The Dissenters’ Basis for Concluding that Congress Sought to Protect State Law Claims
Seeing things differently, the dissenters argued that Congress explicitly sought to protect and preserve the right of aggrieved private parties to seek separate cleanup relief in state court. Most compelling to the dissenters was the language in CERCLA itself:
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 substances within such State.
Nothing in this [Act] shall affect or modify in any way the obligations or liabilities of any person under Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.
Rejecting the idea that there should only be a “single EPA-led cleanup effort,” the dissenters were dismissive of the majority view:
[T]hings would be so much more orderly if the federal government ran everything. . . .
Maybe paternalistic central planning cannot tolerate parallel state law efforts to restore state lands. But maybe, too, good government and environmental protection would be better served if state law remedies proceeded alongside federal efforts. State and federal law enforcement usually work in just this way, complementing rather than displacing one another.
Thus, where the majority saw CERCLA’s purpose as bringing about order through a unified remedy selection and implementation process under EPA’s direction, the dissenters saw the statute as explicitly tolerating and sanctioning the intended, organized, and structural “chaos” of our federalist system. That is why they concluded: “Everything in CERCLA suggests that it seeks to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land.”
The Dissenters’ Defense of Property Rights and the Constitution
The dissenters also showed a clear sympathy and appreciation for the homeowners’ property rights. While EPA had a broad mandate under CERCLA to impose the remedy it saw fit upon Atlantic Richfield in order to improve public health and the quality of the environment, the homeowners had a more personal desire to defend their properties and ensure the safety of their families. If EPA’s broader regional remedy did not address the homeowners’ more personal, private property concerns, then according to the dissenters, the homeowners had available to them what has always been available to private property owners––common law remedies in state court. To the dissenters, a commitment to private property rights, and the role of states in protecting those rights, were paramount:
The federal government enjoys no general power to regulate private lands. . . .
[T]he regulation of real property and the protection of natural resources is a traditional and central responsibility of state governments. And States have long allowed landowners to seek redress for the pollution of their lands through ancient common law causes of action like nuisance and trespass.
The dissenters’ perspective that the homeowners had a right to defend their private property in state court was apparently derived in part from a willingness to study the facts and entertain the possibility that EPA’s 250 ppm arsenic standard may not be satisfactory to every homeowner. The dissenters wrote:
By way of reference, even 100 ppm is sometimes considered too toxic for local landfills, and the federal government itself has elsewhere set a threshold of 25 ppm. Some States set residential cleanup levels as low as 0.04 ppm.
From the dissenters’ point of view, at least when it came to the impact on private property, the decision on this type of factual issue was not EPA’s alone to make. Rather, the dissenters believed that the homeowners should have their day in court to litigate the contested issue of how much contamination could safely be left behind on their properties.
The dissenters’ unwillingness to give EPA the final say on matters related to private property was fully on display when they contextualized the majority’s decision with an extreme scenario of a homeowner self-funding the cleanup of its own property:
On Atlantic Richfield’s telling, CERCLA even prevents private landowners from voluntarily remediating their own properties at their own expense. No one may do anything in 300 square miles of Montana, the company insists, without first securing the federal government’s permission.
Moreover, in the dissenters’ view, denying the homeowners the right to pursue their claims in state court, and giving EPA the authority to actually limit the cleanup of private land, ran directly afoul of the Constitution:
If CERCLA really did allow the federal government to order innocent landowners to house another party’s pollutants involuntarily, it would invite weighty takings arguments under the Fifth Amendment. And if the statute really did grant the federal government the power to regulate virtually every shovelful of dirt homeowners may dig on their own properties, it would sorely test the reaches of Congress’s power under the Commerce Clause.
The dissenters’ overall sympathy toward the homeowners’ desire to defend their property rights in state court is grounded in their apparent greater trust of individual citizens over the federal government, at least in this instance:
[L]et’s be honest, the implication here is that property owners cannot be trusted to clean up their lands without causing trouble. . . .
But this project is well on its way to the half-century mark and still only a “preliminary” deadline lies on the horizon. No one before us will even hazard a guess when the work will finish and a “delisting” might come.
The Long Road Ahead for the Homeowners
Based on the majority’s decision, the homeowners have a potentially lengthy litigation path in front of them. First, they will have to go through the state court system, with the certainty of appeals, to determine whether the establishment of a restoration fund will be ordered, and if so, how much will be deposited into the fund and how the funds will be distributed. Then, if restoration funding is mandated by the state court, EPA will get to decide if any restoration work that homeowners wish to perform will conflict with the remedy being implemented under the ROD. EPA’s decision, be it for or against additional restoration work, will presumably then be challenged for the typical reasons EPA decisions get challenged (i.e., whether or not the decision was arbitrary and capricious, or an abuse of discretion, pursuant to the Administrative Procedure Act).
No matter how hard the majority sought to create order and finality through the endorsement of a single, EPA-led remedy, the dispute among the homeowners, Atlantic Richfield, and EPA is likely to create chaotic litigation for years to come.
While it is obviously the majority decision in Atlantic Richfield Co. v. Christian that will be controlling authority and matter most to litigating parties, it is the dissenting opinion that brings into focus some of the more thorny and strategic issues commonly faced by defendants subject to government enforcement actions, both environmental and otherwise. As with the Anaconda Smelter Superfund Site, the subject matter of government enforcement is often of interest to other non-party, private citizens. A settlement of an enforcement action between a defendant and the government may not provide sufficient, or any, relief to private citizens. The private citizens may be entitled to something more, or something different, from what the government is seeking or willing to accept.
Consequently, it is not unusual or inappropriate for private citizens to turn to state courts for specific relief, regardless of enforcement of a federal statute by a specialized federal agency. The logic described by the dissenters of how federal regulatory statutes supplement, but do not supplant, state law remedies is repeatedly found in federal case law in a variety of contexts other than environmental law, including labor law, trade law, and consumer protection law. This common refrain of federal regulatory statutes supplementing, not supplanting, private state law actions is, at its essence, rooted in federalism. Simply put, state courts have an important and indispensable role to play, regardless of the actions and decisions of federal agencies enforcing federal law.
It is generally accepted that federal enforcement has been trending downward in recent years. It should therefore not be surprising that we may see in the future more private parties, believing federal agencies are not authorized or not doing enough to protect their interests, turn to state courts for common law relief. Against this backdrop, the dissenters’ embrace of federalism is compelling and has the potential to be impactful. The dissenters’ defense of a state court private action in the face of a federal agency enforcement action rings a lot of bells for those who believe in and value a limited federal government. The well-reasoned dissenting opinion may very well influence courts that are both keenly aware of their role of being guardians of the basic rights of citizens and distrustful of an all too powerful federal government.