Reply 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, PETITIONER,

v.

GREGORY A. CHRISTIAN, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

REPLY BRIEF FOR PETITIONER

ROBERT J. KATERBERG

ELISABETH S. THEODORE

STEPHEN K. WIRTH

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

JONATHAN W. RAUCHWAY

SHANNON W. STEVENSON

DAVIS GRAHAM & STUBBS

LLP

1550 17th St., Suite 500

Denver, CO 80202

LISA S. BLATT

Counsel of Record

JOHN S. WILLIAMS

SARAH M. HARRIS

CHARLES L. MCCLOUD

MENG JIA YANG

THOMAS S. CHAPMAN

WILLIAMS & CONNOLLY LLP

725 Twelfth St., NW

Washington, DC 20005

(202) 434-5000

lblatt@wc.com

TABLE OF CONTENTS

Page

I.

This Court Has Jurisdiction ................................................ 2

II. Section 113 Requires Reversal ........................................... 3

III. Section 122(e)(6) Requires Reversal .................................. 7

A. Respondents Are PRPs .............................................. 7

B. Respondents Are Not “Contiguous

Landowners” .......................................................... 15

C. Remand Is Pointless ................................................. 16

IV. Preemption Principles Require Reversal........................ 17

A. Impossibility Preemption Applies ........................... 17

B. Obstacle Preemption Applies................................... 20

C. CERCLA’s Savings Clauses Do Not Bar

Preemption ............................................................. 23

Conclusion ...................................................................................... 25

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases:

Arceneaux v. Louisiana,

376 U.S. 336 (1964) (per curiam) ..................................... 2

Bandini Petroleum Co. v. Superior Court,

284 U.S. 8 (1931) ................................................................ 3

Burlington Northern & Santa Fe Railway

Co. v. United States,

556 U.S. 599 (2009) ............................................................ 7

Christian v. Atlantic Richfield Co.,

358 P.3d 131 (Mont. 2015)......................................... 15, 16

Cooper Industries, Inc. v. Aviall

Services, Inc.,

543 U.S. 157 (2004) ............................................................ 7

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ............................................................ 3

CSX Transporation, Inc. v. Easterwood,

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

Detroit & Mackinac Railway Co. v.

Michigan Railroad Commission,

240 U.S. 564 (1916) ............................................................ 3

Fisher v. District Court of Sixteenth

Judicial District,

424 U.S. 382 (1976) (per curiam) ................................. 2, 3

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) .......................................................... 24

Graham County Soil & Water

Conservation District v. United States

ex rel. Wilson,

559 U.S. 280 (2010) .......................................................... 12

Johnson v. United States,

559 U.S. 133 (2010) ............................................................ 6

Kennerly v. District Court of Ninth

Judicial District,

400 U.S. 423 (1971) (per curiam) ..................................... 2

iii

Page(s)

Cases—continued:

Key Tronic Corp. v. United States,

511 U.S. 809 (1994) ............................................................ 7

Mutual Pharmaceutical Co. v. Bartlett,

570 U.S. 472 (2013) .......................................................... 17

Pennsylvania v. Union Gas Co.,

491 U.S. 1 (1989) ................................................................ 8

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) .................................................... 19, 20

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) ........................................................ 8, 10

Sunburst School District No. 2 v. Texaco,

Inc., 165 P.3d 1079 (Mont. 2007).................................... 18

Texas & Pacific Railway Co. v. Abilene

Cotton Oil Co.,

204 U.S. 426 (1907) .......................................................... 24

United States v. Atlantic Research Corp.,

551 U.S. 128 (2007) ........................................................ 7, 9

United States v. Bestfoods,

524 U.S. 451 (1998) ............................................................ 7

Weston v. City Council of Charleston,

2 Pet. 449 (1829) ............................................................. 2, 3

Wyeth v. Levine, 555 U.S. 555 (2009) .................................. 19

Statutes, rules, and ordinances:

Anaconda-Deer Lodge County, Montana

Code of Ordinances ch. 24, art. XXX ............................ 14

40 C.F.R. § 300.430(f)(1)(i)(A) .............................................. 22

42 U.S.C.

§ 9601(9) .............................................................................. 9

§ 9601(24) .......................................................................... 14

§ 9601(40)(B) ........................................................ 10, 13, 16

§ 9605(h)(4)(a) .............................................................. 8, 10

§ 9606(a) ...................................................................... 11, 13

§ 9606(b)(2) ....................................................................... 11

iv

Page(s)

Statutes, rules, and ordinances—continued:

42 U.S.C. (continued)

§ 9607(a) .................................................................. 7, 12, 14

§ 9607(a)(1) ......................................................................... 9

§ 9607(a)(4)(B) .................................................................. 21

§ 9607(o)(2)(A) ............................................................ 10, 14

§ 9607(q)(1)(A)............................................................ 10, 15

§ 9607(q)(1)(A)(iii)............................................................ 16

§ 9607(q)(1)(A)(iv) ...................................................... 14, 16

§ 9607(q)(1)(A)(v) ....................................................... 14, 16

§ 9607(q)(1)(A)(viii).......................................................... 15

§ 9607(q)(1)(B).................................................................. 15

§ 9607(r)(1)............................................................ 10, 13, 16

§ 9613(a) .......................................................................... 3, 4

§ 9613(b) .............................................................................. 3

§ 9613(g) ............................................................................ 10

§ 9613(g)(1) ................................................................. 11, 12

§ 9613(g)(2)(A).................................................................. 11

§ 9613(h) .................................................................... 3, 6, 23

§ 9613(h)(1) ......................................................................... 6

§ 9614(b) ............................................................................ 21

§ 9617 ................................................................................. 20

§ 9619(c)(2)(D) .................................................................. 12

§ 9619(d) .............................................................................. 9

§ 9619(e)(1)(D).................................................................. 12

§ 9621 ................................................................................. 20

§ 9621(d)(1) ....................................................................... 22

§ 9622(a) .................................................................. 9, 21, 22

§ 9622(e)(1)(A) .................................................................... 8

§ 9622(e)(6) ................................................................... 7, 18

§ 9624(b)(2) ......................................................................... 9

§ 9658(a)(1) ....................................................................... 21

§ 9659(a) ............................................................................ 23

v

Page(s)

Statutes, rules, and ordinances—continued:

Mont. R. App. P.

