and—because they guarantee

greater environmental protections than CERCLA

alone can provide—they are precisely the type of

common law obligations that CERCLA’s savings

clauses were designed to preserve. See New Mexico,

467 F.3d at 1246 (holding that CERCLA “preserves

state environmental regulations which in some

instances set more stringent cleanup standards.”)

(internal citation omitted).

What is more,

epidemiological research confirms that these

additional remedies may be necessary to bring the

Anaconda Co. Smelter site back to health. See Davis

& McDermott, Mortality Data from Montana

Superfund Sites, supra p. 9, at 810-12.

III. CERCLA

Preserves

a

Montana

Restoration Damages Remedy that

Augments EPA’s Cleanup Efforts.

Petitioner acknowledges that CERCLA’s savings

clauses “indicate that Congress did not mean for the

statute to occupy the field and extinguish every

possible state-law claim on the same subject,”

leaving Petitioner to argue “impossibility or obstacle

preemption.” Pet. Br. 52. The Court’s wellestablished jurisprudence on preemption, however,

strongly counsels against second-guessing Montana’s

law on restoration—especially given that CERCLA

explicitly envisions an important role for the states

in augmenting the cleanup of hazardous waste sites.

16

A. The

Court’s

Preemption

Cases

Require a “Clear Manifestation” of

Congressional Intent to Override

State or Common Law Remedies.

“This Court has sometimes used different labels

to describe the different ways in which federal

statutes may displace state laws—speaking, for

example, of express, field, and conflict preemption.

But these categories ‘are not rigidly distinct.’”

Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894,

1901 (2019) (Gorsuch, J.) (quoting Crosby v. Nat’l

Foreign Trade Council, 530 U. S. 363, 372, n. 6

(2000)). See also Virginia Uranium, 139 S. Ct. at

1911-12 (Ginsburg, J.) (“This Court has delineated

three circumstances in which state law must yield to

federal law. First, and most obvious, federal law

operates exclusively when Congress expressly

preempts state law. Second, state law can play no

part when ‘Congress has legislated comprehensively

to occupy an entire field of regulation, leaving no

room for the States to supplement federal law.’

Third, state law is rendered inoperative when it

‘actually conflicts with federal law,’ as when a

private party cannot ‘comply with both state and

federal requirements.’”) (internal citations omitted).

Justice Gorsuch’s opinion in Virginia Uranium

counsels that “[i]nvoking some brooding federal

interest or appealing to a judicial policy preference

should never be enough to win preemption of a state

law; a litigant must point specifically to ‘a

constitutional text or a federal statute’ that does the

displacing or conflicts with state law.” Virginia

Uranium, 139 S. Ct. at 1901 (quoting Puerto Rico

17

Dept. of Consumer Affairs v. ISLA Petroleum Corp.,

485 U.S. 495, 503 (1988)). See also Caleb Nelson,

Preemption, 86 VA. L. REV. 225, 265-90 (2000)

(outlining several critiques of obstacle preemption

doctrine). This is because “[i]t will not be presumed

that a federal statute was intended to supersede the

exercise of the power of the state unless there is a

clear manifestation of intention to do so. The

exercise of federal supremacy is not lightly to be

presumed.” New York State Dep’t of Soc. Servs. v.

Dublino, 413 U.S. 405, 413 (1973) (internal

quotation marks and citation omitted). Where

Congress chooses to regulate in an area traditionally

reserved to the states, as is the case here, the federal

preemption analysis begins “with the assumption

that the historic police powers of the States were not

to be superseded by the Federal Act unless that was

the clear and manifest purpose of Congress.” Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

B. CERCLA’s Savings Clauses Preserve

State Remedies That Will Aid in

Cleaning Up Toxic Waste Sites.

Where a state has enshrined a clear preference

for greater environmental restoration than federal

law provides, the state’s preference remains

preserved. See CERCLA § 114(a), 42 U.S.C. §9614(a)

(“Nothing in [the Act] shall be construed or

interpreted as preempting any State from imposing

any additional liability or requirements with respect

to the release of hazardous substances within such

State.”). See also CERLCA §§ 302(d), 310(h); 42

U.S.C. §§ 9652(d), 9659(h); CTS Corp., 573 U.S. at

18

18 (“CERCLA, it must be remembered, does not

provide a complete remedial framework.”).

Conversely, when a federal statute has been

“‘drawn with meticulous regard for the continued

existence of state power,’” courts “must proceed

cautiously, finding pre-emption only where detailed

examination convinces us that a matter falls within

the pre-empted field as defined by our precedents.”

Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1599

(2015) (quoting Panhandle E. Pipe Line Co. v. Public

Serv. Comm'n of Ind., 332 U.S. 507, 517-18 (1947)).

The text of the federal statute at issue here could not

have been drafted more clearly. Three distinct

savings clauses demonstrate that Congress enacted

CERCLA “with meticulous regard” for the role of the

states.

