1) Superfund deals don’t block state-law claims

On April 20, 2020, the Supreme Court of the United States (SCOTUS) issued an opinion allowing Montana residents to maintain state-law claims against a company for a Superfund site that is already covered by a settlement agreement with the U.S. Environmental Protection Agency (EPA).

The SCOTUS decision upholds a prior ruling by the Montana Supreme Court holding that landowners can sue the company for trespass, nuisance, and strict liability claims under state law, and receive damages due to pollution from the Superfund site, even though the site is already subject to a settlement with the EPA. The company appealed the decision to the SCOTUS with the EPA taking the company’s side in the case.

In an 8-1 split decision, the SCOTUS held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not prevent landowners from asserting state-law claims. However, in a separate 7-2 ruling, the Court also concluded that because the landowners are considered potentially responsible parties under CERCLA, they may not begin cleanup actions on their properties without EPA approval.

Next Action: The Court remanded the case back to state court for trial.

2) New test for CWA’s scope

On April 23, 2020, the SCOTUS held in a 6-3 opinion that the Clean Water Act (CWA) requires a permit “when there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge.

The controversy in this case centered on whether a Hawaii county should have secured permits under the CWA for a wastewater injection facility releasing pollutants into groundwater that later reached the Pacific Ocean.

The 9th U.S. Circuit Court of Appeals initially held that the wastewater facility was subject to CWA permitting requirements because the pollution in the ocean was “fairly traceable” to the facility’s wells; however, the justices sought a more limited test that would prevent regulated entities from avoiding CWA requirements while at the same time not expanding the CWA’s reach.

Next Action: The Court remanded the case to the 9th Circuit for further consideration in light of the new discharge test.