6(6) ....................................................................................... 2

14(1) ..................................................................................... 2

14(3) ..................................................................................... 2

S. Ct. R. 15.2............................................................................ 15

Other authorities:

132 Cong. Rec. 28,441 (1986) .................................................. 6

Anaconda Smelter Superfund Site,

Anaconda Regional Water, Waste and

Soils Record of Decision (1998) ............................... 20

Summary of ATSDR’s Exposure

Investigation (2019),

https://bit.ly/2r13MQY ............................................. 22

Black’s Law Dictionary 1369 (5th ed. 1979) ....................... 19

Shapiro et al., Supreme Court Practice

§ 3.8 (11th ed. 2019) ........................................................... 3

In the Supreme Court of the United States

No. 17-1498

ATLANTIC RICHFIELD COMPANY, PETITIONER,

v.

GREGORY A. CHRISTIAN, ET AL., RESPONDENTS.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

REPLY BRIEF FOR PETITIONER

CERCLA does not bar nuisance or trespass suits,

compensatory damages, or even the punitive damages respondents seek. CERCLA draws the line at a state-law

restoration remedy that requires cleanups defying what

EPA has ordered. Sections 113(b) and (h) bar that remedy as a “challenge” to EPA’s remediation. Section

122(e)(6) bars that remedy because potentially responsible parties like respondents cannot “undertake any

remedial action” without EPA’s permission. And the Supremacy Clause bars that remedy because it conflicts with

petitioner’s federal-law obligations and would destroy

EPA’s ability to fulfill its statutory mandates to effectuate

comprehensive, site-wide cleanups that protect the community.

(1)

2

I.

This Court Has Jurisdiction

Respondents renew attacks on this Court’s jurisdiction, arguing that the decision below is non-final because

this Court’s reversal would not end all state-court litigation. Resps’ Br. 17-19, BIO 15. That approach flouts this

Court’s deference to state supreme courts’ characterizations of their proceedings. Fisher deemed a decision

resolving a Montana supervisory-writ proceeding “a final

judgment within [this Court’s § 1257] jurisdiction” because Montana makes such writs “available only in

original proceedings” that are “not equivalent to an [interlocutory] appeal.” Fisher v. Dist. Court of Sixteenth

Judicial Dist., 424 U.S. 382, 385 n.7 (1976) (per curiam);

see Kennerly v. Dist. Court of Ninth Judicial Dist., 400

U.S. 423, 424 (1971) (per curiam). Unlike an interlocutory

appeal, Mont. R. App. P. 6(6), the Montana Supreme

Court designates a supervisory-writ proceeding a selfcontained case, id. 14(1), (3). See Pet. App. 1a. Similarly,

Arceneaux v. Louisiana, 376 U.S. 336 (1964) (per curiam),

looked to Louisiana’s final-judgment rules to determine

whether the Louisiana Supreme Court’s denial of a writ

of prohibition and other remedies was a final judgment.

Id. at 338.

Respondents (at 20) are incorrect that supervisorywrit proceedings and their analogues are final only if they

involve outcome-determinative jurisdictional issues. This

Court’s rule is unqualified: when state courts issue such

writs, they initiate a separate suit and the ensuing judgment is final. E.g., Weston v. City Council of Charleston,

2 Pet. 449, 464-65 (1829). “The word ‘final,’” Chief Justice

Marshall explained, “appl[ies] to all judgments and decrees which determine the particular cause,” e.g., the writ

of prohibition, regardless whether “the right was finally

3

decided.” Id. at 464-65; see Bandini Petrol. Co. v. Superior Court, 284 U.S. 8, 14 (1931). Such writs do “not

determine the merits and end the litigation” in all cases.

Detroit & Mackinac Ry. Co. v. Mich. R.R. Comm’n, 240

U.S. 564, 570-71 (1916); see Shapiro et al., Supreme Court

Practice § 3.8, at 3-36 (11th ed. 2019). Regardless, the

§ 113 holding is jurisdictional and would “terminate[]

original proceedings in [the] state appellate court” if reversed. Fisher, 424 U.S. at 385 n.7.

The Court alternatively has jurisdiction under the

fourth exception of Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975). Restoration damages are a distinct claim,

Pet. App. 5a-6a, and reversal would dispose of the judgment below, Cox, 420 U.S. at 482-83. Failure to intercede

would debilitate federal policy. Pet. 30-36.

II.

Section 113 Requires Reversal

Section 113(b) gives federal district courts “exclusive

original jurisdiction over all controversies arising under”

CERCLA, “[e]xcept as provided in subsections [113](a)

and [113](h).” 42 U.S.C. § 9613(b). Sections 113(a) and

113(h) identify suits that even federal district courts cannot entertain, including § 113(h)’s bar on “any challenges”

to EPA’s remediation plans. Id. §§ 9613(a), (h). By definition, “challenges” to EPA’s plans are a subset of the

“controversies arising under” CERCLA that state courts

cannot hear. Br. 27-28; U.S. Br. 25. Respondents’ suit

seeking to supplant EPA’s remedy is a quintessential

challenge to EPA’s actions.

1. Respondents (at 27-28) insist that § 113 does not

identify “challenges” as a subset of “controversies arising

under” CERCLA because “an exception need not be ‘narrower than the corresponding rule.’”

Exceptions

4

sometimes reconcile two competing principles, as in respondents’ Eleventh Amendment hypothetical. Other

times, exceptions are narrower than the rule—as § 113’s

context illustrates. Section 113(b)’s rule of exclusive federal district-court jurisdiction over “controversies arising

under” CERCLA has two exceptions: §§ 113(a) and

113(h). Section 113(a) vests in the D.C. Circuit jurisdiction to review CERCLA regulations. 42 U.S.C. § 9613(a).