Thus, the Third, Tenth, and Ninth Circuits have

all recognized a broad array of state remedial

programs that are preserved by CERCLA. See

Manor Care, Inc. v. Yaskin, 950 F.2d 122, 126 (3d

Cir. 1991) (Alito, J.) (“[T]he language of § 114(a) [and

the repeal of another CERCLA provision]

demonstrate clearly that Congress did not intend for

CERCLA … to prevent the states from enacting laws

to supplement federal measures relating to the

cleanup of hazardous wastes.”); New Mexico v.

General Elec. Co., 467 F.3d 1223, 1246 (10th Cir.

2006) (“CERLCA’s savings clauses … undoubtedly

preserve a quantum of state legislative and common

law actions and remedies related to the release and

cleanup of hazardous waste.”); Fireman’s Fund Ins.

Co. v. City of Lodi, 302 F.3d 928, 941 (9th Cir. 2002)

(“CERCLA contains three separate savings clauses

to preserve the ability of states to regulate in the

19

field of hazardous waste cleanup.”); id. at 956 (“In

sum, we hold that CERCLA … do[es] not preempt

the field of hazardous waste remediation, either

explicitly or by implication.”).

CERCLA’s savings clauses are particularly

concerned with state responses to the continued

release of pollutants. The first savings clause,

CERCLA § 114(a), ensures that nothing in the

federal law “shall be construed or interpreted as

preempting any State from imposing any additional

liability or requirements with respect to” the ongoing

release of hazardous and toxic substances from an

identified Superfund area. The second clause,

CERCLA § 302(d), includes similar protections for

state law remedies designed to address “releases of

hazardous substances or other pollutants or

contaminants.” The third clause, CERCLA § 310(h),

is even broader and notes that the Act “does not

affect or otherwise impair the rights of any person

under Federal, State, or common law,” except in

limited circumstances not applicable here.

Continued release of pollutants remains a

particularly vexing problem throughout the Upper

Clark Fork Superfund complex, as a September 2019

fish kill event demonstrates. See McCumber, Fish

Kill on Clark Fork, supra p. 5. Toxins are still

migrating from river banks and “slickens” into

downstream habitats. Id. Public health studies

confirm that even decades after EPA delineated the

Anaconda Co. Smelter site, “mortality ratios for

cancer and organ failure were significantly elevated

for the case counties.” See Davis & McDermott,

Mortality Data from Montana Superfund Sites,

supra p. 9, at 812.

20

The directly impacted communities are entitled

to relief. State remedies must remain part of the

cleanup enterprise, as “CERCLA sets a floor, not a

ceiling.” New Mexico, 467 F.3d at 1246. For good

reason, CERCLA preserves Montana’s unique, state

law remedies aimed at environmental restoration.

Cf. Sunburst, 165 P.3d at 1092 (holding that

Montana’s mini-Superfund law does not preempt “a

common law claim that seeks to recover restoration

damages to remediate contamination beyond the

statute's health-based standards.”).

C. A State Restoration Award to

Guarantee a Clean and Healthful

Environment Complements CERCLA

and is not a “Challenge” to EPA’s

Remediation Scheme.

Perhaps mindful of the hurdles imposed on it by

the Act’s savings clauses, Petitioner attempts to

identify some specific, statutory text that might

nevertheless carry the day. It looks to CERCLA §

113(h), 42 U.S.C. § 9613(h), which is unremarkable

in barring most “challenges” to an EPA-mandated

remediation plan. See Pet. Br. 27-28. Yet this

provision was never intended to inhibit supplemental

state law remedies, as the legislative history makes

clear.

Congress’ purpose in amending CERCLA to add §

113(h) was to bar polluting parties who are

financially responsible for cleanup “from filing

dilatory, interim lawsuits which have the effect of

slowing down or preventing the EPA’s cleanup

activities.” H.R. REP. NO. 99-253, pt.1 (1985); see also

United States v. Colorado, 990 F.2d 1565, 1576 (10th

21

Cir. 1993) (quoting the House Report).

The

committee of conference on the Superfund

Amendments and Reauthorization Act of 1986

(“SARA”) further explained, “New section 113(h) is

not intended to affect in any way the rights of

persons to bring nuisance actions under State law

with respect to releases or threatened releases of

hazardous substances, pollutants, or contaminants.”

H.R. REP. NO. 99-962, at 224 (1986) (Conf. Rep.); see

also Samples v. Conoco, Inc., 165 F.Supp. 2d 1303,

1312 (N.D. Fla. 2001) (quoting the Conference

Report).

Senator Robert Stafford (R-Vermont), a member

of the committee of conference on SARA confirmed:

The time of review of judicial challenges

to cleanups is governed by 113(h) for

those suits to which it is applicable. It

is not by any means applicable to all

suits. For purposes of those based on

State law, for example, 113(h) governs

only those brought under State law

which is applicable or relevant and

appropriate as defined under section

121. In no case is State nuisance law,

whether public or private nuisance,

affected by 113(h).

