(Slip Opinion) OCTOBER TERM, 2019 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

ATLANTIC RICHFIELD CO. v. CHRISTIAN ET AL. 

CERTIORARI TO THE SUPREME COURT OF MONTANA 

No. 17–1498. Argued December 3, 2019—Decided April 20, 2020 

The Comprehensive Environmental Response, Compensation, and Liability Act, 42 U. S. C. §9601 et seq., also known as the Superfund statute, promotes “the timely cleanup of hazardous waste sites and [ensures] that the costs of such cleanup efforts [are] borne by those 

responsible for the contamination,” CTS Corp. v. Waldburger, 573 

U. S. 1, 4 (internal quotation marks omitted). The Act directs the Environmental Protection Agency to compile and annually revise a prioritized list of contaminated sites for cleanup, known as Superfund sites, 

and makes responsible parties liable for the cost of the cleanup. Before 

a cleanup plan is selected, a remedial investigation and feasibility

study is conducted to assess the contamination and evaluate cleanup 

options. Once that study begins, §122(e)(6) of the Act provides, “no 

potentially responsible party may undertake any remedial action” at 

the site without EPA approval. To insulate cleanup plans from collateral attack, §113(b) provides federal district courts with “exclusive 

original jurisdiction over all controversies arising under” the Act, and

§113(h) then strips those courts of jurisdiction “to review any challenges to removal or remedial action,” except in five limited circumstances.

For nearly a century, the Anaconda Copper Smelter in Butte, Montana contaminated an area of over 300 square miles with arsenic and 

lead. Over the past 35 years, EPA has worked with the current owner 

of the now-closed smelter, Atlantic Richfield Company, to implement 

a cleanup plan for a remediation expected to continue through 2025.

A group of 98 landowners sued Atlantic Richfield in Montana state

court for common law nuisance, trespass, and strict liability, seeking 

restoration damages, which Montana law requires to be spent on property rehabilitation. The landowners’ proposed plan exceeds the 
 

 

 

 

 

 

2 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Syllabus 

measures found necessary to protect human health and the environment by EPA. The trial court granted summary judgment to the landowners on the issue of whether the Act precluded their restoration

damages claim and allowed the lawsuit to continue. After granting a

writ of supervisory control, the Montana Supreme Court affirmed, rejecting Atlantic Richfield’s argument that §113 stripped the Montana 

courts of jurisdiction over the landowners’ claim and concluding that

the landowners were not potentially responsible parties (or PRPs) prohibited from taking remedial action without EPA approval under 

§122(e)(6). 

Held: 

1. This Court has jurisdiction to review the Montana Supreme

Court’s decision. To qualify as a final judgment subject to review under 28 U. S. C. §1257(a), a state court judgment must be “an effective 

determination of the litigation and not of merely interlocutory or intermediate steps therein.” Jefferson v. City of Tarrant, 522 U. S. 75, 

81. Under Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal. Mont. Const., Art. VII, 

§§2(1)–(2); Mont. Rules App. Proc. 6(6), 14(1), 14(3). Thus, the writ 

issued in this case is a “final judgment” within this Court’s jurisdiction. 

Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 

382, 385, n. 7. P. 8. 

2. The Act does not strip the Montana courts of jurisdiction over this 

lawsuit. Section 113(b) of the Act provides that “the United States 

district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction 

over such actions. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, 

or treaties of the United States.” 28 U. S. C. §1331. In the mine run 

of cases, “[a] suit arises under the law that creates the cause of action.” 

American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260. 

The landowners’ common law nuisance, trespass, and strict liability

claims arise under Montana law and not under the Act. 

Atlantic Richfield mistakenly argues that §113(h)—which states 

that “[n]o Federal court shall have jurisdiction under Federal law . . . 

to review any challenges to removal or remedial action” selected under 

the Act—implicitly broadens the scope of actions precluded from state 

court jurisdiction under §113(b). But §113(h) speaks of “Federal 

court[s],” not state courts. There is no textual basis for Atlantic Richfield’s argument that Congress precluded state courts from hearing a 

category of cases in §113(b) by stripping federal courts of jurisdiction 

over those cases in §113(h). Often the simplest explanation is the best:

Section 113(b) deprives state courts of jurisdiction over cases “arising 
 

 

 

 

 

 

 

Cite as: 590 U. S. ____ (2020) 3 

Syllabus 

under” the Act—just as it says—while §113(h) deprives federal courts 

of jurisdiction over certain “challenges” to Superfund remedial actions—just as it says. Pp. 8–13.

3. The Montana Supreme Court erred by holding that the landowners were not potentially responsible parties under the Act and thus did 

not need EPA approval to take remedial action. To determine who is 

a potentially responsible party, the Court looks to the list of “covered

persons” in §107, the Act’s liability section, which includes any “owner” 

of “a facility.” “Facility” in turn is defined to include “any site or area 

where a hazardous substance has been deposited, stored, disposed of,

or placed, or otherwise come to be located.” 42 U. S. C. §9601(9)(B). 

Because arsenic and lead are hazardous substances that have “come 

to be located” on the landowners’ properties, the landowners are potentially responsible parties.

The landowners argue they are no longer potentially responsible 

parties because the Act’s six-year limitations period for recovery of remedial costs has run, and thus they could not be held liable in a hypothetical lawsuit. But even “ ‘innocent’ . . . landowner[s] whose land has 

been contaminated by another,” and who are thus shielded from liability by §107(b)(3)’s so-called “innocent landowner” or “third party” defense, “may fall within the broad definitions of PRPs in §§107(a)(1)–

(4).” United States v. Atlantic Research Corp., 551 U. S. 128, 136. The 

same principle holds true for parties facing no liability because of the 

Act’s limitations period. 

Interpreting “potentially responsible parties” to include owners of 

polluted property reflects the Act’s objective to develop a “Comprehensive Environmental Response” to hazardous waste pollution. Section 

122(e)(6) is one of several tools in the Act that ensure the careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.

Yet under the landowners’ interpretation, property owners would be 

free to dig up arsenic-infected soil and build trenches to redirect leadcontaminated groundwater without even notifying EPA, so long as 

they have not been sued within six years of commencement of the 

cleanup. Congress did not provide such a fragile remedy for such a 

serious problem.

The landowners alternatively argue that they are not potentially responsible parties because they did not receive the notice of settlement 

negotiations required by §122(e)(1). EPA has a policy of not suing innocent homeowners for pollution they did not cause, so it did not include the landowners in settlement negotiations. But EPA’s nonenforcement policy does not alter the landowners’ status as potentially 

responsible parties. Section 107(a) unambiguously defines potentially 
 

 

 

 

 

4 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Syllabus 

responsible parties, and EPA does not have authority to alter that definition. 

The landowners also argue that §122(e)(6) cannot carry the weight

ascribed to it because it is located in the section on settlement negotiations. Settlements, however, are the heart of the Superfund statute.

Section 122(a) of the Act commands EPA to proceed by settlement 

“[w]henever practicable and in the public interest . . . in order to expedite effective remedial actions and minimize litigation.” And EPA’s 

efforts to negotiate settlement agreements and issue orders for cleanups account for approximately 69% of all cleanup work currently underway. Pp. 13–21. 

390 Mont. 76, 408 P. 3d 515, affirmed in part, vacated in part, and remanded. 

ROBERTS, C. J., delivered the opinion of the Court, Parts I and II–A of 

which were unanimous, Part II–B of which was joined by THOMAS, GINSBURG, BREYER, SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., and 

Part III of which was joined by GINSBURG, BREYER, ALITO, SOTOMAYOR, 

KAGAN, and KAVANAUGH, JJ. ALITO, J., filed an opinion concurring in

part and dissenting in part. GORSUCH, J., filed an opinion concurring 

part and dissenting in part, in which THOMAS, J., joined. 
 

 

 

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 17–1498 

ATLANTIC RICHFIELD COMPANY, PETITIONER v. 

GREGORY A. CHRISTIAN, ET AL. 

