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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight an analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. After more than

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Speaker 1: a decade of court battles, one hundred residents of the

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Speaker 1: tiny town of Opportunity, Montana, went head to head against

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Speaker 1: one of the largest corporations in the world at the

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Speaker 1: Supreme Court on Tuesday. The residents ay Atlantic rich Field

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Speaker 1: is responsible for removing the lead and arsenic deposited on

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Speaker 1: their properties in decades of copper smelting operations. The outcome

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Speaker 1: could affect how the billion dollars super Fun clean up

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Speaker 1: law works, and during oral arguments, the joices seemed wary

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Speaker 1: of interfering with that. Joining me as pat parento or

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Speaker 1: professor at Vermont Law School. So pat Arco, which is

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Speaker 1: owned by BP, has already spent hundreds of millions of

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Speaker 1: dollars in cleaning up the area. Tell us what the

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Speaker 1: situation there is now? Well, this is one of the

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Speaker 1: largest super fun sites in the country and one of

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Speaker 1: the most heavily contaminated. It's an old copper smelter in Montana,

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Speaker 1: and the property owners that live within the area where

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Speaker 1: the smelter has been operating. The smelter is taller than

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Speaker 1: the Washington Monument. It's huge, and it's deposited arsenic and

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Speaker 1: lead contamination over an enormous area three square miles, including

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Speaker 1: the property of the plaintiffs in this case. And it's

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Speaker 1: contaminated the soil and the groundwater. There's been a remedial

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Speaker 1: action under way for over thirty years. It's still not finished.

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Speaker 1: So it's a big mess. What's the basic legal issue

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Speaker 1: before the court? So the property owners have said the

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Speaker 1: e p A. The remedy that you're requiring Atlantic Ridge

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Speaker 1: Field to carry out is not going to restore our property.

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Speaker 1: They live within the boundary of the National Priority Lists

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Speaker 1: site and their soil has contaminated, their groundwater is contaminated,

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Speaker 1: and they want more work done to restore their property.

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Speaker 1: And under state law, they have a claim for this

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Speaker 1: kind of nuisance and trespass of contamination on their properties.

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Speaker 1: So they want money from ARCO to conduct additional remedial

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Speaker 1: action to restore their property. What is the argument of

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Speaker 1: ARCO and also the Trump administration right. So ARCO is

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Speaker 1: saying e p A should have the final word on

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Speaker 1: any remedy. We've already spent over four hundred million dollars

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Speaker 1: that e p A s direction. We don't think it's

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Speaker 1: right or fair or lawful that we should be also

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Speaker 1: subject to liability from these landowners, and we don't want

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Speaker 1: individual state courts ordering additional remedial action when e p

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Speaker 1: A is the one that makes those final decisions. ARCO

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Speaker 1: is arguing there should be uniformity in the way that

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Speaker 1: super Fun clean ups are done and that e p A,

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Speaker 1: as the expert agency, should have the final word on that.

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Speaker 1: The problem that ARCO has is that circle of the

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Speaker 1: super Fun law contains what's known as a savings provision,

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Speaker 1: which actually allows private property owners to pursue state common

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Speaker 1: law remedies when the remedy that e p A has

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Speaker 1: ordered doesn't go far enough to restore their property. So

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Speaker 1: that's the tension in this case, the balance between a

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Speaker 1: law that tries to preserve the rights of property owners

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Speaker 1: to pursue additional remedy, but a remedy that doesn't conflict

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Speaker 1: with the one that e p A has ordered, So

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Speaker 1: the Montana Supreme Court ruled for the landowners. What was

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Speaker 1: its finding. The Montana Supreme Court said, this case should

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Speaker 1: go to trial, and at this stage we can't determine

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Speaker 1: whether whatever remedy is ordered after trial would conflict with

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Speaker 1: e PAS remedy or not. As they put it, that's

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Speaker 1: a hypothetical potential conflict, but not a real actual conflict.

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Speaker 1: So the Montana Supreme Court said, you should be able

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Speaker 1: to put your case on in front of a Montana

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Speaker 1: jury and see if you can convince the jury that

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Speaker 1: you're entitled to further compensation from ARCO. And by the

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Speaker 1: same token, ARCO is going to be able to present

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Speaker 1: evidence that what you're asking for either isn't necessary or

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Speaker 1: that it would conflict with e PAS remedy, in which

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Speaker 1: case it wouldn't be ordered. So the trial would resolve

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Speaker 1: the dispute between whether what their landowners want is inconsistent

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Speaker 1: with what E p A has ordered. But it seemed

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Speaker 1: during the oral arguments that most of the justices seemed

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Speaker 1: inclined to stop a trial from going forward. Well, it's

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Speaker 1: clear that the court is struggling with balancing the rights

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Speaker 1: of the landowner. And if you will the rights of

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Speaker 1: ARCO are more properly probably the deference to e p

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Speaker 1: a s judgment about what should be done here, and

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Speaker 1: the justices are trying to find a way that whatever

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Speaker 1: remedy the landowners want to get from their state court

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Speaker 1: action would be approved by e p A. This is unusual.

