ILMA Compoundings - April 2020 - 44

Continued from page 40
The Montana Supreme Court rejected
Atlantic Richfield's arguments, holding that a jury could award money
damages to the landowners to restore
their land, even if it upsets the EPA's
remediation plan. The court found that
the landowners' lawsuit did not "ask
the Court to interfere with EPA's plan."
The U.S. Supreme Court agreed to
review the case to address CERCLA's
scope. What is interesting to me is that
the case does not split along the usual
ideological lines. While the Trump
administration, the U.S. Chamber of
Commerce and some conservatives
have sided with Atlantic Richfield,
other conservative groups, including
the Pacific Legal Foundation, have
joined with 15 Democrat attorneys
general, Montana environmentalists
and public citizens in supporting the
landowners in friend-of-the-court
briefs to the Supreme Court.
At the Dec. 3 oral arguments, the
justices' questions focused on the
interplay between the EPA's authority
under CERCLA to order remediation
and landowners or a state's ability to
make "modifications" to a Superfund
site's cleanup plan. For example, Justice Sonia Sotomayor asked whether

the EPA's remediation plan, known as
a "Record of Decision," imposes both
a floor and a ceiling on the remediation or whether it sets only a floor.
Atlantic Richfield's counsel argued
that the EPA's cleanup orders "impose
both a floor and a ceiling on the type
of cleanup" allowed for a site.
The Supreme Court should issue
its opinion by the end of its term in
late June. I expect the court's decision
will affect all Superfund sites under
the EPA's control and direction. The
Supreme Court can provide clarity as
to how the EPA's cleanup remedies are
challenged, whether state law remedies
can be used in shaping post-remedy
selection of cleanups at Superfund
sites and whether state law remediation claims survive the EPA's remedy
selection. If the court preempts
inconsistent state claims, barring
landowners from seeking separate
relief, they will be incentivized then to
participate more heavily in the "front
end" of the EPA's remedy-selection
process. If the Supreme Court holds
that the "restoration remedies" are separate and distinct from the CERCLA
claims, then potentially responsible
parties at the Superfund may be less
inclined to reach early, negotiated

settlements with the EPA, because
it would disrupt the legal certainty
parties get when agreeing to a cleanup
plan with the EPA under CERCLA.
There is also a chance that the
Supreme Court may not make it to
the question of state vs. federal powers
at the core of Christian. The justices
could decide the case on the grounds
that the Montana Supreme Court's
decision is not yet ripe for review
- the course of action the Trump
administration recommended before
the justices agreed to hear the case.
I will be watching to see if the court
relies on a recent case concerning
a Virginia uranium mining ban. In
Virginia Uranium Inc. v. Warren, the
justices, in an unusual 3-3-3 split,
ruled that federal law does not prohibit a longstanding Virginia ban on
uranium development.
ILMA will report on the decision
after it is handed down. I hope to
see many of you at ILMA Engage
in Asheville.

Continued from page 42
Act would let workers go to court while
their complaint is working its way
through administrative review. Employers would have to effectively fight two
claims at once, especially as the PRO Act
grants class-action rights to workers.
Next up, right-to-work laws would
be preempted in all 50 states, requiring employees covered by a collective
bargaining agreement to pay fees to
the union administering the deal.
Collective bargaining would be faster,
using mediation and binding arbitrations to force a "first agreement" as a

replacement agreement is negotiated.
Candidates, such as Sanders, support
these changes, including the general
elimination of "at-will employment,"
which would require employers
to show cause for terminating an
employee if challenged.
The third major overhaul under the
PRO Act would make California's AB5
national law. For those unfamiliar,
California AB5 is based on a decision
by the state's Supreme Court that most
workers are actually employees and are
entitled to employer-provided benefits
such as health care. To avoid the

sudden addition of new employees,
employers have the burden of proving
that a worker should not be considered an employee. As around 36% of
U.S. workers are involved in the gig
economy, the PRO Act would burden
employers with new employees who
may not necessarily wish to be considered employees and, at a minimum,
increase administrative headaches.

44

APRIL 2020

| COMPOUNDINGS | ILMA.ORG

Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.

Levetown serves as associate
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be reached
at 202-466-6502 or mlevetown@bmalaw.net.
http://www.ILMA.ORG
ILMA Compoundings - April 2020

Table of Contents for the Digital Edition of ILMA Compoundings - April 2020