ON WRIT OF CERTIORARI TO THE SUPREME 

COURT OF MONTANA 

[April 20, 2020] 

CHIEF JUSTICE ROBERTS delivered the opinion of the 

Court. 

For nearly a century, the Anaconda Copper Smelter in

Butte, Montana contaminated an area of over 300 square

miles with arsenic and lead. Over the past 35 years, the

Environmental Protection Agency has worked with the 

current owner of the smelter, Atlantic Richfield Company, 

to implement a cleanup plan under the Comprehensive Environmental Response, Compensation, and Liability Act of 

1980. EPA projects that the cleanup will continue through 

2025. 

A group of 98 landowners sued Atlantic Richfield in 

Montana state court for common law nuisance, trespass, 

and strict liability. Among other remedies, the landowners

sought restoration damages, which under Montana law 

must be spent on rehabilitation of the property. The landowners’ proposed restoration plan includes measures beyond those the agency found necessary to protect human

health and the environment. 

We consider whether the Act strips the Montana courts

of jurisdiction over the landowners’ claim for restoration 
 

2 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

damages and, if not, whether the Act requires the landowners to seek EPA approval for their restoration plan. 

I 

A 

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 94 Stat. 

2767, as amended, 42 U. S. C. §9601 et seq., also known as 

the Superfund statute, to address “the serious environmental and health risks posed by industrial pollution,” Burlington N. & S. F. R. Co. v. United States, 556 U. S. 599, 602 

(2009). The Act seeks “to promote the timely cleanup of

hazardous waste sites and to ensure that the costs of 

such cleanup efforts [are] borne by those responsible for the 

contamination.” CTS Corp. v. Waldburger, 573 U. S. 1, 4 

(2014) (internal quotation marks omitted).

The Act directs EPA to compile and annually revise a prioritized list of contaminated sites for cleanup, commonly 

known as Superfund sites. 42 U. S. C. §9605.1 EPA may

clean those sites itself or compel responsible parties to perform the cleanup. §§9604, 9606, 9615. If the Government 

performs the cleanup, it may recover its costs from responsible parties. §9607(a)(4)(A). Responsible parties are

jointly and severally liable for the full cost of the cleanup,

but may seek contribution from other responsible parties.

§9613(f )(1). 

Prior to selecting a cleanup plan, EPA conducts (or orders 

a private party to conduct) a remedial investigation and 

feasibility study to assess the contamination and evaluate

cleanup options. 40 CFR §300.430 (2019). Section 122(e)(6) 

of the Act provides that, once the study begins, “no poten-

—————— 1The Act vests powers and duties in the President, who has delegated 

the responsibilities relevant here to the EPA Administrator. See 42 

U. S. C. §9615; Exec. Order No. 12580, 3 CFR §193 (1988). 
 

 

 

 

Cite as: 590 U. S. ____ (2020) 3 

Opinion of the Court 

tially responsible party may undertake any remedial action” at the site without EPA approval. 42 U. S. C. 

§9622(e)(6).

The Act prescribes extensive public consultation while a 

cleanup plan is being developed. It requires an opportunity

for public notice and comment on proposed cleanup plans. 

§§9613(k), 9617. It requires “substantial and meaningful involvement by each State in initiation, development, and selection” of cleanup actions in that State. 

§9621(f )(1). And, in most instances, it requires that 

remedial action comply with “legally applicable or relevant

and appropriate” requirements of state environmental law.

§9621(d)(2)(A).

But once a plan is selected, the time for debate ends and

the time for action begins. To insulate cleanup plans from

collateral attack, §113(b) of the Act provides federal district 

courts with “exclusive original jurisdiction over all controversies arising under” the Act, and §113(h) then strips such

courts of jurisdiction “to review any challenges to removal 

or remedial action,” except in five limited circumstances.

§§9613(b), (h). 

B 

Between 1884 and 1902, the Anaconda Copper Mining 

Company built three copper smelters 26 miles west of the 

mining town of Butte, Montana. The largest one, the 

Washoe Smelter, featured a 585-foot smoke stack, taller 

than the Washington Monument. The structure still towers 

over the area today, as part of the Anaconda Smoke Stack 

State Park. Together, the three smelters refined tens of 

millions of pounds of copper ore mined in Butte, the “Richest Hill on Earth,” to feed burgeoning demand for telephone 

wires and power lines. M. Malone, The Battle for Butte 34 

(1981). “It was hot. It was dirty. It was dangerous. But it 

was a job for thousands.” Dunlap, A Dangerous Job That 

Gave Life to a Town: A Look Back at the Anaconda Smelter, 
 

4 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

Montana Standard (Aug. 8, 2018). From 1912 to 1973, Anaconda Company payrolls totaled over $2.5 billion, compensating around three-quarters of Montana’s work force.

Bust followed boom. By the 1970s, the falling price of

copper, an ongoing energy crisis, and the nationalization of 

Anaconda’s copper mines in Chile and Mexico squeezed Anaconda. But what others saw as an ailing relic, Atlantic

Richfield saw as a turnaround opportunity, purchasing the

Anaconda Company for the discount price of $700 million. 

Unfortunately, Atlantic Richfield was unable to revive Anaconda’s fortunes. By 1980 Atlantic Richfield had closed 

the facility for good, and by 1984 Fortune had dubbed the 

purchase one of the “Decade’s Worst Mergers.” Fisher, The 

Decade’s Worst Mergers, Fortune, Apr. 30, 1984, p. 262. 

Atlantic Richfield’s troubles were just beginning. After 

Congress passed the Superfund statute in 1980, Atlantic

Richfield faced strict and retroactive liability for the many

tons of arsenic and lead that Anaconda had spewed across 

the area over the previous century. In 1983, EPA designated an area of more than 300 square miles around the 

smelters as one of the inaugural Superfund sites. 48 Fed. 

Reg. 40667. In the 35 years since, EPA has managed an

extensive cleanup at the site, working with Atlantic Richfield to remediate more than 800 residential and commercial properties; remove 10 million cubic yards of tailings,

mine waste, and contaminated soil; cap in place 500 million 

cubic yards of waste over 5,000 acres; and reclaim 12,500

acres of land. EPA, Superfund Priority “Anaconda” 9 (Apr. 

2018), https://semspub.epa.gov/work/08/100003986.pdf. To 

date, Atlantic Richfield estimates that it has spent roughly

$450 million implementing EPA’s orders. 

More work remains. As of 2015, EPA’s plan anticipated 

cleanup of more than 1,000 additional residential yards, revegetation of 7,000 acres of uplands, removal of several 

waste areas, and closure of contaminated stream banks and 

railroad beds. Brief for United States as Amicus Curiae 
Cite as: 590 U. S. ____ (2020) 5 

Opinion of the Court 

7–8 (citing EPA, Fifth Five-Year Review Report: Anaconda

Smelter Superfund Site, Anaconda-Deer Lodge County, 

Montana, Table 10–1 (Sept. 25, 2015), https://semspub.epa.

gov/work/08/1549381.pdf ). EPA projects that remedial 

work will continue through 2025. Id., Table 10–7; Tr. of 

Oral Arg. 30. 

C 

In 2008, a group of 98 owners of property within the Superfund site filed this lawsuit against Atlantic Richfield in 

Montana state court, asserting trespass, nuisance, and 

strict liability claims under state common law. The landowners sought restoration damages, among other forms of 

relief. 

Under Montana law, property damages are generally 

measured by the “difference between the value of the property before and after the injury, or the diminution in value.” 

Sunburst School Dist. No. 2 v. Texaco, Inc., 338 Mont. 259, 

269, 165 P. 3d 1079, 1086 (2007). But “when the damaged 

property serves as a private residence and the plaintiff has 

an interest in having the property restored, diminution in

value will not return the plaintiff to the same position as 

before the tort.” Id., at 270, 165 P. 3d, at 1087. In that 

circumstance, the plaintiff may seek restoration damages, 

even if they exceed the property’s diminution in value. 

See ibid.; Restatement (Second) of Torts §929, and 

Comment b (1977).

