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

Supreme Court briefOct 22, 2019

Ask Donna

What actually matters in this document.

Text

No. 17-1498

In the Supreme Court of the United States

-----------------------------------------------------------------------

ATLANTIC RICHFIELD COMPANY, PETITIONER

GREGORY A. CHRISTIAN, ET AL.

----------------------------------------------------------------------ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MONTANA

----------------------------------------------------------------------BRIEF AMICI CURIAE OF THE

COMMONWEALTH OF VIRGINIA AND THE

STATES OF CALIFORNIA, CONNECTICUT,

DELAWARE, HAWAII, MAINE, MARYLAND,

MISSISSIPPI, NEW JERSEY, NEW YORK,

OREGON, RHODE ISLAND, VERMONT,

WASHINGTON, AND WISCONSIN

IN SUPPORT OF RESPONDENTS

----------------------------------------------------------------------MARK R. HERRING

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

DONALD D. ANDERSON

Deputy Attorney General MICHELLE S. KALLEN

MARTINE E. CICCONI

Deputy Solicitors General

JESSICA MERRY SAMUELS

Assistant Solicitor General

ZACHARY R. GLUBIAK

Attorney

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

solicitorgeneral@oag.state.va.us

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

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

INTEREST OF THE AMICI CURIAE .................

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

ARGUMENT ........................................................

Congress specifically considered and failed

to enact the very sort of preemption petitioner describes ..........................................

A. Early legislative efforts to address hazardous waste releases failed because

the House and Senate were unable to

reach agreement on preemption ..........

B. The Congress that enacted CERCLA

made a deliberate choice not to preempt

state laws ............................................. 13

II.

Petitioner’s arguments for conflict preemption are without merit ........................ 19

A. Montana’s restoration damages remedy does not create an “obstacle” to fulfillment of CERCLA’s purpose ............. 20

B. Compliance with federal and Montana

law is not “impossible” ......................... 26

CONCLUSION..................................................... 30

TABLE OF AUTHORITIES

Page

Cases:

Arizona v. United States,

567 U.S. 387 (2012) .................................................21

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005) .................................................21

Cipollone v. Liggett Group,

505 U.S. 504 (1992) ............................................. 5, 19

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) .................................................21

CSX Transp., Inc. v. Easterwood,

507 U.S. 658 (1993) .................................................21

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) ............................................... 20, 22

Exxon v. Hunt,

475 U.S. 355 (1986) .................................................18

Gade v. National Solid Wastes Mgmt. Ass’n,

505 U.S. 88 (1992) ...................................................21

Geier v. American Honda Motor Co., Inc.,

529 U.S. 861 (2000) ............................... 22, 24, 25, 26

Georgia v. Tennessee Copper Co.,

206 U.S. 230 (1907) ...................................................5

Gregory v. Ashcroft,

501 U.S. 452 (1991) ...................................................1

Massachusetts v. E.P.A.,

549 U.S. 497 (2007) ...................................................5

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ......................................... 1, 5, 25

iii

TABLE OF AUTHORITIES – Continued

Page

Merck Sharp & Dohme Corp. v. Albrecht,

139 S. Ct. 1668 (2019) ....................................... 26, 27

Mutual Pharmaceutical Co. v. Bartlett,

570 U.S. 472 (2013) .................................................28

Phillips Petroleum Co. v. Mississippi,

484 U.S. 469 (1998) ...................................................5

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) ........................................... 20, 21

Silkwood v. Kerr-McGee Corp.,

464 U.S. 238 (1984) .................................................23

Spriestma v. Mercury Marine,

537 U.S. 51 (2002) ...................................................23

Virginia Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019) .............................................21

Wyeth v. Levine,

555 U.S. 555 (2009) ................................... 4, 5, 22, 26

Constitution, Statutes, Regulations, and Rules:

42 U.S.C. § 9614(a) ...................................... 2, 24, 25, 26

42 U.S.C. § 9614(b) ......................................................22

42 U.S.C. § 9652(d) ............................................ 2, 24, 25

42 U.S.C. § 9655 ..........................................................17

42 U.S.C. § 9658(a)(1) .................................................22

42 U.S.C. § 9659(h)...................................... 2, 19, 24, 25

U.S. Const. art. VI, cl. 2 .................................................1

TABLE OF AUTHORITIES – Continued

Page

Miscellaneous:

Committee Print, A Legislative History of the

Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), Public Law 96-510, (1983) ................... passim

Frank P. Grad, A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability (Superfund) Act of 1980,

8 Colum. Envtl. Law J. 1 (1982)..............................16

INTEREST OF THE AMICI CURIAE

“States retain substantial sovereign powers under

our constitutional scheme, powers with which Congress does not readily interfere.” Gregory v. Ashcroft,

501 U.S. 452, 461 (1991). Valid federal statutes are, of

course, “the supreme Law of the Land . . . any Thing in

the Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. But “because the States are independent sovereigns in our

federal system,” this Court “ha[s] long presumed that

Congress does not cavalierly pre-empt state-law

causes of action.” Medtronic, Inc. v. Lohr, 518 U.S. 470,

485 (1996). While the specific facts of this case concern

a dispute between private parties, petitioner’s arguments seek broad preemptive relief that could interfere with the delicate “constitutional balance between

the States and the Federal Government.” Gregory, 501

U.S. at 460 (quotation marks omitted).

States have a strong interest in ensuring that

their citizens (and the State itself ) are compensated

for injuries caused by releases of hazardous materials

and in preserving their authority to address, respond

to, and remediate harm from environmental contamination. In addition, States, apart from private litigants, bring claims for restoration of natural resources

pursuant to CERCLA and in their parens patriae and

public trust capacities. States thus have an interest

in ensuring that the Court’s resolution of this case

does not call into question actions taken by States as

trustees of their natural resources, as well as ensuring

that the appropriate balance of authority between the

Federal Government and the States as independent

sovereigns is maintained.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

Petitioner paints a picture of the Comprehensive

Environmental Response, Compensation, and Liability

Act (CERCLA) that is predicated on federal primacy.

