Federalism and Environmental Advocacy

Last year, I wrote that public interest advocates should view environmental federalism as an opportunity to promote state-law environmental protections. At the time, the U.S. Supreme Court had just upheld a state-law ban on uranium mining.

In Virginia Uranium v. Warren, the Supreme Court rejected a mining industry claim that Virginia’s conservation law was preempted by the federal Atomic Energy Act. Justice Neil Gorsuch authored the plurality opinion, joined by Justices Clarence Thomas and Brett Kavanaugh. Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan concurred in the Court’s judgment only.

In rejecting the preemption claim, Justice Gorsuch outlined a limited view of the Supremacy Clause. “Invoking some brooding federal interest or appealing to a judicial policy preference,” he wrote, “should never be enough to win preemption of a state law.”

Environmental groups heralded Virginia Uranium as a major victory. The question now is whether Justice Gorsuch’s plurality opinion in that case points the way toward a broader strategy for environmental activists.

Will state-centric environmentalism have some staying power? Three decisions from the Supreme Court’s latest term—Atlantic Richfield, County of Maui, and Cowpasture River Preservation Association—are beginning to give us some clues.

The first environmental case this past year to pit state environmental law against a sweeping, federal regulatory regime was Atlantic Richfield v. Christian. In this case, the Court considered Montanans’ common law access to restoration damages—namely, returning properties to pre-contamination conditions, even if the costs of remediation exceed the value of the properties.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) directs the U.S. Environmental Protection Agency (EPA) to manage environmental cleanups at some of the country’s worst hazardous pollution sites, which EPA places on a national priorities list. These sites are known as superfund sites.

The question before the Court in Atlantic Richfield was whether state common-law claims could supplement EPA’s cleanup plan at a massive, 300-square mile superfund site surrounding the now-defunct Anaconda copper mine, which first began operations 140 years ago.

From its earliest days, mining operations at Anaconda sparked controversy. In Bliss v. Anaconda Copper Mining Co., a case from 1909, farmers near the mine site complained that Anaconda caused such quantities of sulfur and arsenic to be “discharged into the air” that nearby crops and livestock “were being poisoned.” Decades before Bliss, at least as far back as 1870, Montana courts had adjudicated similar environmental claims at other sites.

In the recent case before the Supreme Court, the Atlantic Richfield Company insisted that CERCLA should largely preempt this long history of Montana law and that the case should be dismissed on jurisdictional grounds.

The Court was nearly unanimous—with only Justice Samuel Alito dissenting—in rejecting such a broad view of the federal superfund scheme, highlighting a “‘deeply rooted presumption in favor of concurrent state court jurisdiction.’”

And so, an appeal to federalism appears to have won the jurisdictional battle in Atlantic Richfield. The Court upheld the authority of Montana courts to hear state law challenges to superfund cleanups.

But state-based environmentalists did not win the war—at least not outright.

The Court in Atlantic Richfield went on to address the merits of the Montana landowners’ claims for cleanup costs under state law. The Court, with Justices Gorsuch and Thomas now dissenting, held that Montana landowners could only secure remediation under state law if they “first obtained EPA approval for the remedial work they seek to carry out.” In other words, state law might supplement a superfund remedy, but only if EPA decreed that the supplemental measures would not undermine a federal plan.

Justice Gorsuch’s views on federalism anchored his dissent on this issue. “The landowners here proceeded as landowners historically have: They sought remedies for the pollution on their lands in state court under state law.” For Justice Gorsuch, “their choice can come as no surprise.”

“The federal government enjoys no general power to regulate private lands; it may intervene only consistent with the Commerce Clause or some other constitutionally enumerated power,” he continued.

Justice Gorsuch was particularly forceful in underscoring the acute environmental threats that the landowners faced and that EPA had overlooked. For example, at least one daycare owner’s playground was left un-remediated by EPA, despite the presence of alarmingly high arsenic levels in the soil.