To collect restoration damages, a plaintiff must demonstrate that he has “reasons personal” for restoring the property and that his injury is temporary and abatable, meaning “[t]he ability to repair [the] injury must be more than a 

theoretical possibility.” Sunburst School Dist. No. 2, 338 

Mont., at 269, 165 P. 3d, at 1086–1087. The injured party

must “establish that the award actually will be used for restoration.” Lampi v. Speed, 362 Mont. 122, 130, 261 P. 3d 

1000, 1006 (2011). 
 

6 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

The landowners here propose a restoration plan that goes 

beyond EPA’s own cleanup plan, which the agency had 

found “protective of human health and the environment.”

EPA, Community Soils Operable Unit, Record of Decision 

(1996), App. 62. See also 42 U. S. C. §9621(d)(1). For example, the landowners propose a maximum soil contamination level of 15 parts per million of arsenic, rather than the 

250 parts per million level set by EPA. And the landowners 

seek to excavate offending soil within residential yards to a

depth of two feet rather than EPA’s chosen depth of one.

The landowners also seek to capture and treat shallow 

groundwater through an 8,000-foot long, 15-foot deep, and 

3-foot wide underground permeable barrier, a plan the 

agency rejected as costly and unnecessary to secure safe 

drinking water.

The landowners estimate that their cleanup would cost

Atlantic Richfield $50 to $58 million. Atlantic Richfield 

would place that amount in a trust and the trustee would 

release funds only for restoration work.

In the trial court, Atlantic Richfield and the landowners 

filed competing motions for summary judgment on whether 

the Act precluded the landowners’ claim for restoration 

damages.2 The court granted judgment for the landowners

on that issue and allowed the lawsuit to continue. After 

granting a writ of supervisory control, the Montana Supreme Court affirmed. Atlantic Richfield Co. v. Montana 

Second Jud. Dist. Ct., 390 Mont. 76, 408 P. 3d 515 (2017). 

The Montana Supreme Court rejected Atlantic Richfield’s 

—————— 2Atlantic Richfield concedes that the Act preserves the landowners’ 

claims for other types of compensatory damages under Montana law, including loss of use and enjoyment of property, diminution of value, incidental and consequential damages, and annoyance and discomfort. See 

Atlantic Richfield Co. v. Montana Second Jud. Dist. Ct., 390 Mont. 76, 

79, 408 P. 3d 515, 518 (2017). We therefore consider only the landowners’ claim for restoration damages. 
Cite as: 590 U. S. ____ (2020) 7 

Opinion of the Court 

argument that §113 stripped the Montana courts of jurisdiction over the landowners’ claim for restoration damages. 

The court recognized that §113 strips federal courts (and, it

was willing to assume, state courts) of jurisdiction to review 

challenges to EPA cleanup plans. But the Montana Supreme Court reasoned that the landowners’ plan was not 

such a challenge because it would not “stop, delay, or 

change the work EPA is doing.” Id., at 83, 408 P. 3d, at 520. 

The landowners were “simply asking to be allowed to present their own plan to restore their own private property to 

a jury of twelve Montanans who will then assess the merits 

of that plan.” Id., at 84, 408 P. 3d, at 521. 

The Montana Supreme Court also rejected Atlantic Richfield’s argument that the landowners were potentially responsible parties (sometimes called PRPs) prohibited from

taking remedial action without EPA approval under 

§122(e)(6) of the Act. The Court observed that the landowners had “never been treated as PRPs for any purpose—by 

either EPA or [Atlantic Richfield]—during the entire thirtyplus years” since the designation of the Superfund site, and 

that the statute of limitations for a claim against the landowners had run. Id., at 86, 408 P. 3d, at 522. “Put simply,

the PRP horse left the barn decades ago.” Ibid. 

Justice Baker concurred, stressing that on remand Atlantic Richfield could potentially defeat the request for restoration damages on the merits by proving that the restoration plan conflicted with EPA’s cleanup plan. Id., at 87–90, 

408 P. 3d, at 523–525. Justice McKinnon dissented. She 

argued that the landowners’ restoration plan did conflict

with the Superfund cleanup and thus constituted a challenge under §113(h) of the Act, over which Montana courts

lacked jurisdiction. Id., at 90–101, 408 P. 3d, at 525–532. 

We granted certiorari. 587 U. S. ___ (2019). 

II 

We begin with two threshold questions: whether this 
 

 

8 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

Court has jurisdiction to review the decision of the Montana

Supreme Court and, if so, whether the Montana courts 

have jurisdiction over the landowners’ claim for restoration 

damages. 

A 

Congress has authorized this Court to review “[f]inal

judgments or decrees rendered by the highest court of a 

State.” 28 U. S. C. §1257(a). To qualify as final, a state 

court judgment must be “an effective determination of the 

litigation and not of merely interlocutory or intermediate

steps therein.” Jefferson v. City of Tarrant, 522 U. S. 75, 81 

(1997). The landowners contend that, because the Montana 

Supreme Court allowed the case to proceed to trial, its judgment was not final and we lack jurisdiction.

But the Montana Supreme Court exercised review in this

case through a writ of supervisory control. Under Montana 

law, a supervisory writ proceeding is a self-contained case, 

not an interlocutory appeal. Mont. Const., Art. VII, §§2(1)–

(2); Mont. Rules App. Proc. 6(6), 14(1), 14(3) (2019). Thus 

we have held that a “writ of supervisory control issued by 

the Montana Supreme Court is a final judgment within our

jurisdiction.” Fisher v. District Court of Sixteenth Judicial 

Dist. of Mont., 424 U. S. 382, 385, n. 7 (1976) (per curiam).

The landowners protest that our precedents only support 

reviewing supervisory writ proceedings that are limited to 

jurisdictional questions. But the scope of our jurisdiction to

review supervisory writ proceedings is not so restricted. 

When the Montana Supreme Court issues a writ of supervisory control, it initiates a separate lawsuit. It is the nature of the Montana proceeding, not the issues the state

court reviewed, that establishes our jurisdiction. 

B 

We likewise find that the Act does not strip the Montana

courts of jurisdiction over this lawsuit. It deprives state 
 

Cite as: 590 U. S. ____ (2020) 9 

Opinion of the Court 

courts of jurisdiction over claims brought under the Act.

But it does not displace state court jurisdiction over claims 

brought under other sources of law.3 

Section 113(b) of the Act provides that “the United States

district courts shall have exclusive original jurisdiction over

all controversies arising under this chapter,” so state courts

lack jurisdiction over such actions. 42 U. S. C. §9613(b). 

This case, however, does not “arise under” the Act. The use 

of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction

over “all civil actions arising under the Constitution, laws,

or treaties of the United States.” 28 U. S. C. §1331. In the 

mine run of cases, “[a] suit arises under the law that creates

the cause of action.” American Well Works Co. v. Layne & 

Bowler Co., 241 U. S. 257, 260 (1916).4 The landowners’ 

common law claims for nuisance, trespass, and strict liability therefore arise under Montana law and not under the 

—————— 3 JUSTICE ALITO argues that this jurisdictional question “may turn out 

not to matter in this case” because we remand for further proceedings

that may end the litigation. Post, at 2 (opinion concurring in part and 

dissenting in part). But Atlantic Richfield seeks more than a remand. It 

contends that the lawsuit should be dismissed because the Montana 

courts lack jurisdiction, and the Federal Government agrees. The difference between outright dismissal and further proceedings matters. We 

granted review of this issue and both parties have fully briefed and argued it. Simply leaving the question unanswered at this point would 

leave the parties in a state of uncertainty as to whether the litigation is

proceeding in the proper forum. We therefore find it both “necessary” 

and “prudent” to decide the issue. Post, at 1. 4There is a “special and small category of cases” that originate in state

law yet still arise under federal law for purposes of federal question jurisdiction. Gunn v. Minton, 568 U. S. 251, 258 (2013) (internal quotation 

marks omitted). To qualify for this narrow exception, a state law claim

must “necessarily raise[]” a federal issue, among other requirements. 