Indeed, the first substantive sentence of petitioner’s

brief asserts that Congress had one (and only one)

overriding goal in enacting CERCLA: “plac[ing] the

federal government in charge of remediating hazardous waste sites across America from start to finish.”

Pet. Br. 3.

That sort of single-minded purpose, however, appears nowhere in the statute Congress enacted. To the

contrary, CERCLA’s text (and the process that led to it)

reveals that Congress also aimed to preserve the

States’ traditional role in addressing environmental

contamination. To that end, the statutory text specifically disclaims any intent to prevent States from “imposing . . . additional liability or requirements with

respect to the release of hazardous substances” within

their borders, 42 U.S.C. § 9614(a), or to “modify in any

way the obligations or liabilities [existing] under other

Federal or State law,” 42 U.S.C. § 9652(d) (emphasis

added); see also 42 U.S.C. § 9659(h) (“This chapter does

not affect or otherwise impair the rights of any person

under Federal, State, or common law, except with

respect to the timing of review . . . or as otherwise provided in section 9658 of this title (relating to actions

under State law).”).

Petitioner insists that CERCLA’s savings clauses

are inapplicable here because it does not challenge respondents’ ability to obtain all forms of state law damages for pollution to their property.1 Pet. Br. 51, 53–54.

The issue, petitioner claims, is the specific type of damages in question. According to petitioner, Montana’s

restoration damages remedy2 is subject to conflict

preemption—both because it stands as an obstacle to

CERCLA’s “full purposes and objectives,” id. at 47; and

Amici limit their arguments to the third question presented.

Consistent with the parties’ briefs, amici use the term “restoration damages” to describe the remedy authorized by Montana

law at issue in this case. That term, however, should not be confused with the remedies States are specifically authorized to

seek under CERCLA (as well as through state statutory and

common-law authorities). CERCLA authorizes States, as “trustees

of natural resources,” to seek “damages for injury to, destruction

of, or loss of natural resources,” including the costs of restoring

such resources. 42 U.S.C. § 9607(a)(4)(C), (f ); see also 43 C.F.R.

§ 11.14(ll) (defining “restoration” to mean “actions undertaken to

return an injured [natural] resource to its baseline condition, as

measured in terms of the injured resource’s physical, chemical,

or biological properties”). Because the questions presented in

this case concern CERCLA’s impact on a Montana-specific

remedy, States’ ability to bring claims in their capacity as sovereigns is not at issue. Accordingly, regardless of how the Court

resolves this case, the Court should make clear that its ruling

does not implicate actions taken by States as trustees of their

natural resources.

because it is “impossible” to comply with both federal

and state law, id. at 40.

That argument fails. Petitioner distorts CERCLA’s

language and purpose, transforming it from a statute

premised on cooperative federalism into one that

would empower the Federal Government to the exclusion of the States. In reality, nothing in CERCLA

comes close to approaching the “clear and manifest

purpose” necessary to establish conflict preemption

in a “field . . . the States have traditionally occupied.”

Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation

marks and citation omitted). Contrary to petitioner’s

assertion, the fact that Montana’s restoration damages remedy could result in additional cleanup beyond what EPA requires is not an obstacle to the

purposes or objectives of the federal scheme. Nor is it

impossible for petitioner to meet its obligations under

CERCLA and Montana law. And even if, in rare circumstances, CERCLA might preclude parts of a restoration damages plan under principles of conflict

preemption, petitioner would not be entitled to the relief it seeks here: a grant of summary judgment on the

basis that the statute categorically bars any and all

private claims for restoration damages available under Montana law.

------------------------------------------------------------------

ARGUMENT

It is difficult to conjure more traditional areas of

state concern than the regulation of real property and

the protection of natural resources within a State’s borders. As this Court has acknowledged, States in their

sovereign capacity have “an interest independent of

and behind the titles of [their] citizens, in all the earth

and air within [their] domain. [They have] the last

word as to whether [their] mountains shall be stripped

of their forests and [their] inhabitants shall breathe

pure air.” Massachusetts v. E.P.A., 549 U.S. 497, 518–19

(2007) (quoting Georgia v. Tennessee Copper Co., 206

U.S. 230, 237 (1907)). In addition, “it has been long established that the individual States have the authority

to define the limits of the lands held in public trust and

to recognize private rights in such lands as they see

fit.” Phillips Petroleum Co. v. Mississippi, 484 U.S. 469,

475 (1998).

Where (as here) “Congress has legislated . . . in a

field which the States have traditionally occupied,” this

Court “assum[es] that the historic police powers of the

States were not to be superseded by [a] Federal Act

unless that was the clear and manifest purpose of Congress.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quotation marks and citation omitted). This “presumption

against the pre-emption of state police power regulations,” Cipollone v. Liggett Group, 505 U.S. 504, 518

(1992), applies not only to the “question whether Congress intended any pre-emption at all” but also “to

questions concerning the scope of its intended invalidation of state law,” Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996).

CERCLA reflects no “manifest purpose” to effect

the sweeping preemption urged by petitioner. To the

contrary, the statute’s text and background confirm

Congress’s considered legislative judgment that States

play an important role in addressing, responding to,

and remediating environmental disasters. Petitioner’s

preemption arguments invite this Court to secondguess that judgment and to ignore CERCLA’s text, purpose, and extensive legislative history in the process.

Congress specifically considered and failed

to enact the very sort of preemption petitioner describes

CERCLA was the culmination of a multi-year,

multi-Congress effort to address releases of hazardous

substances. Throughout that effort, members of Congress intensely debated the proper role for the States

in addressing harm from contaminated sites. What

emerged from those efforts is a statute that specifically

preserves the States’ traditional authority to respond

to environmental disasters while also empowering the

Federal Government to aid in that effort.

