Legal Docket - Cleaning up industrial pollution

NICK EICHER, HOST: It’s Monday morning and time to get back to work this 13th of January, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. The Supreme Court is back from break and has oral arguments on the schedule for this week. Today we’ll do some more catching up on arguments from December. 

Up first: industrial pollution, and who’s responsible for cleanup.

It’s expensive work. At an old copper smelter site in the tiny town of Opportunity, Montana, cleanup expenses are approaching half a billion dollars—that’s billion with a b. Half a billion so far.

Under the federal Superfund law approved back in 1980, taxpayers and the party responsible for the contamination have to foot the bill. Superfund gives EPA the power to direct cleanup of contaminated sites. The question now is whether affected landowners can sue under state law to obtain additional funding.

EICHER: Here’s some background. 

At its height, the Anaconda Copper Mining Company was the fourth-largest company in America, and was the dominant player in Montana’s economy—employing three-fourths of the state workforce.

But Anaconda took a big hit in the 1970s during the energy crisis and the low-growth, high-inflation economy. Anaconda sold to Atlantic Richfield, on the hope the industry would turn around. 

It didn’t. 

The smelter closed in 1980, the same year the Superfund law passed. The company left 300 square miles around the smelter site contaminated with arsenic and lead. EPA put it on the list of sites to clean up.

For nearly 40 years the EPA and the site’s current corporate owner worked to restore the land.

REICHARD: But about 100 homeowners in the area say the job remains undone. Heavy metals remain in the soil and water. They fear for their health.

So they sued the company for funds to complete the restoration of their properties themselves. And the Montana Supreme Court ruled the landowners could pursue up to $58 million in additional claims.

That puts Atlantic Richfield on the hook for even more money. Its lawyer, Lisa Blatt, argues that puts her client in an impossible position: setting up the landowners’ plans against those of the EPA.

BLATT: All of the pillars of their plan violate EPA’s order … . Now Atlantic Richfield cannot carry out that plan without massive fines and violating law. In the order, it says undertaking any action without EPA’s approval violates the order.

Not only that, but messing around with that property could disturb soil that EPA has determined should remain undisturbed. That invites more trouble if landowners are allowed to go outside EPA and undo its plan. 

But the landowners’ lawyer, Joseph Palmore, calls that an overstatement of facts on the ground. 

PALMORE: The vast majority of my clients have had zero work done on their land. And if you put all their land together, the work has been done on only 5 percent, okay? So, on 95 percent of the land, literally nothing has been done. So there’s no undoing there.

Some justices looked for a simple way through this. For example, just have the landowners ask permission from EPA before doing anything to remediate their property. 

It was tough going for Palmore, lawyer for the landowners. Listen to this exchange with Chief Justice John Roberts.

PALMORE: They’re saying that my clients in Opportunity, Montana, have to get permission from EPA in Washington if they want to dig out part of their backyard to put in a sandbox for their grandchildren and —

ROBERTS: … you can say dig out part of their backyard. EPA would say if you want to disturb arsenic-infected land, dirt in a way that would not only harm your neighbors but could harm people many — many miles away. I mean, yes, you want to just do things on your land, but you can’t overlook the fact that that is going to have harmful effects on everybody else around you.

I think there’s a good chance this one will be remanded to lower court. For one thing, EPA says its cleanup plan won’t be finished until 2025. It makes some sense to let that play out before letting the landowners’ case proceed, although landowners are frustrated by the long wait. But the law has no deadline in it. 

The United States has more than a thousand Superfund sites. The court’s decision here could reshape the contours of individual, state, and federal cleanup efforts for years to come.

This next case is another ERISA dispute, one of three that the Supreme Court hears this term. That tells you something about the confusion that is that law. 

ERISA is an acronym that stands for Employee Retirement Income Security Act. It governs private company retirement plans.

Here, a former employee of Intel Corporation sues under ERISA because he thinks the retirement fund was managed poorly. 

The legal question involves the time within which such a lawsuit must be brought or be barred from bringing the case at all.  It’s either six years or three years, depending upon when you have “actual knowledge” something’s gone awry.

Now ask yourself: all that mail—physical and electronic—that you receive about your investments, doesn’t it frequently just end up in the trash, unread?

If so, you’re just like a certain justice of the Supreme Court. This is Justice Ruth Bader Ginsburg.