Ibid. No element of the landowners’ state common law claims necessarily raises a federal issue. Atlantic Richfield raises the Act as an affirmative defense, but “[f]ederal jurisdiction cannot be predicated on an

actual or anticipated defense.” Vaden v. Discover Bank, 556 U. S. 49, 60 

(2009). 
 

 

10 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

Act. As a result, the Montana courts retain jurisdiction

over this lawsuit, notwithstanding the channeling of Superfund claims to federal courts in §113(b).5 

Atlantic Richfield takes a different view, arguing that

§113(h) implicitly broadens the scope of actions precluded 

from state court jurisdiction under §113(b). Section 113(h)

states that “[n]o Federal court shall have jurisdiction under 

Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) . . . to review any 

challenges to removal or remedial action” selected under 

the Act. 42 U. S. C. §9613(h). 

The company’s argument proceeds in five steps. Step

one: Section 113(h) removes federal court jurisdiction over 

all cleanup challenges, regardless of whether they originate 

in federal or state law (except for when the court is sitting

in diversity). Step two: Section 113(h) can only remove jurisdiction that §113(b) provides in the first place. Step 

three: Section 113(b) thus provides federal courts jurisdiction over all cleanup challenges, whether brought under 

federal or state law. Step four: The grant of jurisdiction to

federal courts in §113(b) is exclusive to federal courts. Step

five: State courts thus do not have jurisdiction over cleanup 

challenges.

This interpretation faces several insurmountable obstacles. First, by its own terms, §113(h) speaks of “Federal 

court[s],” not state courts. There is no textual basis for Atlantic Richfield’s argument that Congress precluded state 

—————— 5Section 113(b) specifies that federal courts have exclusive jurisdiction

“without regard to the citizenship of the parties or the amount in controversy.” 42 U. S. C. §9613(b). This is somewhat redundant because all 

actions that “arise under” the Act necessarily satisfy federal question jurisdiction. But “[s]ometimes the better overall reading of the statute contains some redundancy.” Rimini Street, Inc. v. Oracle USA, Inc., 586 

U. S. ___, ___ (2019) (slip op., at 11). We find it much more likely that 

Congress employed a belt and suspenders approach to make sure that 

all CERCLA lawsuits are routed to federal court than that Congress intended the reference to federal courts in §113(h) to affect state courts. 
 

 

Cite as: 590 U. S. ____ (2020) 11 

Opinion of the Court 

courts from hearing a category of cases in §113(b) by stripping federal courts of jurisdiction over those cases in 

§113(h). And if that were Congress’s goal, it would be hard 

to imagine a more oblique way of achieving it. Often the 

simplest explanation is the best: Section 113(b) deprives

state courts of jurisdiction over cases “arising under” the

Act—just as it says—while §113(h) deprives federal courts

of jurisdiction over certain “challenges” to Superfund remedial actions—just as it says.

Second, the company’s argument does not account for the

exception in §113(h) for federal courts sitting in diversity.

Section 113(h) permits federal courts in diversity cases to 

entertain state law claims regardless of whether they are 

challenges to cleanup plans. See DePue v. Exxon Mobil 

Corp., 537 F. 3d 775, 784 (CA7 2008). But Atlantic Richfield does not even try to explain why the Act would permit 

such state law claims to proceed in federal court, but not in 

state court. The Act permits federal courts and state courts 

alike to entertain state law claims, including challenges to

cleanups.

That leads us to the third difficulty with Atlantic Richfield’s argument. We have recognized a “deeply rooted presumption in favor of concurrent state court jurisdiction”

over federal claims. Tafflin v. Levitt, 493 U. S. 455, 458– 

459 (1990). Only an “explicit statutory directive,” an “unmistakable implication from legislative history,” or “a clear 

incompatibility between state-court jurisdiction and federal 

interests” can displace this presumption. Id., at 460. Explicit, unmistakable, and clear are not words that describe

Atlantic Richfield’s knotty interpretation of §§113(b) 

and (h).

It would be one thing for Atlantic Richfield to try to surmount the clear statement rule that applies to the uncommon, but not unprecedented, step of stripping state courts 

of jurisdiction over federal claims. But Atlantic Richfield’s 

position requires a more ambitious step: Congress stripping 
 

 

12 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

state courts of jurisdiction to hear their own state claims. 

We would not expect Congress to take such an extraordinary step by implication. Yet the only provision Atlantic

Richfield invokes addresses “[f]ederal court[s]” without

even mentioning state courts, let alone stripping those

courts of jurisdiction to hear state law claims. 42 U. S. C. 

§9613(h).

Finally, the Government, supporting Atlantic Richfield, 

emphasizes that the opening clause of §113(b) excepts 

§113(h) from its application. See 42 U. S. C. §9613(b) (“Except as provided in subsections (a) and (h) of this section 

. . . .”). According to the Government, because “exceptions

must by definition be narrower than the corresponding 

rule,” all challenges to remedial plans under §113(h)—

whether based in federal or state law—must “arise under” 

the Act for purposes of §113(b). Brief for United States as 

Amicus Curiae 25. 

We reject the premise and with it the conclusion. “Thousands of statutory provisions use the phrase ‘except as provided in . . . ’ followed by a cross-reference in order to indicate that one rule should prevail over another in any

circumstance in which the two conflict.” Cyan, Inc. v. Beaver County Employees Retirement Fund, 583 U. S. ___, ___ 

(2018) (slip op., at 9). Such clauses explain what happens

in the case of a clash, but they do not otherwise expand or 

contract the scope of either provision by implication. Cf. 

NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (slip 

op., at 11) (explaining the same principle for “notwithstanding” clauses).

The actions referred to in §113(h) do not fall entirely 

within §113(b). Challenges to remedial actions under federal statutes other than the Act, for example, are precluded 

by §113(h) but do not fall within §113(b). To cite another 

example, §113(h) addresses state law challenges to cleanup 

plans in federal court, although those actions also do not 
 

Cite as: 590 U. S. ____ (2020) 13 

Opinion of the Court 

fall within §113(b).6 At the same time, §113(b) is not subsumed by §113(h). Many claims brought under the Act, 

such as those to recover cleanup costs under §107, are not 

challenges to cleanup plans.

Sections 113(b) and 113(h) thus each do work independent of one another. The two provisions overlap in a particular type of case: challenges to cleanup plans in federal 

court that arise under the Act. In such cases, the exceptions 

clause in §113(b) instructs that the limitation of §113(h)

prevails. It does nothing more. 

III 

Although the Montana Supreme Court answered the jurisdictional question correctly, the Court erred by holding

that the landowners were not potentially responsible parties under the Act and therefore did not need EPA approval 

to take remedial action. Section 122(e)(6), titled “Inconsistent response action,” provides that “[w]hen either the

President, or a potentially responsible party . . . has initiated a remedial investigation and feasibility study for a

particular facility under this chapter, no potentially responsible party may undertake any remedial action at the facility unless such remedial action has been authorized by the

President.” 42 U. S. C. §9622(e)(6). Both parties agree that 

—————— 6 JUSTICE ALITO argues that our interpretation leaves no meaning for 

the exceptions in §113(h) for federal courts hearing state law actions

while sitting in diversity and federal courts hearing actions invoking 

state law standards deemed “applicable or relevant and appropriate” by 

the Act. 42 U. S. C. §9613(h). Because we read §113(b) to cover only

federal law claims, JUSTICE ALITO assumes that these exceptions in 

§113(h) would never apply. But as we explained, §113(h) applies to all 

“challenges to removal or remedial action” that make their way into 

“[f]ederal court,” whether through §113(b) or some other route. §9613(h).

That includes state law challenges arising by way of diversity jurisdiction or supplemental jurisdiction as well as federal law challenges arising under sources of law other than the Act. The exceptions in §113(h)

are thus necessary to delineate which of these challenges may proceed in

federal court and which may not. 
 

14 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

this provision would require the landowners to obtain EPA 

approval for their restoration plan if the landowners qualify 

as potentially responsible parties.