Whatever the contours of “controversies arising under”

CERCLA, requests to review regulations qualify. Similarly, § 113(h) bars federal jurisdiction over “any

challenges to” EPA response actions and “any order issued under” § 106(a). Respondents (at 32-33) agree that

review of orders issued under § 106(a) presents “controversies arising under” CERCLA. Every other exception

to § 113(b) refers to a type of controversy. It is implausible that Congress intended § 113(h)’s exception for

“challenges” to mean something else.

Indeed, respondents’ position implicitly acknowledges

the interrelationship between § 113(b) and § 113(h). Respondents (at 32) define “challenges” as “calling for

judicial review of EPA actions.” Such “challenges” would

necessarily be a subset of all “controversies arising under” CERCLA if respondents were correct (at 23-26) that

“controversies arising under” CERCLA parallel the arising-under test of 28 U.S.C. § 1331. Federal law would

always create, or be a necessary element of, the cause of

action for such “challenges.”

Respondents’ invocation of § 1331 is wrong regardless.

Nothing in § 113’s text, structure, or history requires construing §§ 113(b) and 1331 together. U.S. Br. 32-33.

Section 113(b) differs from § 1331 in fundamental ways.

Unlike § 1331, § 113(b) provides “exclusive original jurisdiction … without regard to the citizenship of the parties

5

or the amount in controversy.” Further, § 113(b) grants

federal-court jurisdiction “[e]xcept as provided in subsections (a) and (h).” Respondents’ position begs the

question whether those exceptions involve “controversies

arising under” CERCLA. No reason exists why Congress

would have wanted to protect EPA’s remedies from federal-court interference but not from state-court

interference.

Respondents (at 22-23, 28) are also incorrect that

§ 113(h) allows restoration remedies to proceed in federal

court under § 113(h)’s carve-out for suits where jurisdiction rests on “diversity of citizenship.” Under both sides’

readings, the diversity-jurisdiction provision is never implicated.

Under petitioner’s view, every § 113(h)

“challenge” that calls into question EPA’s remedy is a

“controversy arising under” CERCLA subject to exclusive federal jurisdiction. The presence of one diverse

party would not override the specific bar on “challenges”

in federal court. Likewise, respondents’ view—that

§ 113(b) adopts the § 1331 “arising under” standard and

that “challenges” mean suits contesting the legality of

EPA’s remedy—renders the diversity carve-out a nullity.

Any “challenge” is a “controversy arising under” CERCLA and presents a federal question.

Respondents’ cherry-picked legislative history (at 2931) suggests that some legislators understood that CERCLA would not prohibit traditional nuisance claims. That

history does not show that “challenges” cannot include

state-law-based claims. Respondents dismiss statements

undermining their position. For example, Senator Thurmond, chair of the drafting committee, explained that

§ 113(b) and § 113(h) ensure that “any controversy over a

response action … whether it arises under Federal law or

State law, may be heard only in Federal court, and only

6

under the circumstances provided.”

28,441 (1986).

132 Cong. Rec.

2. Respondents (at 31-32) argue that “challenges” under § 113(h) include only suits “contest[ing] the legality of

the EPA-ordered remedy.” That seismic shift from their

brief in opposition (BIO 24-25) abandons the linchpin of

the decision below, that a “challenge” is something that

interferes with ongoing removal or remedial action. Pet.

App. 11a. Respondents’ new position would permit courts

to order injunctions requiring warring cleanups that undo

what EPA ordered. That could not have been what Congress contemplated, which is presumably why no court

has adopted respondents’ reading. Nothing suggests

Congress departed from the ordinary understanding of

the word “challenge,” i.e., actions that question EPA’s

remedy. Br. 31; see Johnson v. United States, 559 U.S.

133, 138-40 (2010).

Respondents contend (at 32) that because all five exceptions under § 113(h) for permissible “challenges”

involve CERCLA enforcement actions, all “challenges”

must directly contest EPA’s orders. That premise is false;

these exceptions actually show the breadth of “challenges.” Section 113(h)(1), for instance, authorizes

private parties to sue other PRPs for cost recovery and

contribution claims. See 42 U.S.C. § 9613(h)(1). Those

suits are not enforcement actions, and they need not challenge EPA’s orders.

Respondents (at 33-35) claim that their “claims do not

depend on the invalidity of any EPA action.” But they extensively (at 7-10) accuse EPA of caring more about

cleanup costs than children. Their restoration remedy

presupposes that EPA’s cleanup is inadequate. Their

plan collaterally attacks EPA’s ongoing remediation at

every step, from digging up soil EPA wants undisturbed

7

to building unnecessary underground trenches. Br. 2829; U.S. Br. 20-21. In sum, respondents’ view of § 113 is

far-fetched: § 113 would bar formal attacks on EPA’s orders, but would not protect EPA’s ongoing cleanups even

from state laws mandating their physical destruction.

III.

Section 122(e)(6) Requires Reversal

CERCLA designates landowners within Superfund

sites (like petitioner and respondents) as “potentially responsible part[ies]” (PRPs) who cannot “undertake any

remedial action” without EPA’s authorization. 42 U.S.C.

§ 9622(e)(6). As PRPs, respondents need (but lack) EPA’s

approval to execute their remediation plan. Respondents’

remedy thus fails because they lack EPA’s authorization

to do what state law requires.

A. Respondents Are PRPs

1. Respondents, as “[o]wners” of contaminated land,

are “[c]overed persons.” 42 U.S.C. § 9607(a). Section

107(a) identifies various “[c]overed persons” who “shall be

liable” for the costs of EPA’s cleanups. Id. “Covered persons” do not stop being covered even if they establish

defenses and no longer “shall be liable.” Br. 36-40; U.S.

Br. 34-35. This Court and CERCLA equate PRPs with

“[c]overed persons” because the terms interchangeably

describe the class of persons CERCLA subjects to potential liability, even if no liability transpires.