A. Early legislative efforts to address hazardous waste releases failed because the

House and Senate were unable to reach

agreement on preemption

1. In the 95th Congress (which lasted from January 3, 1977, until January 3, 1979), the House and

Senate considered multiple bills that would have addressed liability and compensation for oil spills and

releases of hazardous substances. Some of these bills

contained broad preemption provisions that would

have had the sweeping effect petitioner urges here.

Others, in contrast, contained savings clauses like

those that eventually made their way into CERCLA.

a. At least two bills the 95th Congress considered included language that would have expressly

preempted state laws. For example, a House proposal

to address oil spills stated: “Except as provided in this

title . . . no action may be brought in any court of the

United States, or of any State or political subdivision

thereof, for damages for an economic loss described in

[the bill], a claim for which may be asserted under this

title.” H.R. 6803, sec. 110(a), 95th Congress, 2d Sess.

(1978). A Carter Administration proposal contained a

nearly identical preemption provision, stating that

“[n]o action may be brought in any court of the United

States or of any State or political subdivision thereof,

for damages for an economic loss or cost described in

. . . this title, a claim for which may be asserted under

this title.” S. 1187, sec. 110(a), 95th Congress, 2d Sess.

(1978).

b. In contrast, two Senate bills contained no

preemption provisions. Instead, those bills specifically

disclaimed preemption using language similar to that

ultimately adopted in CERCLA. For example, Senate

Bill 2900 provided that “[n]othing in this Act shall be

construed or interpreted as preempting any State from

imposing any additional liability or requirements with

respect to the discharge of oil or hazardous substances

within such state.” S. 2900, sec. 7(a), 95th Congress, 2d

Sess. (1978) (as introduced Feb. 6, 1978). Similarly,

Senate Bill 2803 stated: “Except as provided [herein]

this Act shall not be interpreted to preempt the field

of liability or to preclude any State from imposing additional requirements or liability for damages and

cleanup costs, within the jurisdiction of such State,

resulting from a discharge of oil.” S. 2803, sec. 18(a),

(b), 95th Congress, 2d Sess. (1978) (as reported by

the Committee on Commerce, Science, and Technology).

Both Senate bills included provisions that would

have barred the States from demanding contributions

to state funds maintained for the same purpose as

the federal fund. See S. 2900, sec. 7(b)(1) (as introduced) (barring “contribut[ions] to any public fund the

purpose of which is to pay compensation for loss or

damages resulting from discharge of oil or hazardous

substance”); see also S. 2803, sec. 18(b), (as reported by

the Committee on Commerce, Science, and Technology)

(prohibiting states from mandating “contribut[ions] to

any fund . . . the purpose of which is to pay compensation for any loss which may be compensated under this

Act”). Senate Bill 2900, however, would have preserved

existing state funds. S. 2900, sec. 7(b)(2).

2. Debates over preemption took center stage

as Congress considered the proposed bills. The Chairman of the relevant subcommittee of the Senate Committee on Environment and Public Works identified

preemption of state laws as the first of several questions warranting a “concentrated look” in connection

with the superfund legislation. See Hearing Before

the Subcommittee on Environmental Pollution of the

Committee on Environment and Public Works on S.

2900, United States Senate, 95th Cong., 2d Sess., at 1

(Apr. 17, 18, and May 24, 1978) (S. 2900 Hearing). Consistent with the Chairman’s statement, witnesses

hotly debated the appropriate role for state laws in

the new federal scheme. See generally id.;3 see also

Sen. Rep. 95-1152, 95th Cong., 2d Sess., at 20 (Aug. 25,

1978) (Senate Report 95-1152) (“[P]reemption is perhaps the most difficult and sensitive issue raised by a

Federal liability and compensation regime. . . . The

Committee received more testimony, more correspondence, and more opinions on this single issue than on

any other.”).

On one side, the Executive Branch and industry

groups pushed hard for broad federal preemption. The

Carter Administration highlighted the preemptive effect of its bill (S. 1187) and the House bill (H.R. 6803),

noting: “What these bills do preempt are actions under

State law, whether in State or Federal court, that could

be brought under this act.” S. 2900 Hearing at 5. Such

preemption, the Administration asserted, was “essential to a truly comprehensive nationwide . . . pollution

liability and compensation system” and “[a]ny other

less comprehensive preemption scheme w[ould] only

add to the chaos of State and Federal laws on this subject.” Id. Industry witnesses likewise complained about

the express lack of preemption in Senate Bills 2803

and 2900, asserting “that conflicting Federal, State and

Although these statements and testimony were presented

at a hearing ostensibly dedicated to Senate Bill 2900, witnesses

addressed the various competing bills under consideration.

local laws and regulations reduce the effectiveness of

cleanup programs and compensation plans.” S. 2900

Hearing at 764. While acknowledging that “all of the

referenced bills seek to establish a comprehensive federal system of liability, defenses and settlement of

claims,” industry witnesses noted that “only the Administration Bill . . . and the House bill . . . establish

the primacy of the Federal Regime.” Id.4

On the other side of the ledger, the States were

equally committed to ensuring that the preemption

provisions of the House bill and the Administration bill

did not become law. As Virginia’s Governor explained,

the Commonwealth “has a direct interest in regulating conduct that can injure or destroy coastal resources. . . . If federal law were to preempt State

authority in this area, the deterrent effect of State regulation would be severely weakened or lost.” S. 2900

Hearing at 706.