To determine who is a potentially responsible party, we

look to the list of “covered persons” in §107, the liability section of the Act. §9607(a). “Section 107(a) lists four classes

of potentially responsible persons (PRPs) and provides that 

they ‘shall be liable’ for, among other things, ‘all costs of 

removal or remedial action incurred by the United States

Government.’” Cooper Industries, Inc. v. Aviall Services, 

Inc., 543 U. S. 157, 161 (2004) (quoting §9607(a)(4)(A)). The 

first category under §107(a) includes any “owner” of “a

facility.” §9607(a)(1). “Facility” is defined to include “any 

site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be

located.” §9601(9)(B). Arsenic and lead are hazardous substances. 40 CFR §302.4, Table 302.4. Because those pollutants have “come to be located” on the landowners’ properties, the landowners are potentially responsible parties.

The landowners and JUSTICE GORSUCH argue that even 

if the landowners were once potentially responsible parties, 

they are no longer because the Act’s six-year limitations period for recovery of remedial costs has run, and thus they 

could not be held liable in a hypothetical lawsuit. 42 

U. S. C. §9613(g)(2)(B).

This argument collapses status as a potentially responsible party with liability for the payment of response costs. A 

property owner can be a potentially responsible party even

if he is no longer subject to suit in court. As we have said, 

“[E]ven parties not responsible for contamination may fall 

within the broad definitions of PRPs in §§107(a)(1)–(4).” 

United States v. Atlantic Research Corp., 551 U. S. 128, 136 

(2007). That includes “‘innocent’ . . . landowner[s] whose

land has been contaminated by another,” who would be

shielded from liability by the Act’s so-called “innocent landowner” or “third party” defense in §107(b)(3). Ibid. See also 
 

Cite as: 590 U. S. ____ (2020) 15 

Opinion of the Court 

42 U. S. C. §9607(b)(3). The same principle holds true for

parties that face no liability because of the Act’s limitations

period.

Interpreting “potentially responsible parties” to include

owners of polluted property reflects the Act’s objective to

develop, as its name suggests, a “Comprehensive Environmental Response” to hazardous waste pollution. Section 

122(e)(6) is one of several tools in the Act that ensure the 

careful development of a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.

Yet under the landowners’ interpretation, property owners would be free to dig up arsenic-infected soil and build 

trenches to redirect lead-contaminated groundwater without even notifying EPA, so long as they have not been sued

within six years of commencement of the cleanup.7 We 

doubt Congress provided such a fragile remedy for such a 

serious problem. And we suspect most other landowners 

would not be too pleased if Congress required EPA to sue 

each and every one of them just to ensure an orderly 

cleanup of toxic waste in their neighborhood. A straightforward reading of the text avoids such anomalies. 

JUSTICE GORSUCH argues that equating “potentially responsible parties” with “covered persons” overlooks the fact 

—————— 7EPA does have other tools to address serious environmental harm. 

Under §106, for example, EPA can initiate an injunctive abatement action if it finds an “imminent and substantial endangerment to the public 

health or welfare or the environment.” 42 U. S. C. §9606(a). But EPA 

may have good reasons to preserve the status quo of a cleanup site even 

absent an imminent threat. More importantly, the landowners’ interpretation would require EPA to monitor tens of thousands of properties 

across 1,335 Superfund sites nationwide to ensure landowners do not 

derail an EPA cleanup. EPA, Superfund: National Priorities List (NPL) 

(Apr. 13, 2020), https://www.epa.gov/superfund/superfund-nationalpriorities-list-npl. Congress provided a far more effective and efficient

solution in §122(e)(6): Landowners at Superfund sites containing hazardous waste must seek EPA approval before initiating their own bespoke 

cleanups. 
 

 

16 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

that the terms “use different language, appear in different 

statutory sections, and address different matters.” Post, at 

7 (opinion concurring in part and dissenting in part). He 

contends that “potentially responsible party” as used in 

§122(e)(6) should be read as limited to the settlement context, and that if Congress intended the phrase to have 

broader reach—to refer more generally to those potentially

liable under §107(a)—then Congress would have used the

term “covered person.” Post, at 7–8. 

But there is no reason to think Congress used these 

phrases to refer to two distinct groups of persons. Neither 

phrase appears among the Act’s list of over 50 defined 

terms. 42 U. S. C. §9601. “Covered persons,” in fact, appears in the caption to §107(a) and nowhere else. Meanwhile, “potentially responsible parties” are referenced not 

just in the section on settlements, but also in the Act’s sections regarding EPA response authority, cleanup standards

and procedures, cleanup contractors, Superfund moneys,

Federal Government cleanup sites, and civil proceedings.

§§9604, 9605, 9611, 9613, 9619, 9620, 9622. Across the 

statute “potentially responsible parties” refers to what it

says: parties that may be held accountable for hazardous

waste in particular circumstances. The only place in the

Act that identifies such persons is the list of “Covered persons” in §107(a). Congress therefore must have intended 

“potentially responsible party” in §122(e)(6) (as elsewhere

in the Act) to refer to “Covered persons” in §107(a). 

Turning from text to consequences, the landowners warn

that our interpretation of §122(e)(6) creates a permanent 

easement on their land, forever requiring them “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.” Tr. of Oral Arg. 62. The grandchildren of Montana can rest easy: The Act does nothing of the sort.

Section 122(e)(6) refers only to “remedial action,” a defined term in the Act encompassing technical actions like 
 

 

Cite as: 590 U. S. ____ (2020) 17 

Opinion of the Court 

“storage, confinement, perimeter protection using dikes,

trenches, or ditches, clay cover, neutralization, cleanup of 

released hazardous substances and associated contaminated materials,” and so forth. 42 U. S. C. §9601(24).

While broad, the Act’s definition of remedial action does not 

reach so far as to cover planting a garden, installing a lawn 

sprinkler, or digging a sandbox. In addition, §122(e)(6) 

applies only to sites on the Superfund list. The Act requires EPA to annually review and reissue that list.

§9605(a)(8)(B). EPA delists Superfund sites once responsible parties have taken all appropriate remedial action and 

the pollutant no longer poses a significant threat to public 

health or the environment. See 40 CFR §300.425(e). 

The landowners and JUSTICE GORSUCH alternatively 

argue that the landowners are not potentially responsible 

parties because they did not receive the notice of settlement

negotiations required by §122(e)(1). Under a policy dating 

back to 1991, EPA does not seek to recover costs from residential landowners who are not responsible for contamination and do not interfere with the agency’s remedy. EPA, 

Policy Towards Owners of Residential Property at Superfund Sites, OSWER Directive #9834.6 (July 3, 1991),

https://www.epa.gov/sites/production/files/documents/policyowner-rpt.pdf. EPA views this policy as an exercise of its 

“enforcement discretion in pursuing potentially responsible 

parties.” Id., at 3. Because EPA has a policy of not suing 

innocent homeowners for pollution they did not cause, it did 

not include the landowners in settlement negotiations.

But EPA’s nonenforcement policy does not alter the landowners’ status as potentially responsible parties. Section 

107(a) unambiguously defines potentially responsible parties and EPA does not have authority to alter that definition. See, e.g., Sturgeon v. Frost, 587 U. S. ___, ___, n. 3 

(2019) (slip op., at 16, n. 3). Section 122(e)(1) requires 

notification of settlement negotiations to all potentially responsible parties. To say that provision determines who is 
 

 

18 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

a potentially responsible party in the first instance would

render the Act circular. Even the Government does not 

claim that its decisions whether to send notices of settlement negotiations carry such authority.

In short, even if EPA ran afoul of §122(e)(1) by not providing the landowners notice of settlement negotiations, that

does not change the landowners’ status as potentially

responsible parties.

The landowners relatedly argue that the limitation in

§122(e)(6) on remedial action by potentially responsible

parties cannot carry the weight we assign to it because it is 

located in the Act’s section on settlement negotiations. Congress, we are reminded, does not “hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 

U. S. 457, 468 (2001).

We take no issue with characterizing §122(e)(6) as an elephant. It is, after all, one of the Act’s crucial tools for ensuring an orderly cleanup of toxic waste. But §122 of the

Act is, at the risk of the tired metaphor spinning out of control, less a mousehole and more a watering hole—exactly

the sort of place we would expect to find this elephant. 