GINSBURG: And it’s hard to read the word “actual” to mean something other than yes, I, in fact, know. And…there are many people who don’t read these mailings. I must say I don’t read all the mailings that I get about my investments.  (Laughter.)

Intel argues it’s following ERISA’s requirement that companies send out disclosures about its investments. But it can’t be faulted if people don’t actually read them.

The important phrase here is “actual knowledge,” and it isn’t defined in the law, hence the dispute.

You can imagine that some people will claim they didn’t read the disclosures, and therefore have no “actual knowledge,” just to gain more time in which to sue. 

Congress could clear this up in an instant with a uniform time limitation. 

Meanwhile, the justices will have to choose between the plain text of the law and what most district courts have decided—and that favors the employee who didn’t read his mail.

This next case involves horrendous crimes by a man who had a horrendous childhood. Unspeakable abuse. And I’ll spare you the details. 

James McKinney dropped out of school in 7th grade. In 1991, when he was 23, he murdered two people in Arizona. A jury found him guilty. The penalty phase involved a separate hearing before a judge, who sentenced McKinney to death. Years have passed since that sentence in 1993, with many many trips to court. 

You can hear the gist of McKinney’s petition to the Supreme Court in this, from his lawyer, Neil Katyal:

KATYAL: The State seeks to put James McKinney to death even though he’s never once had a sentencing proceeding that complies with current law… . We’re not talking about some technical violation here or something. We’re talking about the heart of what capital punishment sentencing is all about, the weighing of mitigating and aggravating circumstances.

Katyal said current law. That’s key. 

The law in Arizona at the time of McKinney’s sentencing was different. 

The judge permitted McKinney to show evidence of his abusive childhood. But that would not mitigate or lessen his sentence unless it established a causal connection from the abusive childhood to the murders. 

In this case, the judge found no connection between McKinney’s diagnosis of PTSD and the crimes he committed, so no mitigation figured into his sentence.

A few years later, the U.S. Supreme Court found Arizona’s sentencing procedure unconstitutional, in a case called Ring v Arizona. But it wasn’t applied retroactively to cases like McKinney’s.

This case was reopened by the 9th U.S. Circuit Court of Appeals in 2014. 

But the question now is whether the Arizona Supreme Court is required to apply current law about mitigating evidence in old death penalty cases.

Justice Brett Kavanaugh didn’t seem to think so.

KAVANAUGH: You are requiring a new jury sentencing 28 years after the murders and after the victims’ families have been through this for three decades…. Why go back to a jury re-sentencing 28 years later?

Nor did Justice Samuel Alito.

ALITO: What you really want is another shot at convincing a jury …You want… effectively a retroactive application of Ring and your real beef is …with the actual sentence that the jury decided to impose.

KATYAL: I couldn’t disagree more profoundly with that.

The justices grappled with what kind of new sentencing McKinney was entitled to—a review of the case on the record before it, on paper alone? 

Or a completely new rehearing with experts and witnesses and a jury? That’s what McKinney seeks.

The conservative leaning justices were more sympathetic to the arguments of Arizona’s lawyer: that what McKinney really wants is a sort of windfall, a double crack at a case that should be closed. 

The liberal leaning justices seemed to favor McKinney. Katyal, again his lawyer, ended with this:

KATYAL: Why is an aggravating circumstance different than a mitigating one? Because mitigating ones go to mercy in which this court in Caldwell has said that’s the thing in which you need the trial court to see up front and personal as opposed to on a cold record.

The bench sounded quite split on this case. It’s possible the justices could agree to give McKinney a new sentencing hearing. And they could limit it to only a judge to assess mitigating factors like childhood abuse, and not convene another jury.

This last case I’ll keep short. It’s quite technical.

A man convicted of assault received a sentence of 30 years in prison. He filed various paperwork to have his case reconsidered. Courts denied his attempts. One reason was for filing too late. But he argued that particular late filing could be recharacterized as something that has a longer time in which to sue.

From my reading of the case, I’ll just say, it’s the sort of dispute that might make you glad you’re not a Supreme Court justice. But if it’s your case, you have to be glad there’s a Supreme Court to hear it.

And that’s this week’s Legal Docket!

(AP Photo/J. Scott Applewhite) In this June 17, 2019 photo, The Supreme Court is shown in Washington. 

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