Representatives from Maryland echoed that sentiment, telling members of Congress that “the issue of

See also id. at 248 (industry association arguing that “oil

spill pollution liability should be governed exclusively by Federal

law”); id. at 583 (“States should be totally preempted from legislating or regulating in this oil spill and cleanup fund area. Their

efforts are duplicative, conflict with Federal law, are uneconomical, and for the added expense, provide no additional or improved

environmental protection than we can provide under uniform national law.”); id. at 606 (“In the field of pollution legislation, we

feel that preemption by the Federal Government is one of the

most pressing needs. Underwriters have found it impossible to

provide insurance coverage to meet all of the varying standards

and limits of liability provided in the laws of the several States.”).

preemption of state law is of prime concern.” S. 2900

Hearing at 692. “States . . . with the personnel and

equipment resources to assume the responsibilities of

rapid response,” Maryland asserted, “should be permitted to exercise the capability to the fullest.” Id. North

Carolina likewise “oppose[d] total federal preemption

of state law in these matters,” explaining that “[a]ny

federal act on oil spill liability should . . . allow for direct recovery by the state without reference to limitations set by federal law.” Id. at 703.

California and New Jersey specifically objected

to provisions preempting contributions to state funds.

Both States agreed, however, that “[s]uch a double recovery prohibition would . . . appear preferable to the

additional preemption language which appears in [the

House bill] . . . [and] states that[,] except as provided

by the bill[,] no action may be commenced in state or

federal court for damages for an economic loss, a claim

for which may be asserted under the bill.” S. 2900

Hearing at 647; see also id. at 477 (New Jersey noting

its support for S. 2900, which called for the lowest level

of preemption); see also id. at 822 (representatives

from New York stating: “We are . . . impressed with the

limited preemption of State Programs (especially the

preservation of existing State compensation funds)” in

S. 2900).

3. Months after the hearings, the Senate Committee on Environment and Public Works reported out

a revised version of Senate Bill 2803 “amended with

the text of S. 2900.” Senate Report 95-1152 at 2. The

amended bill retained the savings clause originally

found in Senate Bill 2900. See S. 2803, sec. 7, 95th

Cong. 2d Sess. (1978) (as amended Aug. 25, 1978)

(“Nothing in this Act shall be construed or interpreted

as preempting any State from imposing any additional

liability or requirements with respect to the discharge

of oil or hazardous substances within such State.”).

The bill, however, omitted the provision prohibiting

States from mandating contributions to their own

funds. See Senate Report 95-1152 at 22. Describing

that decision, and explaining its unwillingness to

adopt the sort of broad preemption advocated by certain stakeholders, the Committee noted:

[P]reemption is a superficially attractive concept, especially when couched in terms of industries which are imbued with interstate

commerce like merchant shipping. But close

examination reveals it as an argument rejected as flawed and dangerous in the adoption of the federal system 200 years ago.

Neither the circumstances nor dangers have

changed so much since that time that the

Committee is now willing to embrace an authoritarian Federal regime.

Id. (quotation marks omitted).

Ultimately, the divide between the House and the

Senate bills over preemption proved insurmountable

in the 95th Congress. Speaking to the fate of the

House’s oil spill measure (H.R. 6803), one Member explained that “[t]he bill died” for two reasons: “because

[it] did not address hazardous substances pollution

issues,” and because “the Senate would not accept

preemption of State programs which duplicated the

Federal law.” Committee Print, A Legislative History of

the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (Superfund), Public

Law 96-510, Vol.2, at 942 (1983) (CERCLA Legislative

History).

B. The Congress that enacted CERCLA made

a deliberate choice not to preempt state

laws

Like its predecessor, the 96th Congress considered

several competing proposals involving superfund legislation, each of which took a different approach to the

preemption question. Despite the growing consensus

in favor of federal legislation to address environmental

contamination, preemption remained a sticking point

for lawmakers that was only resolved when the House

agreed to pass the Senate’s less preemptive version of

CERCLA.

1. As had been true in the 95th Congress, the

House considered a bill with broad preemptive effect.

H.R. 85 was described by its sponsor as “similar to [the

bill] passed by the House during the last Congress.”

CERCLA Legislative History Vol.2 at 470. Indeed, H.R.

85 contained the same preemption provision as its predecessor (H.R. 6803), stating that “[e]xcept as provided

in this title . . . no action may be brought in any court

of the United States, or of any State or political subdivision thereof, for damages for an economic loss described in [the bill], a claim for which may be asserted

under this title.” H.R. 85, sec. 110(a), 96th Cong., 2d

Sess. (1980). H.R. 85 also precluded duplicate contribution obligations, providing that “no person may be required to contribute to any fund, the purpose of which

is to compensate for such a loss, nor to establish or

maintain evidence of financial responsibility relating

to the satisfaction of a claim for such a loss.” Id.

There was no mistaking the preemptive intent of

H.R. 85. As the Committee that reported on the bill explained, “the patchwork of oil spill liability and compensation laws already existing on Federal and State levels,

and those now contemplated, can only create excessive

bureaucracies and a quilt of paperwork, all to the detriment of everyone.” Id. (quotation marks omitted).

Another superfund bill, this one addressing inactive hazardous waste sites, also passed the House in

the 96th Congress. Unlike H.R. 85, H.R. 7020 included

no express preemption language. Even without such

language, some members criticized the bill’s expansion

of EPA’s powers, with one suggesting that it made EPA

“the czar over every hazardous waste site in the country.” CERCLA Legislative History Vol.2 at 299. Amendments to restrict EPA’s powers were rejected, including

one that would have permitted Congress to veto any

regulations the agency issued. Id. at 371, 373.

2. The Senate grappled with two other bills on

its way to passing CERCLA and, consequently, with

two other approaches to preemption.

The Carter Administration submitted a new proposal addressing oil spills and active and inactive

hazardous waste sites.5 Like its prior proposal (S.

