Atlantic Richfield Co. v. Christian, No. 17-1498 (April 20, 2020), involved an area covering more than 300 square miles that was contaminated with arsenic and lead from three copper smelters in Montana. The Environmental Protection Agency had designated the area as a Superfund site under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675, in 1983, and had worked with the current owner of the smelters, Atlantic Richfield Company, to implement a cleanup plan under the Act ever since.
In 2008, a group of 98 landowners within the site who were dissatisfied with the pace and extent of the cleanup filed common-law claims of nuisance, trespass, and strict liability against Atlantic Richfield Company in Montana state court, seeking damages for the cost to restore their properties to a level that went beyond the Agency’s cleanup plan, by requiring, among other things, a maximum soil contamination of 15 parts per million of arsenic instead of the level of 250 parts per million set by the Agency, even though the Agency had found that its plan was “protective of human health and the environment.”
The trial court granted summary judgment for the landowners on the issue of whether the Act precluded their claim for restoration costs, and permitted the lawsuit to continue. The Montana Supreme Court granted a writ of supervisory control and affirmed, concluding that the landowners were not “potentially responsible parties” under the Act and therefore did not need to obtain approval from the Agency for their plans to restore their properties.
The U.S. Supreme Court affirmed in part, vacated in part, and remanded, holding that the Act did not strip Montana courts of jurisdiction over the landowners’ claims for restoration costs, but that the Montana Supreme Court erred in concluding that the landowners did not need to seek approval of their plans to rehabilitate their properties from the Agency. Chief Justice John G. Roberts, writing for the majority, concluded that, while Montana law required that an award of restoration damages actually be used to repair the damaged property, such action could not be taken in the absence of the Agency’s approval. The Court cited Restatement of the Law Second, Torts § 929 in explaining that, although Montana law provided that property damages were generally measured by the difference between the value of the property before and after the injury, or the diminution in value, a property owner could seek restoration damages, even if they exceeded the property’s diminution in value, when the damaged property served as a private residence and the owner had an interest in having the property restored, because under those circumstances, the diminution in value would not restore the owner to the same position as before the tort.