132 Cong. Rec. 28406, 28410 (1986) (emphasis

added); see also Samples, 165 F.Supp.2d at 1312

(quoting the Congressional Record).

This legislative history is congruent with broad

acceptance of the common law remedies at issue

here. Restoration damages to real property were

expressly addressed in the Restatement (Second) of

Torts published in 1979—just one year prior to the

22

original enactment of CERCLA. See RESTATEMENT

(SECOND) OF TORTS § 929 cmt. b (AM. LAW INST.

1979). Montana has gone on to adopt this remedy

for certain common law nuisance claims. Sunburst,

165 P.3d at 1088 (“We now join other jurisdictions in

adopting the flexible guidelines of the Restatement

(Second) of Torts § 929, and comment b, for the

calculation of damages to real property to ensure

that plaintiffs receive a proper remedy for their

injuries.”).

Here, Petitioner’s argument on CERCLA § 113(h)

boils down to a claim that any restoration damages

award would risk causing more environmental harm.

See Pet. Br. 29 (insisting that a restoration damages

claim “call[s] into doubt EPA’s judgment about the

appropriate soils remedy, as well as EPA’s judgment

that [R]espondents’ plan could spread arsenic-laden

soil to the winds”).

This is the telltale error in Petitioner’s case. The

only way a restoration damages claim could worsen

Anaconda’s legacy of environmental contamination

in the Clark Fork River Basin would be for Montana

courts to grossly misapply their own laws,

constitution,

and

precedents.

Montana’s

constitutional provisions securing a fundamental

right to a “clean and healthful environment” would

serve as a bar to any restoration plans that might

cause environmental damage or harm to human

health. See Cape-France Enters., 29 P.3d at 1017

(“In light of these two provisions of Montana’s

Constitution [Mont. Const. art. II, § 3 and art. IX, §

1], it would be unlawful for Cape–France, a private

business entity, to drill a well on its property in the

face of substantial evidence that doing so may cause

23

significant degradation of uncontaminated aquifers

and pose serious public health risks.”).

To the extent that Petitioner and the EPA are

troubled by Respondents’ proposals to remediate

their own private properties, Montana law provides

a straightforward solution: present evidence on the

alleged harm to the Montana court overseeing the

restoration damages claim. See Atl. Richfield Co.,

408 P.3d at 522 (“nothing in our holding here should

be construed as precluding ARCO from contesting

the Property Owners’ restoration damages claim on

its own merits,” and “Property Owners are not

seeking to compel EPA to do, or refrain from doing,

any action.”).

Following the state court process to its conclusion

is the federalism-respecting solution. It will preserve

EPA’s authority to execute its cleanup plan under

Superfund while adhering to CERCLA’s savings

clauses that unambiguously allow state nuisance

claims to proceed in harmony with the federal

regime. See CTS Corp., 573 U.S. at 4 (In enacting

CERLCA in 1980, Congress “provided a federal

cause of action to recover costs of cleanup from

culpable entities but not a federal cause of action for

personal injury or property damage.”).

CONCLUSION

In a much earlier case addressing contamination

caused by copper mining, Justice Holmes reflected

that a state government should have “the last word

as to whether its mountains shall be stripped of their

forests and its inhabitants shall breathe pure air. …

The states, by entering the Union, did not sink to the

24

position of private owners, subject to one system of

private law.” Georgia v. Tennessee Copper Co., 206

U.S. 230, 237-38 (1907). In this case, the Supreme

Court of Montana has articulated the state’s interest

in upholding Montanans’ right to a clean and

healthful environment as a fundamental right, and

in allowing claims for restoration damages to

proceed in order to effectuate that right.

While CERCLA is intended to provide a

comprehensive scheme for mitigating environmental

harms of national concern, Montana’s restoration

damages remedy must be permitted to augment the

federal Act. See CTS Corp., 573 U.S. at 18.

Montanans’ right to a clean and healthful

environment, enshrined in the state constitution,

should not be undercut by a federal statute that

explicitly preserves a state’s authority to impose

“additional liability or requirements” on polluters.

See CERCLA § 114(a), 42 U.S.C. §9614(a).

Montana Conservation Amici ask that the

judgment of the Supreme Court of Montana be

affirmed.

Respectfully submitted,

Cale Jaffe

Counsel of Record

Director, Environmental and Regulatory Law Clinic

University of Virginia School of Law

580 Massie Road

Charlottesville, VA 22903

Telephone: (434) 924-4776

cjaffe@law.virginia.edu

(Counsel listing continues on next page.)

25

Roger Sullivan, Senior Partner

Counsel for Montana Environmental

Information Center

McGarvey, Heberling, Sullivan & Lacey, P.C.

345 First Avenue East

Kalispell, MT 59901

Derf Johnson

Clean Water Program Director & Staff Attorney

Montana Environmental Information Center

107 W. Lawrence St., #N-6

Helena, MT 59601

Andrew Gorder

Legal Director, Clark Fork Coalition

140 South 4th West, Suite 1

Missoula, MT 59801

DATED: October 22, 2019