Partner J. Michael Showalter was quoted on the U.S. Supreme Court’s ruling in Atlantic Richfield Company v. Gregory Christian, et al., which held that the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) does not preempt all state law claims related to remediation-focused damages, but instead that such claims could proceed so long as they did not undercut the U.S. Environmental Protection Agency’s (EPA) ultimate cleanup authority.
Mike said that while the court’s opinion stresses the “EPA’s continued primacy” in deciding remedies and “should give a measure of comfort” to entities that conduct cleanups, “parties still may be vulnerable to state court claims by landowners that convince the EPA that the remedies they request do not threaten overall cleanups."
However, the ruling does leave open a potential loophole.
He added, “While the gist of the decision is that the EPA has the broad right to determine how a site should be remediated, the Court’s decision effectively allows the EPA a back door to permit parties to use state law remedies to compel more stringent cleanups."
“Even though the EPA here stated that it did not approve of the landowners’ plan because the plan presented environmental risks, the EPA could theoretically come to a different conclusion in other circumstances or under a different administration without directly undercutting its prior determinations under federal law,” he said.
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Read Mike’s original blog post at Schiff Hardin’s Energy and Environmental Law Adviser.