B Y J O N AT H A N W O O D
How Federal Regulations Pre-Empt Real Property Rights A Montana case is no surprise to Canadians who are familiar with how regulatory regimes protect industry from landowners
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or more than a century, a copper smelter in Opportunity, Montana, emitted thousands of tons of toxic metals, polluting its neighbours’ properties and creating effects still felt today. In a few months, the Supreme Court of the United States will consider whether those neighbours can hold the polluter responsible for the effects, or whether a federal law intended to encourage environmental remediation actually discourages it. In Atlantic Richfield Co. v Christian, the neighbours have sued the current owner of the smelter seeking a variety of compensatory damages, including funds to remove arsenic and other pollutants from their properties. Such claims are an important means for property rights to promote better environmental outcomes, by requiring
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polluters to account for the costs of their activities imposed on others. The company (Atlantic Richfield Co.) responds that its neighbours have no right to seek that compensation. Previously, it complied with an EPA-ordered cleanup of the properties and argues that, under the federal law that empowers EPA to force such cleanups, the company can’t be required to fund any further remediation. Its neighbours’ common-law property rights, in other words, are pre-empted by federal law. The federal law—the Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund—allows EPA and others to clean up polluted properties
at the expense of those responsible for the pollution. Thus, there’s at least some tension in the argument that a law meant to facilitate remediation actually blocks it. The conflict isn’t unique to Superfund. Regulated parties have long argued that their federal permits under the Clean Air Act, Clean Water Act, and other laws protect them from their neighbours’ property-rights claims. For instance, air-pollution emitters have argued that, having received a federal permit, they cannot be made to do more. So far, that argument has received a cold reception in state and federal courts. The argument has fared no better under Superfund. This is due, in
“Regulated parties have long argued that their federal permits protect them from their neighbours’ property-rights claims.”