This Court has repeatedly used the term “PRPs” to

mean those who may be liable for cleanup costs under

§ 107(a), i.e., “[c]overed persons.”1 Respondents (at 37Br. 32-33; U.S. Br. 33; Burlington N. & Santa Fe Ry. Co. v. United

States, 556 U.S. 599, 608-09 (2009); United States v. Atl. Research

Corp., 551 U.S. 128, 131-32, 134 n.2 (2007); Cooper Indus., Inc. v. Aviall Servs., 543 U.S. 157, 161 (2004); United States v. Bestfoods, 524

U.S. 51, 56 n.1 (1998); Key Tronic Corp. v. United States, 511 U.S.

1

8

39) say nothing rode on this language. But if PRPs and

covered persons differed, this Court presumably would

have said so, rather than misleading EPA and regulated

parties in six cases spanning three decades.

This Court was not asleep at the switch. CERCLA repeatedly identifies covered persons with PRPs. Section

122(e)(1)(A) describes “potentially responsible parties (including owners and operators and other persons referred

to in § [107(a)]).” 42 U.S.C. § 9622(e)(1)(A). Respondents

(at 44) dispute that “all individuals identified in Section

107(a) are necessarily [PRPs].” Nonsense: § 122(e)(1)(A)

refers without limitation to covered persons as PRPs. At

a minimum, § 122(e)(1)(A) shows that PRPs include

§ 107(a) “owners and operators”—i.e., respondents.2

Section 105(h)(4)(A) reinforces that owners and operators are necessarily PRPs. That provision lets EPA list

sites on the National Priorities List if a “State, as an

owner or operator or a significant contributor of hazardous substances to the facility, is a potentially responsible

party.” 42 U.S.C. § 9605(h)(4)(A). States are PRPs because they are “owner[s] or operator[s],” regardless

whether they polluted.

Or take § 122(a), which authorizes agreements between EPA and “any person (including the owner or

operator of the facility from which a release or substantial

809, 818 (1994); Pennsylvania v. Union Gas Co., 491 U.S. 1, 21-22

(1989), overruled on other grounds by Seminole Tribe v. Florida, 517

U.S. 44 (1996).

Respondents claim (at 44-45) they cannot be PRPs because EPA did

not satisfy § 122(e)(1)(A)’s notification requirements. Presumably,

EPA followed its longstanding policy of not seeking costs from landowners like respondents. U.S. Br. 34. Regardless, EPA’s actions

cannot override the statutory text.

2

9

threat of release emanates, or any other potentially responsible person).” 42 U.S.C. § 9622(a). The described

“owners or operators” (a type of “[c]overed persons”) are

PRPs. Respondents (at 43-44) protest that because they

did not pollute, § 122(a) is inapplicable. But CERCLA is

a strict-liability statute. Owners of a “facility” include anyone who owns a “site or area where a hazardous

substance has … come to be located.” 42 U.S.C. § 9601(9).

Such owners can be held liable—i.e., potentially responsible—regardless of fault, and are therefore PRPs. Id.

§ 9607(a)(1); Atl. Research, 551 U.S. at 136 (CERCLA

subjects even the “innocent … landowner whose land has

been contaminated by another” to liability).

Respondents (at 39) are incorrect that §§ 119(d) and

124(b)(2) show that PRPs and “[c]overed persons” differ.

Those two provisions extend various defenses or indemnities to actors who engage in certain conduct that would

render them “[c]overed persons,” then withdraw that benefit if the actors, regardless of those activities, still would

be “[c]overed persons” under § 107(a).

42 U.S.C.

§§ 9619(d), 9624(b)(2). These provisions never suggest

that covered persons are not PRPs.

2. Respondents (at 45) decline to defend the holding

below that only parties “designated” as PRPs are PRPs.

Br. 35-40. Instead, respondents maintain (at 36, 40, 45)

that because “potentially” means “possible but not yet realized,” a PRP is “a covered person who faces potential

liability,” but not someone whose “potential for liability is

eliminated—whether through judicial determinations or

the passage of time.” Respondents identify no authority

embracing their theory. Even were this Court writing on

a blank slate, the word “potential” supports petitioner.

Just as “[c]overed persons” are people who “shall be liable” even if no one collects, the word “potentially” in PRP

10

describes people who may be legally responsible for

cleanups, even if liability never materializes. Supra § 1.

Other aspects of CERCLA refute the notion that only

people who could be forced to pay cleanup costs are PRPs.

Section 105(h)(4)(A) is again instructive. It provides: a

“State, as an owner or operator or a significant contributor of hazardous substances … is a potentially responsible

party.” 42 U.S.C. § 9605(h)(4)(A). But state sovereign immunity (absent waiver) shields States from CERCLA

damages. Seminole Tribe, 517 U.S. at 63-73. Respondents’ reading also produces absurdity. If only parties

whose liability is “possible but not yet realized” are PRPs,

actually liable parties would not be PRPs; they have realized liability.

Moreover, CERCLA defenses are not decisive endpoints. Non-polluting (or minimally polluting) parties

qualify for defenses only as long as they abide by myriad

statutory conditions, including non-interference with

EPA’s cleanup. 42 U.S.C. §§ 9601(40)(B), 9607(r)(1)

(bona-fide-prospective-purchaser defense), 9607(q)(1)(A)

(contiguous-landowner defense), 9607(o)(2)(A) (de micromis polluter defense).

The minute parties stop

complying, they subject themselves to liability again. In

the parlance of the Montana Supreme Court, the PRP

horse would trot in and out of the barn, leaving EPA to

try to pinpoint the horse’s whereabouts at any time.