Settlements are the heart of the Superfund statute. 

EPA’s efforts to negotiate settlement agreements and issue 

orders for cleanups account for approximately 69% of all 

cleanup work currently underway. EPA, Superfund Site 

Cleanup Work Through Enforcement Agreements and 

Orders, https://www.epa.gov/enforcement/superfund-sitecleanup-work-through-enforcement-agreements-and-orders. 

The Act commands EPA to proceed by settlement “[w]henever practicable and in the public interest . . . in order to 

expedite effective remedial actions and minimize litigation.” 42 U. S. C. §9622(a). EPA, for its part, “prefers to

reach an agreement with a potentially responsible party

(PRP) to clean up a Superfund site instead of issuing an order or paying for it and recovering the cleanup costs later.” 

EPA, Negotiating Superfund Settlements, https://www.epa. 
 

 

 

 

Cite as: 590 U. S. ____ (2020) 19 

Opinion of the Court 

gov/enforcement/negotiating-superfund-settlements.

The Act encourages potentially responsible parties to enter into such agreements by authorizing EPA to include a 

“covenant not to sue,” which caps the parties’ liability to the 

Government. §9622(c)(1). The Act also protects settling 

parties from contribution claims by other potentially

responsible parties. §9613(f )(2). Once finalized, the terms 

of a settlement become legally binding administrative

orders, subject to civil penalties of up to $25,000 a day.

§§9609(a)(1)(E), 9622(l).

Moreover, subsection (e) is an important component of 

§122. It establishes a reticulated scheme of notices, proposals, and counterproposals for the settlement negotiation 

process. §9622(e). And the subsection places a moratorium

on EPA remedial actions while negotiations are under way.

§9622(e)(2)(A). It is far from surprising to find an analogous provision restricting potentially responsible parties 

from taking remedial actions in the same subsection. 

JUSTICE GORSUCH also contends that our interpretation

violates the Act’s “saving clauses,” which provide that the

Act does not preempt liability or requirements under state 

law. Post, at 3–4. But we have long rejected interpretations 

of sweeping saving clauses that prove “absolutely inconsistent with the provisions of the act” in which they are 

found. American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U. S. 214, 228 (1998) (quoting 

Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 

426, 446 (1907)). Interpreting the Act’s saving clauses to 

erase the clear mandate of §122(e)(6) would allow the Act 

“to destroy itself.” Ibid. 

What is more, Atlantic Richfield remains potentially liable under state law for compensatory damages, including 

loss of use and enjoyment of property, diminution of value, 

incidental and consequential damages, and annoyance and 

discomfort. The damages issue before the Court is whether 
 

20 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

Atlantic Richfield is also liable for the landowners’ own remediation beyond that required under the Act. Even then, 

the answer is yes—so long as the landowners first obtain

EPA approval for the remedial work they seek to carry out.

We likewise resist JUSTICE GORSUCH’s evocative claim 

that our reading of the Act endorses “paternalistic central

planning” and turns a cold shoulder to “state law efforts to 

restore state lands.” Post, at 10. Such a charge fails to appreciate that cleanup plans generally must comply with “legally applicable or relevant and appropriate” standards of 

state environmental law. 42 U. S. C. §9621(d)(2)(A)(ii). Or 

that States must be afforded opportunities for “substantial

and meaningful involvement” in initiating, developing, and

selecting cleanup plans. §9621(f )(1). Or that EPA usually

must defer initiating a cleanup at a contaminated site that

a State is already remediating. §9605(h). It is not “paternalistic central planning” but instead the “spirit of cooperative federalism [that] run[s] throughout CERCLA and its

regulations.” New Mexico v. General Elec. Corp., 467 F. 3d 

1223, 1244 (CA10 2006). 

As a last ditch effort, the landowners contend that, even 

if §107(a) defines potentially responsible parties, they qualify as contiguous property owners under §107(q), which

would pull them outside the scope of §107(a). The landowners are correct that contiguous property owners are not potentially responsible parties. Section 107(q)(1)(A) provides

that “[a] person that owns real property that is contiguous 

to or otherwise similarly situated with respect to, and that

is or may be contaminated by a release or threatened release of a hazardous substance from, real property that is 

not owned by that person shall not be considered” an owner 

of a facility under §107(a). §9607(q)(1)(A). The problem for

the landowners is that there are eight further requirements

to qualify as a contiguous property owner. §§9607(q)(1)(A)(i)– 

(viii). Each landowner individually must “establish by a 
 

Cite as: 590 U. S. ____ (2020) 21 

Opinion of the Court 

preponderance of the evidence” that he satisfies the criteria. §9607(q)(1)(B). 

The landowners cannot clear this high bar. One of the 

eight requirements is that, at the time the person acquired 

the property, the person “did not know or have reason to

know that the property was or could be contaminated by a

release or threatened release of one or more hazardous substances.” §9607(q)(1)(A)(viii)(II). All of the landowners 

here purchased their property after the Anaconda Company

built the Washington Monument sized smelter. Indeed “evidence of public knowledge” of contamination was “almost

overwhelming.” Christian v. Atlantic Richfield Co., 380 

Mont. 495, 529, 358 P. 3d 131, 155 (2015). In the early

1900s, the Anaconda Company actually obtained smoke

and tailing easements authorizing the disposition of 

smelter waste onto many properties now owned by the landowners. Id., at 500–501, 358 P. 3d, at 137–138. The landowners had reason to know their property “could be contaminated by a release or threatened release” of a hazardous

substance. 42 U. S. C. §9607(q)(1)(A)(viii)(II). 

At any rate, contiguous landowners must provide “full 

cooperation, assistance, and access” to EPA and those carrying out Superfund cleanups in order to maintain that status. §9607(q)(1)(A)(iv). But the Government has represented 

that the landowners’ restoration plan, if implemented,

would interfere with its cleanup by, for example, digging up 

contaminated soil that has been deliberately capped in 

place. See Brief for United States as Amicus Curiae 20–21. 

If that is true, the landowners’ plan would soon trigger a 

lack of cooperation between EPA and the landowners. At 

that point, the landowners would no longer qualify as contiguous landowners and we would be back to square one. 

* * * 

The Montana Supreme Court erred in holding that the

landowners were not potentially responsible parties under 
 

 

 

22 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of the Court 

§122(e)(6) and therefore did not need to seek EPA approval.

Montana law requires that “an award of restoration damages actually . . . be used to repair the damaged property.” 

Sunburst School Dist. No. 2, 338 Mont., at 273, 165 P. 3d, 

at 1089. But such action cannot be taken in the absence of 

EPA approval. That approval process, if pursued, could 

ameliorate any conflict between the landowners’ restoration plan and EPA’s Superfund cleanup, just as Congress 

envisioned. In the absence of EPA approval of the current 

restoration plan, we have no occasion to entertain Atlantic

Richfield’s claim that the Act otherwise preempts the plan.

The judgment of the Montana Supreme Court is affirmed 

in part and vacated in part. The case is remanded for further proceedings not inconsistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

Opinion of ALITO, J. 

SUPREME COURT OF THE UNITED STATES 

No. 17–1498 

ATLANTIC RICHFIELD COMPANY, PETITIONER v. 

GREGORY A. CHRISTIAN, ET AL. 

ON WRIT OF CERTIORARI TO THE SUPREME 

COURT OF MONTANA 

[April 20, 2020] 

JUSTICE ALITO, concurring in part and dissenting in part. 

I agree with the Court that the judgment below must be

reversed, and I join all of the Court’s opinion except Part

II–B. I thus agree with the Court that we possess jurisdiction to decide this case. See ante, at 8. I also agree that the 

landowners are potentially responsible parties under

§122(e)(6) of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA) and, as

a result, cannot bring their Montana restoration damages

claim without the consent of the Environmental Protection 

Agency (EPA). See ante, at 13–21. At this point, however,

I am not willing to endorse the Court’s holding in Part II–B 

that state courts have jurisdiction to entertain “challenges”

to EPA-approved CERCLA plans. 

