Should property rights give way if environmental cleanups seem too costly?

Last week, the Supreme Court heard oral argument in Atlantic Richfield v. Christian, an important case concerning whether property owners can sue neighboring polluters for money to cleanup their polluted land. At issue in the case is whether state courts and individual property owners deciding how to clean up polluted land would interfere with the Environmental Protection Agency’s work under the Comprehensive Environmental Response, Compensation, and Liability Act (more commonly known as Superfund). Although the argument suggests its unlikely that the Court will prevent entirely such suits, some of the Justices suggested that property owners should have to seek EPA permission before cleaning up their own land, which depending on the standards EPA applies could significantly undermine the role of property rights in protecting the environment. In this case, a copper smelter dumped tons of arsenic and other toxic pollutants on its neighbors in Opportunity, Montana. Since the 1980s, it has spent nearly half a billion dollars cleaning up some of the affected properties in a 300 square mile Superfund site under a plan developed by EPA. Now that the EPA plan is wrapping up, property owners whose land hasn’t been restored have sued the polluter under Montana law, seeking funds to clean up their properties. The polluter claims that it can’t be sued for these costs, because any further remediation work would be inconsistent with EPA’s plan.
Sometimes oral argument indicates which way the Supreme Court is leaning. This was not one of those times. Instead, the oral argument suggests that the Justices are genuinely sympathetic to both arguments. On the one hand, they recognize the polluter’s argument would be an unprecedented federal intrusion on property rights, by letting EPA void rights without the owners’ consent or participation. On the other, they’re worried about people working in polluted areas without EPA oversight. [I gave an immediate reaction to the oral argument in a podcast for the Federalist Society.]...MORE