PRP status also does not depend on the availability of

statute-of-limitations defenses, as respondents (at 36) envision. Br. 37-39. Respondents ask how landowners could

be potentially liable under CERCLA if § 113(g)(2)(B)’s

six-year limitations period for an action to recover remediation costs has run. 42 U.S.C. § 9613(g). Here is how:

EPA at any time can issue unilateral administrative orders compelling landowners to spend money effectuating

11

EPA’s cleanup. Id. §§ 9606(a), (b)(2). Indeed, EPA told

respondents that their actions “may put them at risk of

becoming liable for significant response costs” under

§ 106(a). Br. 1a, 3a; see CVSG Br. 16-17. Moreover, if respondents remediate absent EPA approval, EPA could

initiate a “removal action” in response and sue for cost recovery within three years under § 113(g)(2)(A). 42 U.S.C.

§ 9613(g)(2)(A). Additionally, if petitioner and EPA sign

a site-wide consent decree, the company has three years

to sue respondents for contributions to remaining cleanup

costs. Id. If respondents’ cleanup harms natural resources, they could be sued for those damages until three

years after EPA’s remediation ends. Id. § 9613(g)(1). Respondents thus face many avenues to possible CERCLA

liability.3

Further, figuring out when “potential” liability terminates under respondents’ theory presents complex

metaphysical questions that would thwart administration

of all 54 CERCLA provisions involving PRPs. Respondents never explain how or when anyone could be sure

PRPs no longer face potential liability. Br. 37-40. Just

because PRPs could assert statute-of-limitations or other

defenses is no guarantee that courts or EPA would agree.

Absent an unappealable final judgment, some possibility

of liability remains.

Respondents (at 39-40) infer that PRP status relates

to whether a party “faces potential liability and therefore

might settle” because Congress placed 33 of 54 references

Respondents (at 47) misrepresent the government’s district-court

brief, which does not suggest that PRP status disappears upon establishing defenses. The brief says only that “landowner PRP[s]” might

invoke contiguous-landowner and innocent-landowner defenses if

they meet statutory criteria, not that they would stop being PRPs.

Mont. S. Ct. R. at App-555.

3

12

to PRPs within a section (§ 122) that largely concerns settlements. But this Court does not read in such atextual

limitations. Graham Cty. Soil & Water Conservation

Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 291-92 (2010).

Further, CERCLA refers to PRPs in contexts unrelated

to “potential” liability, refuting this theory. Take § 119,

which authorizes “any [PRP] carrying out an agreement

under [§§ 106 or 122]” to delegate cleanups to contractors.

42 U.S.C. §§ 9619(e)(1)(D), 9619(c)(2)(D). Such PRPs are

implementing settlement agreements, i.e., are still PRPs

despite accepting liability. Accord id. § 9613(g)(1) (requiring notice to PRPs of natural-resource-damages suits

that can be filed 3 years post-cleanup).

Respondents finally (at 43) rely on proposed language

Congress never adopted that defined PRPs as “a person

who would be liable under section 107 if response costs

were incurred.” But statutory outtakes are not law. Regardless, that definition undermines respondents by

effectively equating PRPs with “[c]overed persons,” i.e.,

persons who “shall be liable” for cleanup-related costs. 42

U.S.C. § 9607(a).

3. Respondents’ position invites chaos. In Montana

alone, some 50,000 people live on Superfund sites. Pet. 34.

Under respondents’ theory, tens of thousands of landowners would initially qualify as PRPs. But upon establishing

statute-of-limitations or other defenses, they become former PRPs who can undo EPA’s efforts. To avoid a

patchwork of one-off remedial plans and preserve EPA’s

control over on-site remediation, EPA would have to sue

or settle with every PRP within the limitations period and

resolve all defenses. Br. 38-40.

Respondents (at 45) downplay these consequences as

“how limitations periods work.” But Congress could not

possibly have intended to force EPA to pursue thousands

13

of actions (which would delay cleanups and prolong hazardous waste exposure) to ensure the integrity of its

cleanups. The only beneficiaries would be the swarm of

lawyers whom landowners and other PRPs would have to

hire. Br. 38-40.

Not to worry, respondents say: EPA could “seek equitable relief” if competing cleanups “create ‘an imminent

and substantial endangerment to the public health or welfare or the environment.’” Resps’ Br. 46 (quoting 42

U.S.C. § 9606(a)). Start worrying: how would EPA know

when former PRPs are poised to endanger communities?

They have no reason, absent § 122(e)(6), to seek EPA’s

pre-approval. Would EPA have to track every PRP on

every Superfund site to ascertain when they establish a

defense? EPA can hardly surveil every former PRP in

case today is the day they breach an underground aquifer

and release toxins into everyone’s water. And EPA can

only enjoin “imminent and substantial” threats—small

comfort while EPA’s comprehensive cleanup suffers

death by a thousand unilateral cuts.

Respondents (at 40-41) doubt Congress would place a

provision broadly protecting EPA cleanups against interference within § 122, which generally concerns

settlements. But § 122(e)(6) is no rogue elephant hiding

transformative consequences in an obscure CERCLA

mouse-hole. CERCLA is a stomping ground for parallel

provisions that sweep even further to protect EPA’s

cleanup and the community. Non-polluting, bona-fide

prospective purchasers of land on Superfund sites must

“provid[e] full cooperation, assistance, and access” to

EPA’s remediation efforts (i.e., not displace EPA’s existing remediation), or lose their exemption from CERCLA

liability. 42 U.S.C. §§ 9601(40)(B), 9607(r)(1). Non-polluting contiguous landowners likewise cannot interfere with

14

EPA’s cleanup if they want to remain exempt from liability. Id. § 9607(q)(1)(A)(iv)-(v). The same goes for de

micromis polluters. Id. § 9607(o)(2)(A).4

Respondents (at 41-42) exaggerate § 122(e)(6)’s intrusiveness. EPA does not “forever” control every “shovelful

of dirt” on respondents’ property. In cleanups involving

complete removals of hazardous substances, landowners

without hazardous substances on their property would no

longer fit the PRP definition, see 42 U.S.C. § 9607(a).

Cleanups like Anaconda, which involve partial waste-inplace remediation, differ because the cleanup is ongoing

and EPA has determined it is safer or more practicable

not to disturb some substances. Br. 13-14; cf. Resps’ Br.