I 

I would not decide that question because it is neither necessary nor prudent for us to do so. As I understand the 

Court’s opinion, the Montana Supreme Court has two options on remand: (1) enter a stay to allow the landowners to 

seek EPA approval or (2) enter judgment against the landowners on their restoration damages claim without prejudice to their ability to refile if they obtain EPA approval. 

Either way, the case cannot proceed without the EPA’s 
 

2 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of ALITO, J. 

blessing. And because the EPA has submitted multiple filings indicating that it believes that the landowners’ plan

presents serious environmental risks, it is likely that the 

EPA will not approve that plan, and the case will then die. 

If that happens, the question of the state courts’ jurisdiction

will be academic. 

Alternatively, if the EPA approves the landowners’ plan,

either in full or to a degree that they find satisfactory, they

may not wish to press this litigation. And if they do choose

to go forward, the question of state-court jurisdiction can be 

decided at that time. 

For these reasons, there is no need to reach out and decide the question now,1 and there are good reasons not to do 

so. While the question of state-court jurisdiction may turn

out not to matter in this case, that question may have important implications in other cases. Specifically, if the fears

expressed by the Government materialize, state courts and 

juries, eager to serve local interests, may disregard the

EPA’s expert judgment regarding the best plan for a

CERCLA site and may mandate relief that exacerbates environmental problems. See Brief for United States as Amicus Curiae 20–22, 29–30; App. to Pet. for Cert. 72a–74a. 

Thus, much is potentially at stake, and the question 

whether CERCLA allows state courts to entertain suits like 

the one in this case depends on the interpretation of devilishly difficult statutory provisions, CERCLA §§113(b) and 

(h), 42 U. S. C. §§9613(b) and (h). 

With much at stake, we should be confident that our answer is correct, and we have no basis for such confidence 

—————— 

1We may not decide the merits of a case without assuring ourselves 

that we have jurisdiction, Steel Co. v. Citizens for Better Environment, 

523 U. S. 83, 94–95 (1998), but nothing requires us to decide whether the 

Montana courts have jurisdiction before remanding, see S. Shapiro et al., 

Supreme Court Practice §3.26, p. 3–94 (11th ed. 2019); cf. Andresen v. 

Maryland, 427 U. S. 463, 469, n. 4 (1976) (declining to address question

presented “does not, of course, affect our jurisdiction”). 
 

 

Cite as: 590 U. S. ____ (2020) 3 

Opinion of ALITO, J. 

here. The question of state-court jurisdiction is only one of

many in this case, and the briefing and argument on that 

issue left important questions without fully satisfactory answers. The Court tries to clear up what §113 means, but as

I will attempt to show, the Court’s interpretation presents 

serious problems. Under these circumstances, the better 

course is not to decide this perplexing question at this 

juncture. 

II 

A 

CERCLA §113 is like a puzzle with pieces that are exceedingly difficult, if not impossible, to fit together. Here is 

what these provisions say, with language that is not pertinent for present purposes omitted: 

“(b) Jurisdiction; venue

“Except as provided in subsectio[n] . . . (h) of this section [and another provision not relevant for present 

purposes], the United States district courts shall have 

exclusive original jurisdiction over all controversies

arising under this chapter, without regard to the citizenship of the parties or the amount in controversy. . . . 

. . . . .

 “(h) Timing of review

“No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under 

State law which is applicable or relevant and appropriate under section 9621 of this title [CERCLA §121, 42

U. S. C. §9621] (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any

order issued under section 9606(a) of this title [concerning emergency measures ordered by the President], in 
 

 

4 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of ALITO, J. 

any action except one of [a list of specific CERCLA provisions].” 42 U. S. C. §9613. 

For present purposes, the pertinent parts are as follows: 

 First, §113(b) sets out a general rule conferring on the 

federal district courts exclusive jurisdiction over claims

“arising under” CERCLA. And it does so “without regard to the citizenship of the parties or the amount in 

controversy.” 

 Second, §§113(b) and (h), taken together, reduce this

grant of jurisdiction by taking away jurisdiction over 

most claims that “challeng[e]” a “removal or remedial 

action.” 

 Third, this reduction does not apply to a challenge to 

removal or remedial action if it is brought under the

diversity jurisdiction statute, 28 U. S. C. §1332. 

 Fourth, this reduction also does not apply to a challenge to removal or remedial action if it is brought in

federal court “under State law which is applicable or 

relevant and appropriate under [§121] (relating to

cleanup standards).” Under §121, cleanup standards

must comply with certain state-law requirements, and 

thus the thrust of this last provision seems to be that a 

removal or remedial action may be challenged in federal court for noncompliance with such requirements. 

With these pieces laid out, we may consider how the Court 

and respondents, on the one hand, and the Government and 

petitioner, on the other, try to fit them together. 

B 

The logical first step in any effort to understand how 

§§113(b) and (h) apply to the landowners’ state-law restoration damages claim is to determine whether the claim falls 

within the scope of the exclusive jurisdiction that §113(b) 

confers on the federal district courts—in other words, 

whether such a claim is one that “aris[es] under” CERCLA. 
Cite as: 590 U. S. ____ (2020) 5 

Opinion of ALITO, J. 

If it does not, then that ends the inquiry. And that is what 

the Court holds. Ante, at 8–9. 

The Court interprets the phrase “arising under” in 

§113(b) to mean the same thing as that phrase means in the 

federal-question jurisdiction statute, 28 U. S. C. §1331. 

Under that provision, as the Court puts it, “[i]n the mine 

run of cases, ‘[a] suit arises under the law that creates the 

cause of action.’” Ante, at 9 (quoting American Well Works 

Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916)). Thus, 

the Court concludes, a claim arises under CERCLA only if 

it is based on CERCLA, and since the landowners’ restoration damages claim is based on Montana law, it is obviously 

not based on CERCLA and does not fall within the exclusive 

jurisdiction conferred on the district courts by §113(b). This 

makes short work of the question of state-court jurisdiction, 

but it presents serious problems.

First, it cannot explain why §113(b) says that the jurisdiction it confers is “without regard to the citizenship of the

parties or the amount in controversy.” If that jurisdiction

is limited to claims that are based on CERCLA, district 

courts have jurisdiction to entertain all those claims under

28 U. S. C. §1331, which does not require either diversity or

any minimum amount in controversy. So why go out of the 

way to say that §113(b) jurisdiction does not require diversity or any minimum amount in controversy? The only logical reason is to ensure that the provision covers suits that 

could not be brought under 28 U. S. C. §1331. Thus, §113(b) 

jurisdiction must be broader than general federal-question

jurisdiction. By denying this, the Court’s interpretation

turns the phrase “without regard to the citizenship of the 

parties or the amount in controversy” into a meaningless 

and useless appendage. 

Second, under the Court’s interpretation, there is no reason why §113(h) should specify that its reduction of the

scope of the jurisdiction conferred by §113(b) does not affect 
6 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

 

Opinion of ALITO, J. 

a district court’s jurisdiction in diversity cases. If the jurisdiction granted by §113(b) is limited to claims based on 

CERCLA, why would anyone think that it had any impact 

on state-law claims?2

 Third, if the jurisdiction conferred by §113(b) is limited to 

claims based on CERCLA, it is unclear how a district court 

could entertain a claim “under State law which is applicable 

or relevant and appropriate under [§121] (relating to 

cleanup standards).” Yet §113(h) exempts such a claim 

from its general withdrawal of jurisdiction over challenges 

to removal or remedial action. It seems clear that Congress 

did not regard these claims as claims under CERCLA itself, 

since it describes them as “under State law” and did not include them on the list of claims under CERCLA that it likewise exempted from §113(h)’s general withdrawal of jurisdiction over challenges to removal or remedial action. 