As director of the University of Virginia’s environmental law clinic, I worked with our students on an amicus brief on behalf of the Clark Fork Coalition and Montana Environmental Information Center, which argued that Congress added CERCLA onto a “well-established body of state law … with savings clauses that guarantee the federal act will supplement—but not supplant—Montana’s pre-existing, common law damage remedies.” Justice Gorsuch articulated a similar point, explaining that “everything in CERCLA suggests that it seeks to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land.”

Just three days after Atlantic Richfield, the Court announced its decision in County of Maui v. Hawaii Wildlife Fund, a blockbuster Clean Water Act case. The thrust of the dispute was whether the federal Clean Water Act would require a “point source” permit for a local government’s wastewater treatment wells, or whether regulation of those wells would be left to a woefully inadequate state-managed program.

On behalf of two local governments struggling to resolve their own water contamination problems, I again coauthored an amicus brief that articulated a pro-environment view in favor of federal regulation.

In addition to provisions defining discharges that fall under federal control, the Clean Water Act includes a citizen suit provision that authorizes municipalities to “commence a civil action” to enforce point source requirements. “In situations such as these, where local water quality is harmed by point source pollution, municipalities have the statutorily guaranteed authority to respond,” my coauthors and I explained in our brief. If the Court accepted the County of Maui’s position and held that indirect discharges were not covered under the Clean Water Act, it would effectively repeal the citizen suit provision in many cases and “remove a vital tool that Congress crafted for local government amici to protect our own communities.”

Fortunately, the majority in County of Maui confirmed that the Clean Water Act’s permitting requirement applies to direct discharges into federally protected waters and indirect discharges that are the “functional equivalent” of a direct discharge. In a remarkable victory for environmentalists, the Court remanded the case to lower courts and made it clear that a federal permit is almost certainly required for the county’s wastewater treatment wells.

Justice Thomas and Justice Gorsuch dissented on federalism grounds. Justice Thomas opined that his interpretation would “tie the statute more closely to navigable waters, on the theory that they are at least a channel of these kinds of commerce” encompassed by Article 1, Section 8 of the U.S. Constitution, which enumerates Congress’s powers.

The third environmental case from this term was U.S. Forest Service v. Cowpasture River Preservation Association. In this case, the Court considered whether parts of the Appalachian Trail might qualify as National Park Service lands, thereby protecting them from a proposed natural gas pipeline. With incredible work from our clinic students, I again submitted an amicus brief. On behalf of the City of Staunton and Nelson County, we explained how the Appalachian Trail experience was important to local tourism economies. That recreational experience, we argued, merited the same level of protection that any other national park would receive.

Yet the Court ruled in favor of the pipeline company and upheld the U.S. Forest Service’s authority to grant a permit under the Mineral Leasing Act. Justice Thomas, joined by all but Justices Kagan and Sotomayor, wrote that awarding a heightened level of protection to the trail would raise “striking implications for federalism” and could imperil private property rights where national historic and scenic trails “cross lands owned by states, local governments, and private landowners.”

So, what do we make of these cases?

On the one hand, Justice Gorsuch’s dissent in Atlantic Richfield confirms that there are sympathetic members of the Court who are unsettled by the federal government’s apparent failure to resolve environmental problems, especially when state law might provide a fuller remedy. Yet the Court’s federalists appear not to be swayed when the shoe is on the other foot and the environmental failure is the result of an inadequate state program. “We are not a superlegislature (or super-EPA) tasked with making good policy,” Justice Thomas wrote in his County of Maui dissent. And again in the Cowpasture case, the Court held that federalism doctrine cut against environmentalists’ concerns.

With the limited data at hand from the Court’s latest term, it seems that appeals to federalism are proving to be a mixed bag for environmentalists.

Cale Jaffe is an associate professor of law and the director of the Environmental Law and Community Engagement Clinic at the University of Virginia School of Law.