56-58. Regardless, § 122(e)(6) bars only unauthorized “remedial action.” That term does not prohibit minor

yardwork like planting flowers or installing fences. See 42

U.S.C. § 9601(24). Any further restrictions come from local land-use law—part of the system of “institutional

controls” that local governments impose to protect citizens around Superfund sites. E.g., Anaconda-Deer Lodge

County, Montana Code of Ordinances ch. 24, art. XXX.

Respondents (at 42) claim that EPA’s approval authority over residential landowners’ competing cleanups

raises Takings and Commerce Clause concerns. That position is incoherent. Respondents seemingly agree that

non-polluting landowners could be PRPs until limitations

periods run, meaning § 122(e)(6) requires them to “house

pollutants on their land” for years already. Why the Constitution would tolerate that restriction until the clock

Respondents (at 41) fault Congress for not extending § 122(e)(6) to

“all persons” if the point was to comprehensively protect sites. But

the above provisions and § 122(e)(6) together prohibit any on-site

landowner from interfering.

4

15

runs on liability, but not later, is a mystery.

Respondents’ position is just a backdoor attack on

CERCLA and suggests the whole Act is constitutionally

suspect. Under respondents’ theory, holding non-polluting landowners liable for any costs, or forbidding

landowners from any activities under § 106(a), would

equally raise constitutional concerns. And respondents’

position has no logical endpoint. If Congress cannot require non-polluting landowners to obtain EPA approval

before interfering with EPA’s cleanups, Congress cannot

apply § 122(e)(6) to culpable landowners, either.

B. Respondents Are Not “Contiguous Landowners”

Respondents (at 47-49) raise the eleventh-hour claim

that they are not PRPs because they are not “[c]overed

persons” under the “contiguous landowner” exception. 42

U.S.C. § 9607(q)(1)(A). Respondents’ brief in opposition

never argued this, as this Court’s rules require. S. Ct. R.

15.2. Regardless, respondents’ contention lacks merit.

First, CERCLA requires respondents to “establish by a

preponderance of the evidence” that they satisfy eight criteria, 42 U.S.C. § 9607(q)(1)(B); contra Resps’ Br. 48-49.

No court has found that respondents did so.

Respondents also must show they did “not know or

have reason to know” about contamination when they

bought land. Id. § 9607(q)(1)(A)(viii). But they bought

properties neighboring a Washington Monument-sized

smelter. “[E]vidence of public knowledge” of contamination was “almost overwhelming.” Christian v. Atl.

16

Richfield Co., 358 P.3d 131, 154-55 (Mont. 2015). Opportunity was a company town; virtually all property included

easements authorizing waste deposits. Id. at 137-38.5

Further, respondents’ restoration remedy disregards

a contiguous landowner’s duty to take “reasonable steps”

to “prevent any threatened future release” or “prevent or

limit” exposure. 42 U.S.C. § 9607(q)(1)(A)(iii). The same

goes for their duty to provide “full cooperation, assistance,

and access” to EPA, id. § 9607(q)(1)(A)(iv), or not to “impede the effectiveness or integrity of any institutional

control,” id. § 9607(q)(1)(A)(v).

C. Remand Is Pointless

Respondents acknowledge that, if they are PRPs, they

need EPA’s approval to execute their remediation plan.

They never explain why they failed to approach EPA in

the eleven years since they filed suit. Respondents (at 49)

nonetheless invite a remand for state courts to decide if

the possibility of future EPA approval is enough for respondents’ remedy to proceed. But respondents have

never argued that state law would allow their remedy to

proceed without EPA’s approval. Instead, they concede

that state law requires them to effectuate any jury-approved cleanup—an outcome that § 122(e)(6) precludes

absent EPA’s authorization. Br. 11-12, 52; BIO 8; Pet.

App. 5a, 13a. The decision below thus never questioned

that, if respondents are PRPs, they cannot pursue their

restoration remedy; there is no further state-law inquiry.

Pet. App. 15a-17a.

Respondents (at 49 n.10) invoke the bona-fide-prospective-purchaser exception, but no court has even considered if they met their

burden to satisfy six prerequisites. 42 U.S.C. §§ 9601(40)(B),

9607(r)(1).

5

17

IV. Preemption Principles Require Reversal

Respondents (at 50, 59, 60) attack an argument no one

makes: that CERCLA “broadly preempts state-law remedies for quintessential state-law property torts.” No

matter what, CERCLA permits respondents’ request for

traditional compensatory damages and even punitive

damages for their nuisance and trespass claims.

But respondents want more, namely a state-law restoration remedy that uniquely imposes a duty to implement

a remediation plan on a Superfund site without EPA’s approval. Federal law bars petitioner from effectuating

non-EPA-approved remediation. When federal law requires a party to turn right, but state law requires a left,

federal law controls. Allowing landowners to invoke state

law to impose their own cleanups would also vitiate CERCLA’s statutory directives that EPA oversee site-wide

cleanups and settle with PRPs.

A. Impossibility Preemption Applies

1. A state law is preempted if “federal law forbids an

action that state law requires.” Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 486 (2013). Respondents’ restoration

remedy requires restoring land to its pre-pollution condition. State law requires petitioner to pay for that

remediation—and once petitioner puts up the money,

state law obligates respondents to execute their cleanup.

Br. 43-44.

Respondents (at 51, 53-55) portray restoration damages as “simply the ‘sanction’” for breaching a state-law

duty to avoid polluting. But if petitioner had “polluted,”

then restored the property, restoration damages would be

unavailable, as respondents (at 55) concede. It is the failure to restore—the failure to perform a duty that federal

law prohibits—that triggers the duty to pay restoration

18

damages. If Montana authorized injunctions compelling

petitioner to implement respondents’ remediation plan,

CERCLA would surely preempt that remedy. Like injunctive relief, restoration damages are not “simply a

measure of the damages Landowners may secure.” Cf.