1187), the Administration’s new bill (S. 1341) included

an express preemption provision that closely tracked

H.R. 85’s: “No action may be brought in any court of

the United States or of any State or political subdivision for damages for an economic loss or cost [for spills

of oil or hazardous waste] . . . a claim for which may be

asserted under this title.” S. 1341, sec. 612(a), 96th

Cong., 2d Sess. (1980). The Administration’s bill also

would have precluded double recovery and prevented

States from demanding contribution to any fund designed to compensate for losses addressed in the federal legislation. Id. It did not, however, preempt State

liability schemes with respect to inactive or abandoned

hazardous waste sites, and expressly reserved the

States’ authority to raise revenue for environmental

cleanups through taxes. Id. § 612(b). Recognizing

that preemption “goes against the grain of EPA and

[the Senate] Committee [on Environment and Public

Works]”, the Administration described its proposal as

a “judicially balanced attempt to tackle a problem of

national dimension without intruding into areas of legitimate State concern.” CERCLA Legislative History

Vol.1 at 63, 85.

Unlike the Administration’s bill, S. 1480 did not

address oil spills. Likewise, the bill did not preempt

state law. Instead, the bill contained a savings clause

that mirrored what would become part of CERCLA. It

provided: “[n]othing in this Act shall be construed or

The Administration’s proposal also was introduced in the

House. CERCLA Legislative History Vol.2 at v.

interpreted as preempting any State from imposing

any additional liability or requirements with respect to

the discharge of hazardous substances within such

State.” S. 1480, sec. 8, 96th Cong., 2d Sess. (1980). A factsheet submitted with the bill described the preemption

provision succinctly: “No State would be preempted

from imposing additional liability or stricter hazardous

substance laws.” CERCLA Legislative History Vol.1 at

151.

3. a. The 1980 elections complicated (and almost

derailed) legislative efforts to establish a superfund.

Facing an upcoming change in partisan control of the

chamber and the potential “loss of the entire effort, the

Senate staged a carefully (though hurriedly) negotiated scenario, fully orchestrated by the leadership of

both parties.” Frank P. Grad, A Legislative History of

the Comprehensive Environmental Response, Compensation, and Liability (Superfund) Act of 1980, 8 Colum.

Envtl. Law J. 1, 19 (1982). Though the bill presented to

the Senate for approval bore the name of H.R. 7020, it

was a combination of various proposals considered in

the preceding years.

As relevant here, the savings clause originally

found in S. 1480 was adopted into the new bill without

revision. See CERCLA Legislative History Vol.1 at 639.

Following the savings clause, a new subsection was

added that was adapted from H.R. 85 and other bills:

“Except as provided in this Act, no person may be required to contribute to any fund, the purpose of

which is to pay compensation for claims for any costs

of response or damages or claims which may be

compensated under this title.” Id. at 639–40. Like prior

bills, however, the revised bill clearly stated that

States were not precluded from “imposing a tax or fee

upon any person or upon any substance in order to finance the purchase or prepositioning of hazardous

substance response equipment or other preparations

for the release of hazardous substances.” Id. at 640.6

In keeping with its pattern of resisting the House’s

efforts to expand federal authority at the expense of

the States, the Senate resurrected the failed amendment to H.R. 7020 limiting EPA’s regulatory authority

by providing a legislative veto. Grad, supra at 19; see

also CERCLA Legislative History Vol.1 at 677. Under

the revised bill, no “rule or regulation” promulgated

under the Act “shall . . . become law if . . . both Houses

of Congress adopt a concurrent resolution . . . disapprov[ing] the rule or regulation.” CERCLA Legislative

History Vol.1 at 677; see also 42 U.S.C. § 9655.

b. When transmitting the bill to the House, Senate leaders made clear no changes would be tolerated.

The bill presented, they explained, “was the best bill

we could pass. Had we changed a comma or a period,

the bill would have failed.” CERCLA Legislative History Vol.1 at 774–75. “With the evaporation of the

It was at this point in the legislative process that CERCLA’s other savings clause was added to the bill. As passed by the

Senate, the final bill included a provision stating, “[n]othing shall

affect or modify in any way the obligations or liabilities of any

person under other Federal or State law, including common law,

with respect to releases of hazardous substances or other pollutants or contaminants.” CERCLA Legislative History at 675–76.

balance of interests which permitted us to go to the

Floor in the first place, amendments to the bill will kill

it if it is returned to the Senate.” Id. Demonstrating

once again the primacy of preemption in the debate

over superfund legislation, Senate leaders explained

that lack of agreement “with preemption provisions”

had prevented the Senate from including a title addressing oil spills. Id.

Faced with passing the Senate version of the bill

or nothing at all, the House fell in line. The distinction

between the preemption provision of the Senatepassed bill and H.R. 85 did not go unnoticed, however.

See CERCLA Legislative History Vol.1 at 786. As one

Member posited in describing the “serious and technical problems with the bill,” “[p]reemption of State liability laws” in the final enacted legislation “is much

weaker than . . . [in] H.R. 85.” Id.7

The 1986 amendments to CERCLA further weakened its

preemptive effect. In Exxon v. Hunt, 475 U.S. 355 (1986), this

Court found a tax imposed by the New Jersey Spill Compensation

and Control Act preempted by the provision of CERCLA barring

States from mandating contributions to their own funds. In response, Congress repealed that provision. As one Senator explained:

CERCLA, as enacted in 1980, contained only one arguably preemptive provision, which was section 114(c).

[The 1986 amendments] repealed even that provision

due to its misconstruction by the U.S. Supreme Court.

Thus, the law as amended . . . will leave unalloyed the

statement contained in 114(a) that—“Nothing in this

act shall be construed or interpreted as preempting

any State from imposing any additional liability or requirements with respect to the release of hazardous

II.

