Supreme Court Debates Pollution Lawsuits

The Supreme Court considered last week whether companies that voluntarily seek to clean up their polluted land can sue former owners to get help with the costs. The case could have important ramifications for communities with abandoned toxic plants, landfills and mines.

Federal law allows the Environmental Protection Agency (EPA) to designate as “Superfund” sites areas that are highly polluted. Officials can seek money from current and former owners for the cleanup costs.

The case before the justices asks whether the Superfund law can be used by the owners of the many thousands of properties in which the government has not gotten involved and demanded cleanup.

During the argument, Justice Ruth Bader Ginsburg was the only court member who appeared troubled about preventing such lawsuits.

“You might be sitting around waiting forever until EPA comes after you,” she said. “It seems like EPA has higher priorities.”

The case has pitted the Bush administration against 23 states that argue the Superfund law, passed in 1980, allows lawsuits when companies on their own initiative seek to clean their properties. Those efforts often are very expensive, and can involve multiple former owners.

Bush administration lawyer Jeffrey Minear said that companies can still purge land, but they have to work with the government in advance to make sure it’s done properly.

Companies are closely watching the case.

“In today’s business climate, corporations do want to be the responsible corporate citizen and clean up their properties,” said Jane Kozinski, an environmental law lawyer in Princeton, N.J.

Many communities have sites that have been designated as polluted or potentially contaminated by the government. Jonathan Cannon, the former top lawyer at the EPA who now teaches law at the University of Virginia, said many such locations in the middle of cities could benefit from new economic development.

“The vast majority of those tens of thousands of sites never get much attention from the EPA,” he said.

At issue for the court is a dispute over property in Dallas that had been home to four aircraft engine maintenance businesses.

Aviall Services Inc. bought the land in 1981 and spent about $5 million cleaning pollution it caused and that the former owner was responsible for. The work was done at the prodding of a state conservation agency, and Aviall went to court to recover some of the money from the past owner, electrical product maker Cooper Industries.

Aviall attorney Richard Faulk of Houston said that “standing in line” waiting for federal regulators to get around to the project wasn’t an option because of concerns about a nearby lake and groundwater.

Cooper Industries lawyer William Reynolds of Washington said government involvement is needed to ensure a thorough cleanup.

The 5th U.S. Circuit Court of Appeals in New Orleans ruled that Aviall could sue, though the court said that “reasonable minds can differ over” the Superfund law because of its inexact grammar.

Justice Sandra Day O’Connor, echoing other justices, said that the part of the law at issue in the case didn’t seem to allow such lawsuits. “Perhaps Congress should have used different language. That’s our problem. We can’t make it up.”

She indicated that the fight might be far from over, because another part of the Superfund law could be interpreted to allow lawsuits.

The states that asked the high court to uphold the lower court decision were: Arizona, California, Colorado, Connecticut, Delaware, Illinois, Louisiana, Massachusetts, Michigan, Missouri, Montana, Nevada, North Dakota, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Washington, Wisconsin and Wyoming.

The case is Cooper Industries Inc. v. Aviall Services, Inc., 02-1192.

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