Resps’ Br. 51; States’ Br. 27-28. Restoration damages

presuppose that state-law-required restoration has not

occurred, and impose a binding obligation to restore the

polluted land. Sunburst Sch. Dist. No. 2 v. Texaco, Inc.,

165 P.3d 1079, 1087 (Mont. 2007); supra p. 16. Preemption

does not disappear just because States label something

“relief,” not a “claim.”

Respondents (at 52) contend that since they will wield

the shovels, petitioner faces no remediation obligation.

But the restoration remedy requires petitioner to effectuate respondents’ remediation plan. By discharging a duty

to pay restoration damages, defendants compel plaintiffs

to devote that award to their jury-approved plan, not

EPA’s. Sunburst, 165 P.3d at 1087; Br. 43-44. Petitioner

can avoid that obligation only by implementing respondents’ plan itself. Respondents (at 52) call such conduct

optional damages mitigation. But this same argument

would apply had respondents sued for injunctive relief

and petitioner implemented respondents’ plan to avoid

the injunction. Either way, state law makes petitioner an

indispensable agent in uprooting its own EPA-mandated

work.

Federal law commands petitioner not to effectuate the

precise work state law would require. CERCLA prohibits

petitioner from “undertak[ing] any remedial action” without EPA’s approval. 42 U.S.C. § 9622(e)(6); Br. 44-46;

U.S. Br. 30-31; Resps’ Br. 54. Petitioner cannot evade federal law by paying respondents to dig the dirt themselves.

19

E.g., Black’s Law Dictionary 1369 (5th ed. 1979) (to “undertake” includes “[t]o take on oneself” and “to covenant”

or “contract” for).

2. Respondents argue (at 54) that petitioner must

prove EPA “would deny” their cleanup plan for federal

law to conflict. But this Court has already “reject[ed]” the

argument that “when a private party’s ability to comply

with state law depends on approval and assistance from [a

federal agency], proving pre-emption requires that party

to demonstrate that the [agency] would not have allowed

compliance with state law.” PLIVA, Inc. v. Mensing, 564

U.S. 604, 620 (2011). It is irrelevant whether some parts

of respondents’ plan “might be something that EPA could

authorize.” Resps’ Br. 56. “The question for ‘impossibility’ is whether the private party could independently do

under federal law what state law requires of it.” Mensing,

564 U.S. at 620.

Respondents contend (at 54-55) these preemption

principles apply only to generic-drug manufacturers. But

there is no pharmaceuticals-only edition of the Supremacy

Clause. Mensing spoke categorically: “[P]re-emption

analysis should not involve speculation about the ways in

which federal agency and third-party actions could potentially reconcile federal duties with conflicting state

duties.” Id. at 623. Nor do generic-drug manufacturers

“fac[e] inconsistent legal obligations” different from petitioner’s. Cf. Resps’ Br. 55. Sure, petitioner could

“eliminate any ultimate restoration-damages award by

conducting the cleanup” before the jury’s verdict. Id. But

that would violate federal law and trigger severe penalties. Br. 44-45.

Respondents are wrong (at 56) that Wyeth v. Levine,

555 U.S. 555 (2009), requires proof EPA would reject respondents’ plan. That standard applies when federal law

20

authorizes defendants (in Wyeth, brand-drug manufacturers) to act unilaterally, subject to possible federal

disapproval later. Mensing, 564 U.S. at 620, 624 & n.8.

Here, defendants need EPA approval up front to satisfy

state-law obligations. Id. at 620.

Regardless, EPA has rejected the pillars of respondents’ plan, including different soil action levels for arsenic

and different soil excavation depths. Br. 14, 17-18; U.S.

Br. 20-21. Respondents suggest (at 56) that EPA signaled

possible later approval of their underground trench by

deeming it “technically impracticable” instead of environmentally risky. That phrase is not exactly encouraging;

besides, EPA further concluded that respondents’ plan

risks environmental harm, U.S. Br. 20, and all respondents have safe drinking water, rendering remediation

unnecessary, J.A. 158, 338; Br. 18. Finally, respondents

erroneously suggest (at 58) that EPA rejected further

pasture-land remediation only because it involved tilling.

Cf. Mont. S. Ct. Supp. App. 182. EPA refused because it

did not want the land disturbed; it frequently orders tilling. E.g., ARWWS ROD §§ 7.1.1(4), 9.4.3.6

B. Obstacle Preemption Applies

Allowing state-law restoration remedies on Superfund

sites would eviscerate policy mandates enshrined in CERCLA’s text. Br. 48-51; Chamber Br. 17-23; Wash. Legal

Found Br. 7-13. First, §§ 117 and 121 require EPA to balance myriad factors and accommodate the State’s and

community’s views in selecting a site-wide cleanup, 42

U.S.C. §§ 9617, 9621. Respondents never explain how

6

Respondents argue (at 56) that petitioner waived conflict preemption in trial court. Petitioner argued conflict preemption before the

Montana Supreme Court, which addressed the issue. Pet. App. 17a18a.

21

EPA’s community-wide determinations could govern if

the hundreds of thousands of landowners on Superfund

sites could supplant EPA’s plans. Second, § 122(a) instructs EPA to settle and secure PRPs’ cooperation in

expeditious remediation. Id. § 9622(a). But respondents’

restoration remedy would deter PRPs like petitioner from

cooperating in efforts that landowners could undo later.

Respondents ignore these provisions, which provide ample textual “[e]vidence of preemptive purpose.” CSX

Transp. v. Easterwood, 507 U.S. 658, 664 (1993).

Respondents refute strawmen. Of course CERCLA

does not “confer permanent polluter immunity,” Resps’

Br. 2, or “preclude state-law tort claims holding polluters

liable,” id. at 59. While CERCLA preserves trespass and

nuisance actions seeking various damages, CERCLA

rules out dueling remediation plans.

CERCLA §§ 114(b) and 309 do not insulate state-law

restoration remedies. Cf. Resps’ Br. 61-62. Section 114(b)

reinforces the exclusivity of EPA’s cleanup. Private parties can recover cleanup costs incurred “consistent with

the

national

contingency

plan,”

42

U.S.C.