Petitioner’s arguments for conflict preemption are without merit

Petitioner does not (and cannot) argue that Montana’s restoration damages remedy is expressly preempted by CERCLA. See Pet. Br. 40–41. Moreover,

petitioner admits, as it must, that CERCLA’s savings

clauses “rule out field preemption.” Id. at 25. Nonetheless, petitioner maintains that state law is preempted

by implication, both because state law “poses monumental obstacles to CERCLA’s implementation” and

because state and federal law are so incompatible that

compliance with both is “impossible.” Id. at 40; see also

U.S. Br. 27–32. But the history of CERCLA reveals that

Congress not only declined to expressly preempt state

law, it made a deliberate and calculated decision to preserve it. Accordingly, petitioner cannot overcome the

“presumption against . . . pre-emption” established by

this Court’s precedents, Cipollone v. Liggett Grp., Inc.,

505 U.S. 504, 518 (1992), let alone demonstrate that

CERCLA has the sweeping (indeed, field-preemptionlike) effect petitioner urges.

substances within such State.” 132 Cong. Rec. 33475

(Oct. 17, 1986) (Sen. Stafford).

If that were not enough, Congress added another provision

expressly disclaiming any intent to preempt state law. Having included a time bar on claims in the amendments, Congress provided that “[t]his Act does not affect or otherwise impair the

rights of any person under Federal, State or common law, except

with respect to the timing of review . . . or as otherwise provided

in section 309 (relating to actions under State law).” See Pub. L.

99-499, Title II, § 206, 100 Stat. 1703 (1986); 42 U.S.C. § 9659(h).

A. Montana’s restoration damages remedy

does not create an “obstacle” to fulfillment of CERCLA’s purpose

Petitioner contends that CERCLA impliedly preempts respondents’ cause of action because that action

“actually conflicts with federal law” by “stand[ing] as

an obstacle to the accomplishment and execution of the

full purposes and objectives of Congress.” Pet. Br. 47

(citation and alterations omitted). Put simply, petitioner contends that any state-law remedy that differs

from an EPA-prescribed cleanup action is preempted.

Id. at 48–51; see also U.S. Br. 28–31. But that contention cannot be squared with the clear congressional

intent revealed in CERCLA’s text (particularly its savings clauses) and the process leading to its passage.

1. In enacting CERCLA, Congress was well

aware that its legislation entered a “field in which the

States have traditionally occupied.” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947); accord CTS

Corp. v. Waldburger, 573 U.S. 1, 18–19 (2014) (applying

principle in CERCLA case). As described above, during

the legislative process, Congress considered existing

state regulatory schemes and debated whether and to

what extent such laws would be preempted by the new

federal statute. See Part I, supra (describing consideration of testimony from State representatives); see also

Senate Report 95-1152 at 22 (noting that preemption

of state laws would upend “basic philosophical and

judgment issues which go to the heart of a State’s right

to exercise power within its borders”). Accordingly, this

Court “start[s] with the assumption that the historic

police powers of the States were not . . . superseded by

[CERCLA] unless that was the clear and manifest purpose of Congress.” Rice, 331 U.S. at 230; see also Bates

v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) (presumption that “Congress does not cavalierly pre-empt

state-law causes of action.”) (quotation marks and citation omitted).8

2. Petitioner falls far short of that mark. In attempting to manufacture a “clear and manifest purpose” to preempt state law, petitioner extrapolates

from CERCLA’s various provisions, purporting to divine Congress’s overriding aim. See Pet. Br. 48–50; see

also U.S. Br. 28. But in seeking to ascertain Congress’s

intent regarding preemption, “[t]he only thing a court

can be sure of is what can be found in the law itself.”

Virginia Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1908

(2019) (opinion of Gorsuch, J.). “A freewheeling judicial

inquiry into whether a state statute is in tension with

federal objectives would undercut the principle that it

is Congress rather than the courts that pre-empts

state law.” Gade v. National Solid Wastes Mgmt. Ass’n,

505 U.S. 88, 111 (1992) (Kennedy, J., concurring). For

that reason, any “[e]vidence of pre-emptive purpose”

must be found “in the text and structure of the statute

at issue,” CSX Transp., Inc. v. Easterwood, 507 U.S. 658,

664 (1993), and “[a] court should not find pre-emption

By contrast, two of the cases on which petitioner relies (at

47–48) involved subject matter that is distinctly federal in nature.

See Arizona v. United States, 567 U.S. 387 (2012) (immigration);

Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000)

(foreign relations).

too readily in the absence of clear evidence of a conflict.” Geier v. American Honda Motor Co., Inc., 529 U.S.

861, 885 (2000).

In any event, the statute petitioner describes is

not the one Congress enacted. Contrary to the uniquely

federal scheme petitioner envisions, CERCLA’s text,

background, and context make clear that Congress rejected the broad preemptive effect petitioner claims,

and did so with full appreciation of the potential consequences of that decision. See Part I, supra.9 As this

Court has explained (in a case also involving CERCLA),

“[t]he case for federal pre-emption is particularly weak

where Congress has indicated its awareness of the operation of state law in a field of federal interest, and

has nonetheless decided to stand by both concepts

and to tolerate whatever tension there is between

them.” CTS Corp., 573 U.S. at 18 (2014) (citation and

alterations omitted) (narrowly construing the express

preemption provision in 42 U.S.C. § 9658).10

As respondents explain, numerous textual indicators in

CERCLA point against preemption. See Respondents’ Br. 61–62

(citing 42 U.S.C. § 9614(b) (reducing the amount recoverable under state law for “removal costs” by “compensation for removal

costs or damages or claims” recovered under CERCLA), and 42

U.S.C. § 9658(a)(1) (expanding availability of state-law tort actions by extending applicable statute of limitations)).

For that reason, the process leading to CERCLA’s passage

would undermine petitioner’s implied preemption defense even in

the absence of any express savings clauses. Congressional “silence on [an] issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress

did not intend” for federal preemption. Wyeth v. Levine, 555 U.S.

555, 575 (2009).

