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Mar 15, 2022
In 2020, the Supreme Court decided Atlantic Richfield v. Christian, a case that asked the Court to reconcile ostensibly competing concerns in the Comprehensive Environmental Response, Compensation, and Liability Act: the jurisdictional bar that limits challenges to the Environmental Protection Agency’s ongoing cleanup plans and the savings clause that makes room for state restoration claims which are not available under the Act. The case arose when landowners on a Superfund site in Montana sought restoration damages under Montana state law during an ongoing Environmental Protection Agency- led cleanup. The Court ultimately held that the landowners could seek damages in state court during ongoing cleanups, but with one significant caveat: landowners must obtain Environmental Protection Agency approval before commencing with any action, even if they choose to pay for the cleanup themselves. As a matter of policy, the Court reasoned that a single Environmental Protection Agency-led cleanup was more efficient than numerous and simultaneous individual cleanups.
This Note considers whether the holding of Atlantic Richfield aligns with the Comprehensive Environmental Response, Compensation, and Liability Act’s goals of promoting cooperative federalism and efficient cleanups of hazardous waste sites and suggests a modest congressional amendment to put the Act back on track. This Note argues that persons owning contaminated land should have the ability to use every legal tool—under state and federal law—to remediate their land as expeditiously as possible. Additionally, this Note contextualizes this proposal against the backdrop of current debates regarding the regulation of emerging contaminants, such as per- and polyfluoroalkyl substances, which may drastically impact the Superfund program in the coming years.