§ 9607(a)(4)(B)—i.e., as part of EPA’s cleanup—but

§ 114(b) prevents recovery of the same costs under state

law, id. § 9614(b). Section 309 extends state-law limitations periods for actions for “personal injury, or property

damages.” Id. § 9658(a)(1). That provision does not authorize respondents’ injunction-like remedy.

Allowing landowners on Superfund sites to impose

competing cleanups would replace EPA’s consideration of

Congress’ cleanup criteria under §§ 117 and 121 with doit-yourself plans. Respondents (at 65) belittle this point

as horror “that juries might determine the extent of polluters’ liability.” But the problem is not the jury system.

22

It is that no one involved in these competing plans, including juries, need consider the risks to the community or

other statutory factors, as EPA must. Br. 48-50; U.S. Br.

28-30; Chamber Br. 23.

Respondents express indifference whether their restoration remedy would eliminate EPA’s key bargaining

chip in fulfilling its statutory mandate to secure settlements and cooperation from PRPs. 42 U.S.C. § 9622(a).

Of course, such settlements may not eliminate polluters’

liability, Resps’ Br. 65, but settling with EPA resolves the

biggest costs and uncertainties PRPs face, Br. 50. PRPs

like petitioner will not devote decades to collaborating

with EPA if the whole enterprise is a Sisyphean effort

that individual landowners can undo. Id.

At bottom, respondents would replace Congress’

choices with their parochial preferences. Respondents (at

7-10, 56-58) accuse EPA of conducting a bargain-rate

cleanup that consigns children to arsenic-laden daycares.

But EPA designed its cleanup after consulting with landowners across the site, 99% of whom did not join this suit.

CERCLA requires EPA to “attain a degree of cleanup …

which assures protection of human health and the environment,” 42 U.S.C. § 9621(d)(1), and EPA’s remedy

cannot

compromise

health.

40

C.F.R.

§ 300.430(f)(1)(i)(A).

EPA’s arsenic cleanup levels—which other agencies

and Montana agree are safe—reflect careful risk assessments. Br. 13-14; J.A. 63, 82, 89. Community residents

do not have elevated levels of lead or arsenic. Anaconda

Smelter Superfund Site, Summary of ATSDR’s Exposure

Investigation (2019), https://bit.ly/2r13MQY. Petitioner

tested all of respondents’ properties and remediated

every property exceeding EPA’s action levels. Cf. Resps’

23

Br. 9-10. All residents have safe drinking water; nonetheless, EPA ordered continued monitoring. Br. 14, 18.

Meanwhile, respondents (at 65-66) dismiss their plan’s

dangers. Respondents’ underground trenches affect everyone’s groundwater; any contamination they introduce

would spread community-wide. Respondents’ soil-excavation plan risks spreading currently contained arsenic

everywhere. And this Court’s holding applies nationwide.

Affirmance would let hundreds of thousands of landowners impose their own risky plans, even at Superfund sites

containing the most hazardous pollutants. Br. 18, 51.

Respondents (at 65) argue that EPA can always sue to

prevent imminent harm under § 106(a). But forcing EPA

to sue entire communities to comply with EPA’s cleanup

is upside-down; parties unhappy with EPA’s cleanup

eventually can sue EPA, not the other way around. 42

U.S.C. §§ 9613(h), 9659(a).

C. CERCLA’s Savings Clauses Do Not Bar

Preemption

This Court has interpreted savings clauses materially

identical to CERCLA’s to mean that Congress did not intend to occupy a given field, not that Congress preserved

state laws that conflict with federal law. So too here.

CERCLA §§ 114(a), 302(d), and 310(h) leave room for

states to impose additional environmental regulation and

polluter liability. But state-law remedies that defy Congress’ statutory judgments—like this one—remain

preempted. Br. 51-54; Wash. Legal Found. Br. 14-15.

Respondents (at 62-63) interpret CERCLA §§ 114(a)

and 302(d) to preserve “claim[s] for additional cleanup

costs” or blanket “exempt[ions of] polluters from further

cleanup liability.” But respondents’ restoration remedy

24

involves jettisoning EPA’s plan. That is no mere additional or complementary duty. Br. 53-55. If respondents’

remedy indeed conflicts with CERCLA, respondents

never explain how these clauses would foreclose preemption when this Court has held that similar and broader

savings clauses do not. Br. 52-53.

Section 310(h)—which respondents previously disavowed, Resps’ Mont. S. Ct. Br. 24-25—changes nothing.

Br. 52. CERCLA would still preempt respondents’ restoration remedy, just as federal law preempted conflicting

state-law claims despite similarly worded savings clauses.

Br. 52; Tex. & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204

U.S. 426, 442 (1907).

Respondents (at 64) dismiss this Court’s cases finding

preemption notwithstanding savings clauses as instances

where specific federal prohibitions overcame generic savings-clause language. But Geier holds that the existence

of a savings clause “does not bar the ordinary working of

conflict pre-emption principles.” 529 U.S. 861, 869 (2000).

Nothing in these savings clauses suggests Congress

sought to preserve state-law claims that would undo the

very remedies Congress charged EPA with implementing

at America’s most hazardous waste sites.

25

CONCLUSION

The judgment of the Montana Supreme Court should

be reversed.

Respectfully submitted,

ROBERT J. KATERBERG

ELISABETH S. THEODORE

STEPHEN K. WIRTH

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

JONATHAN W. RAUCHWAY

SHANNON W. STEVENSON

DAVIS GRAHAM & STUBBS

LLP

1550 17th St., Suite 500

Denver, CO 80202

NOVEMBER 14, 2019

LISA S. BLATT

JOHN S. WILLIAMS

SARAH M. HARRIS

CHARLES L. MCCLOUD

MENG JIA YANG

THOMAS S. CHAPMAN

WILLIAMS & CONNOLLY LLP

725 Twelfth Street, NW

Washington, DC 20005

(202) 434-5000

lblatt@wc.com

Counsel for Petitioner