For similar reasons, petitioner errs in suggesting

that implied conflict preemption exists in every situation where state law can be seen as being in tension

with some broad congressional objective. Federal objectives (even unquestionably important ones) are rarely

“unyielding.” Spriestma v. Mercury Marine, 537 U.S. 51,

70 (2002). Indeed, this Court has acknowledged that,

even where a given subject “is the exclusive concern of

the federal law” (unlike here), Congress may draw “the

conclusion that a state may nevertheless award damages based on its own law of liability.” Silkwood v. KerrMcGee Corp., 464 U.S. 238, 256 (1984). Where “Congress intended to stand by both concepts and to tolerate whatever tension there was between them,” this

Court has declined to “second-guess that conclusion.”

Id. at 256, 258.

So too here. Although petitioner envisions a Congress singularly focused on setting up a “comprehensive federal scheme” with EPA at the helm (Pet. Br. 47),

it ignores the multitude of other aims apparent in

CERCLA’s text and history, including (to list just two)

“assur[ing] that the costs of chemical poison releases

are borne by those responsible for the releases” (see,

e.g., 42 U.S.C. §§ 9604, 9607) and providing “an opportunity . . . for victims to receive prompt and adequate

compensation” (see, e.g., 42 U.S.C. §§ 9608, 9612). CERCLA Legislative History Vol.1 at 685; see also Burlington Northern & Santa Fe Ry. Co. v. United States, 556

U.S. 599, 602 (2009) (“[CERCLA] was designed to . . .

ensure that the costs of such cleanup efforts were

borne by those responsible for the contamination.”)

(quotation marks omitted). In attempting to elevate its

preferred purpose over all others, petitioner engages in

exactly the sort of second-guessing this Court has

warned against.

3. If there were any doubt that Congress’s “purpose” was not to empower the federal government to

the exclusion of the States, CERCLA’s savings clauses

would erase it. As explained previously, Congress:

(i) specifically declined to enact provisions that would

have prevented States from imposing additional liability and requirements on entities that release hazardous

substances; and (ii) specifically preserved obligations

created by State statutory and common law. See 42

U.S.C. §§ 9614(a), 9652(d), 9659(h).

Petitioner dismissively waves its hand at CERCLA’s savings clauses, asserting that they “contain no

indication that Congress preserved state laws that

would require a party to violate federal law or destroy

the integrity of the federal regulatory scheme.” Pet. Br.

53; see also U.S. Br. 31–32. That argument boils down

to little more than the truism that the Supremacy

Clause remains in effect, savings clause or not.

But just as CERCLA’s savings clauses “do[ ] not

bar the ordinary working of conflict pre-emption principles,” Geier, 529 U.S. at 869, those clauses likewise

may not be ignored when preemption principles are applied. Far from disregarding the savings clauses at issue, the decisions on which petitioner relies engaged in

a close analysis of the statutory text (and, in some

cases, legislative history) to determine whether or not

preemption was consistent with Congress’s intent. See,

e.g., Geier, 529 U.S. at 869–72; id. at 869 (reading “the

language of the . . . clause” to “bar a special kind of defense” rather than to disclaim preemption of all state

laws based in part on use of words “[c]ompliance” and

“does not exempt”). After all, “[t]he purpose of Congress

is the ultimate touchstone in every pre-emption case,”

and “Congress’ intent, of course, primarily is discerned

from the language” of the statute. Medtronic, Inc. v.

Lohr, 518 U.S. 468, 486 (1996) (citation and alterations

omitted).

Applied here, that analysis makes clear that CERCLA does not preempt Montana’s restoration damages

remedy in the sweeping manner petitioner claims. As

CERCLA’s text instructs, the statute “shall [not] be

construed or interpreted as preempting any State

from imposing additional liability or requirements

with respect to the release of hazardous substances

within such State.” 42 U.S.C. § 9614(a); accord CERCLA Legislative History Vol.1 at 151 (“No State would

be preempted from imposing additional liability or

stricter hazardous substance laws.”). The statute further provides that “[n]othing in this chapter shall affect or modify in any way the obligations or liabilities

of any person under other Federal or State law, including common law, with respect to releases of hazardous

substances or other pollutants or contaminants.” 42

U.S.C. § 9652(d); id. § 9659(h) (“This chapter does not

affect or otherwise impair the rights of any person under Federal, State, or common law except with respect

to the timing of review as provided in section 9613(h)

of this title or as otherwise provided in section 9658

of this title (relating to actions under State law).”).

Under CERCLA’s plain terms, the “additional liability” created by Montana law is not preempted, petitioner’s “obligations [and] liabilities” under state law

are unaffected by the federal scheme, and respondents’ rights are not “impair[ed].”11

B. Compliance with federal and Montana

law is not “impossible”

Like obstacle preemption, “[i]mpossibility preemption is a demanding defense.” Wyeth, 555 U.S. at

573. “The underlying question” when assessing an “impossibility pre-emption defense is whether federal law

. . . prohibited the [actions] that would satisfy state

law.” Merck Sharp & Dohme Corp. v. Albrecht, 139

S. Ct. 1668, 1678 (2019); see also Geier v. American

Honda Motor Co., Inc., 529 U.S. 861, 873 (2000) (impossibility arises when “state law penalizes what federal

law requires”). As this Court has “cautioned many

times before, the possibility of impossibility [is] not

Petitioner’s tortured reading of CERCLA’s savings clauses

(Pet. Br. 54) is no more persuasive than its preemption argument.

By disavowing preemption of “additional liability or requirements,” 42 U.S.C. § 9614(a), Congress plainly contemplated state

laws permitting liability or imposing obligations above and beyond what federal law demands. Had Congress intended what

petitioner suggests—preemption of any claims falling within the

purview of the federal scheme—it would have adopted the broad

preemption provisions of H.R. 85 and other bills. See Part I, supra. That Congress rejected that approach in favor of an express

savings clause is clear evidence that petitioner’s reading is incorrect.

enough.” Merck, 139 S. Ct. at 1678 (internal quotation

marks and citation omitted).