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Speaker 1: I'm not sure the mechanism by which e p A

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Speaker 1: could do something like this, But clearly a number of

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Speaker 1: the justices are not comfortable just letting this case go

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Speaker 1: to trial before a state court. They want to make

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Speaker 1: sure that e p A retains control over whatever ultimately

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Speaker 1: happens to this site. Well, could they write an opinion

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Speaker 1: and you know insert e p A must have control

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Speaker 1: over sight when there is no regulation that seems to

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Speaker 1: allow the landowners to say, e p A, can you

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Speaker 1: approve this right? And Justice Sotomayor was saying, why didn't

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Speaker 1: the landowners approach e p A with their proposed remedy,

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Speaker 1: and and Arco's lawyers, I think properly said, well, they

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Speaker 1: did try to convince EPA to do more, an EPA

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Speaker 1: declined to do it, and so there's a disagreement about

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Speaker 1: what really should be done at this site. But in

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Speaker 1: the end, The one thing EPA could possibly do is

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Speaker 1: to certify that whatever remedy is ordered to restore the

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Speaker 1: private owner's property doesn't conflict with the remedy that e

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Speaker 1: p A has required. The problem there is e PAS

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Speaker 1: remedy is still ongoing and won't be completed until at

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Speaker 1: the earliest. So it's going to be very difficult for

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Speaker 1: e p A to approve a remedy that might be

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Speaker 1: ordered by the state Court before e p A has

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Speaker 1: actually completed its remedy. It's a very complicated situation, unprecedented,

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Speaker 1: I would say, under super fun at this point, What

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Speaker 1: was the Chief Justice John Roberts getting at when he

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Speaker 1: said that the residents digging up a yard to put

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Speaker 1: in a sandbox for children could quote stir up infected

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Speaker 1: dirt that could harm your neighbors many miles away. Getting

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Speaker 1: it that they're not supposed to do anything on their property, Well,

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Speaker 1: he's certainly saying if they shouldn't be allowed to do

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Speaker 1: something that would cause further damage. But my response to

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Speaker 1: the Chief Justice would be that's the purpose of the trial,

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Speaker 1: and that's what the Montana Supreme Court stressed, is that

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Speaker 1: if what the landowner is requesting from ARCO would either

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Speaker 1: make things worse, conflict with e PAS remedy or simply

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Speaker 1: not be justified, then they will not be awarded that remedy.

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Speaker 1: So the landowners have a number of hurdles they've got

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Speaker 1: to get over before they could ever recover anything from ARCO,

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Speaker 1: and one of those is going to be what kind

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Speaker 1: of restoration are you requesting? Is it justified? And is

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Speaker 1: it consistent with what e p A has required. Those

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Speaker 1: are three major questions that we don't have answers to

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Speaker 1: right now. Is there any middle ground that you can

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Speaker 1: see the justices ruling on hard to see, but there.

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Speaker 1: Here's one idea. The justices could say that the property

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Speaker 1: owners lawsuit in state court will be held in abeyance,

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Speaker 1: ending e p a's final remedy, which, as I say,

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Speaker 1: isn't going to be concluded until at that point it

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Speaker 1: should be pretty clear whether there's remaining work to be

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Speaker 1: done on the private property. There probably will be, but

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Speaker 1: at least it will be clear that the federal remedy

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Speaker 1: phase will have ended, and it will be much easier

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Speaker 1: to determine whether what the property owners are seeking is

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Speaker 1: consistent with that remedy or not. Right now, it's almost

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Speaker 1: impossible to make that determination. If the Supreme Court rules

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Speaker 1: against the residents. Do they have other options to pursue?

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Speaker 1: Hard to see. I mean, they've tried to get e

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Speaker 1: p A to do more unsuccessfully. I suppose they could

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Speaker 1: keep trying to do that. They do have remedies, by

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Speaker 1: the way, for trespass. The issue that we're talking about

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Speaker 1: in this case is restoration of their property, which would

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Speaker 1: mean removing additional contamination from the soil or groundwater. An

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Speaker 1: alternative remedy would be simply trespass, and that's a much

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Speaker 1: easier remedy to prove because you're basically saying you have

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Speaker 1: physically invaded my property with your contamination, and that's certainly true.

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Speaker 1: The difference is that you might not get as much money,

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Speaker 1: you might not get additional work done on the site,

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Speaker 1: but you could get some compensation. For example, the property

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Speaker 1: value of this property has undoubtedly gone down significantly just

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Speaker 1: by virtue of the fact that it's this close to

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Speaker 1: a superfund site, So recouping those kinds of damages would

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Speaker 1: be possible even if they couldn't get restoration. Finally, Pat,

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Speaker 1: do you agree with our co and the Justice Department

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Speaker 1: saying that if the Supreme Court interferes here, it could

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Speaker 1: affect how the superfund clean up law works. I think

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Speaker 1: that's overstatement and tilting it windmills. Frankly, this is a

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Speaker 1: this is a fact based case um. And the question

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Speaker 1: is has this private property been damaged by our co

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Speaker 1: and is it going to be damaged even after e

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Speaker 1: p A's remedy is complete? And are the landowners entitled

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Speaker 1: to some compensation for that? That doesn't seem unreasonable to me,

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Speaker 1: and I don't think that's going to bring the whole

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Speaker 1: super fun programmed down by any stretch. Congress deliberately carved

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Speaker 1: out an exception for private property owners to seek compensation

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Speaker 1: beyond the remedy that e p A ordered. That's what

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Speaker 1: these landowners are trying to do. Thanks Pat. That's Pat Parento,

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Speaker 1: professor at Vermont Law School. Thanks for listening to the

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Speaker 1: Bloomberg Law Podcast. You can subscribe and listen to the

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Speaker 1: show on Apple Podcasts, SoundCloud, and on Bloomberg dot com

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Speaker 1: slash podcast. I'm June Brosso. This is Bloomberg Ye