1. Petitioner misapprehends both its state-law

duties and its burden in establishing an impossibility

preemption defense. Petitioner claims that “federal law

forbids [petitioner] from fulfilling its alleged state-law

obligations” because “[t]o satisfy respondents’ demand,

Atlantic Richfield would have had to restore their

property to pre-1884 conditions, or pay for respondents

to perform that restoration themselves.” Pet. Br. 43. But,

as the Montana Supreme Court observed, respondents

were “not seeking to enjoin any of EPA’s activities, or

requesting that EPA be required to alter, delay, or expedite its plan in any fashion.” Pet. App. 13a. Respondents were “simply asking to be allowed to present their

own plan to restore their own private property to a jury

of twelve Montanans who will then assess the merits

of that plan.” Id. The restoration damages at issue involve petitioner contributing money towards a fund;

they do not require petitioner to perform the restoration on the landowners’ property. The only question is

whether petitioner may satisfy any of the remedies

available to the landowners under state law—including contributing money towards a fund for the restoration damages that the landowners seek—without

running afoul of federal law. The answer is plainly yes.

Petitioner claims “that it is impossible for Atlantic

Richfield to simultaneously discharge its obligations

to EPA and avoid being on the hook for state-law

restoration damages.” Pet. Br. 45 (emphasis added).12

But state law does not require petitioner to “avoid being on the hook for state-law restoration damages” as

petitioner describes. Petitioner cannot manufacture

impossibility preemption by attempting to avoid the

very relief respondents seek.13 And because federal law

does not prohibit petitioner from paying the restoration remedy that would satisfy state law, there is nothing “impossible” about its compliance with both

schemes.

2. Respondents explain in their brief why petitioner is not entitled to the assumption that respondents’ remediation plans are inconsistent with EPA’s

plan. See Resp. Br. 52. What is more, even if CERCLA

might preclude parts of a restoration damages plan

under principles of conflict preemption in rare circumstances, that would not be a basis for the relief

See also id. (contending that the landowners’ remedial

plan “vividly illustrates that it is impossible for Atlantic Richfield

to simultaneously discharge its obligations to EPA and avoid being on the hook for state-law restoration damages” because “[t]o

avoid state-law restoration damages . . . Atlantic Richfield would

have had to disregard EPA’s decision and install three miles’

worth of underground trenches”) (emphasis added)).

Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 480

(2013), does not support petitioner’s broad assertion that “paying

damages under state law” will still leave it “stuck between two

logically incompatible obligations.” Pet. Br. 42. The impossibility

in Bartlett arose from the inability of a drug manufacturer “to

comply with both its state-law duty to strengthen the warnings

on [a drug’s] label and its federal-law duty not to alter [the drug’s]

label.” Bartlett, 570 U.S. at 480. In other words, complying with

state law would have forced the manufacturer to violate federal

law. For the reasons stated in the text, that is not the case here.

petitioner seeks here: a grant of summary judgment on

the theory that CERCLA categorically bars any restoration damages remedy, see Pet. Br. 19–20, 40–41, even

those that merely result in additional cleanup beyond

what EPA requires.

Moreover, Justice Baker explained in her concurrence below that petitioner could demonstrate at trial

that respondents’ “proposed remedy conflicts with or

requires modification of measures [Atlantic Richfield]

already has taken to clean up the site.” Pet. App. 22a.

And, as the United States admits, if the landowners’

“claims for restoration damages are allowed to proceed” in state court “and the suit culminates in a

monetary award, EPA could seek to prevent [the landowners] from using those funds to carry out any remedial actions that the agency believed would violate

federal law.” U.S. Br. 31. Hence, to the extent there is a

genuine threat of impossibility should a Montana court

award restoration damages here, there will be ample

means to prevent it without stopping respondents’ suit

at the threshold.

CERCLA’s language, purpose, and legislative history confirm that Montana’s restoration damages remedy is not preempted by federal law. Petitioner’s

contrary argument is premised on a view of the statute

that bears little similarity to the one Congress passed

and has far more in common with ones that it did not.

In keeping with precedents requiring a clear legislative statement to overcome the presumption against

preemption, this Court should reject petitioner’s effort

to rewrite CERCLA to suit its own ends.

------------------------------------------------------------------

CONCLUSION

The judgment of the Supreme Court of Montana

should be affirmed.

Respectfully submitted.

MARK R. HERRING

Attorney General

TOBY J. HEYTENS

Solicitor General

Counsel of Record

DONALD D. ANDERSON

Deputy Attorney General MICHELLE S. KALLEN

MARTINE E. CICCONI

Deputy Solicitors General

JESSICA MERRY SAMUELS

Assistant Solicitor General

ZACHARY R. GLUBIAK

Attorney

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-7240

solicitorgeneral@oag.state.va.us

October 22, 2019

(Counsel listing continues on next page)

XAVIER BECERRA

Attorney General of

California

LETITIA JAMES

Attorney General of

New York

WILLIAM TONG

Attorney General of

Connecticut

ELLEN F. ROSENBLUM

Attorney General of

Oregon

KATHLEEN JENNINGS

Attorney General of

Delaware

PETER F. NERONHA

Attorney General of

Rhode Island

CLARE E. CONNORS

Attorney General of

Hawaii

THOMAS J. DONOVAN, JR.

Attorney General of

Vermont

AARON M. FREY

Attorney General of

Maine

BRIAN E. FROSH

Attorney General of

Maryland

JIM HOOD

Attorney General of

Mississippi

GURBIR S. GREWAL

Attorney General of

New Jersey

BOB FERGUSON

Attorney General of

Washington

JOSHUA L. KAUL

Attorney General of

Wisconsin

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.