§§113(h)(1)–(5). These three problems raise serious doubt 

about the correctness of the Court’s interpretation.3

—————— 2The Court answers that §§113(b) and (h), though partially overlapping, are “independent” of each other. Ante, at 13, and n. 6. But this 

conclusion rests on an uneasy premise: that §113(b) pertains only to 

causes of action based on CERCLA. There is reason to doubt that this is 

the best reading of the statute. See supra, at 4–5 and this page. 3The Court chalks up §113(b)’s references to amount in controversy 

and party citizenship to a “belt and suspenders” approach. Ante, at 10, 

n. 5. As the Court sees it, Congress must have wanted to make especially 

clear that “all CERCLA lawsuits,” no matter the amount in dispute or 

the citizenship of the parties, would be welcome in (and limited to) those 

courts. Ibid.

 It is true that “instances of surplusage are not unknown” in federal 

statutes. Arlington Central School Dist. Bd. of Ed. v. Murphy, 548 U. S. 

291, 299, n. 1 (2006). But it is also the case that the Court usually seeks 

to “avoid a reading which renders some words altogether redundant.” 

Gustafson v. Alloyd Co., 513 U. S. 561, 574 (1995). In interpreting §113, 

one way to avoid redundancy is to acknowledge the interlocking relationship between §§113(b) and (h). Section 113(b) refers to the hallmarks of 

diversity jurisdiction (amount in controversy and diversity), and §113(h) 

makes clear that its clawback of jurisdiction over some “challenges” to 

EPA plans does not affect state-law claims that satisfy 28 U. S. C. §1332. 
Cite as: 590 U. S. ____ (2020) 7 

Opinion of ALITO, J. 

C 

The Government and petitioner advance a different interpretation of §§113(b) and (h), and although this interpretation solves the problems noted above, it has problems of

its own. The Court, as noted, runs into trouble by interpreting the phrase “arising under” CERCLA in §113(b) to mean

what “arising under” means in 28 U. S. C. §1331. The Government obviates this difficulty by arguing that “arising under” in §113(b) has a broader meaning, such as the meaning

of the same phrase in Article III of the Constitution. See 

Brief for United States as Amicus Curiae 23–24. The Government suggests that “arising under” in §113(b) may reach

“‘any case or controversy that might call for the application 

of federal law.’” Id., at 24 (quoting Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 492 (1983)). If §113(b) 

uses the phrase in something like this sense, the jurisdiction it confers can reach some claims under state law, and 

that would explain §113(b)’s specification that this jurisdiction is not dependent on either diversity or amount in controversy. In other words, this language makes clear that

federal district courts have jurisdiction to hear these statelaw claims without the restrictions that usually apply when

federal courts entertain such claims. 

Up to this point, the interpretation favored by the Government and petitioner proceeds smoothly, but it stumbles

when it moves from §113(b) to §113(h). That provision reduces the grant of jurisdiction in §113(b) by taking away

jurisdiction over challenges to removal and remedial action

unless, among other things, those claims are brought in a 

diversity action. The upshot is that federal district courts

are left with jurisdiction over most state-law claims that 

challenge removal and remedial action only where the parties are diverse.4 If it turns out that diversity is lacking, 

—————— 

4They also retain jurisdiction over claims “under State law which is 

applicable or relevant and appropriate under [§121] (relating to cleanup 
 

8 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of ALITO, J. 

the district courts cannot entertain the same claims. And 

not only that. Because §113(b)’s grant of jurisdiction to the

federal district courts is exclusive, the state courts cannot 

entertain those claims either. 

It is hard to fathom why Congress might have wanted 

such a scheme. Congress might have wanted all the statelaw claims covered by §113(b) to be heard exclusively in federal court in order to prevent state courts and juries from

unduly favoring home-state interests. But having granted

the federal district courts jurisdiction to hear these claims

in §113(b), why would Congress take away that jurisdiction

in cases where the parties happen not to be diverse? And 

why would Congress go further and prevent the state courts

from hearing these claims? The Government and petitioner

provide no answer, and none is apparent. 

III 

The Court gives three reasons for resolving the question 

of state-court jurisdiction. See ante, at 9, n. 3. None is 

compelling.

First, the Court explains that “Atlantic Richfield seeks

more than a remand,” namely, it seeks a remand with instructions to dismiss on jurisdictional grounds. Ibid. But 

Atlantic Richfield presented its §122(e)(6) theory as an alternate ground for reversal, and has prevailed on that basis. As Atlantic Richfield’s counsel stated at argument, the

§122(e)(6) ruling is “sufficient to resolve the case.” Tr. of 

Oral Arg. 17–18. 

Second, the Court says, “leaving the [§113] question unanswered . . . would leave the parties in a state of uncertainty.” Ante, at 9, n. 3. But, as described above, there appears to be a slim chance that this case will, at least in its 

current state, “procee[d]” in the Montana courts. Ibid. 

—————— 

standards).” §113(h). 
Cite as: 590 U. S. ____ (2020) 9 

Opinion of ALITO, J. 

Third, the Court suggests that the grant of review, briefing, and argument on §113 may warrant resolving the question of state-court jurisdiction. Ibid. But that presentation 

has not cleared up serious issues surrounding §§113(b) and

(h). And sunk costs cannot justify a departure from our

usual practice of “deciding only what is necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co., 349 U. S. 366, 373 (1955). 

* * * 

Section 113 may simply be a piece of very bad draftsmanship, with pieces that cannot be made to fit together. Or it 

may be a puzzle with a solution that neither the parties, the

Court, nor I have been able to solve. In a later case, briefing

and argument may provide answers that have thus far

eluded us. Since we are not required to attempt an answer 

in this case, the prudent course is to hold back. 
 

 

 

_________________ 

_________________ 

Cite as: 590 U. S. ____ (2020) 1 

Opinion of GORSUCH, J. 

SUPREME COURT OF THE UNITED STATES 

No. 17–1498 

ATLANTIC RICHFIELD COMPANY, PETITIONER v. 

GREGORY A. CHRISTIAN, ET AL. 

ON WRIT OF CERTIORARI TO THE SUPREME 

COURT OF MONTANA 

[April 20, 2020] 

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,

concurring in part and dissenting in part. 

For nearly a century, Atlantic Richfield’s predecessor operated a smelter near the town of Opportunity, Montana.

At one time, the smelter produced much of the Nation’s copper supply and served as the State’s largest employer. App.

311. Eventually, though, it became apparent the smelter 

was producing more than just copper and jobs. Studies 

showed that the plant emitted up to 62 tons of arsenic and 

10 tons of lead each day. Brief for Respondents 7. Thanks 

to what was once the world’s tallest brick smokestack, these 

heavy metals blanketed the town and the whole of the Deer 

Lodge Valley—contaminating hundreds of square miles. 

Today, the smokestack is all that is left of the once massive 

operation. It stands alone in a state park, much of which

remains dangerously contaminated and closed to the public. Visitors may view the stack, but only from a distance, 

through fences and between huge slag piles. Id., at 9. 

This case involves nearly 100 nearby residents. Some 

have lived in their homes for decades, some long before the 

environmental consequences of the smelter were fully appreciated. They say they have thought about moving, but 

for many their property values aren’t what they once were.

Besides, as one homeowner put it, “I couldn’t find a kitchen

door that’s got all my kids’ heights on it.” Id., at 8. 
 

 

 

2 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of GORSUCH, J. 

The federal government has tried to help in its own way.

In 1983, the government designated the 300-square-mile

area surrounding the smelter a Superfund site under the

Comprehensive Environmental Response, Compensation, 

and Liability Act of 1980 (CERCLA), 94 Stat. 2767, as

amended, 42 U. S. C. §9601 et seq. After years of study and 

negotiation, the government ordered Atlantic Richfield to 

remove up to 18 inches of soil in residential yards with arsenic levels exceeding 250 parts per million (ppm). App.

94–95. For so-called “pasture land”—that is, nearly everything else—the government set the threshold for soil removal at 1,000 ppm. Brief for Respondents 8. By way of

reference, even 100 ppm is sometimes considered too toxic

for local landfills, and the federal government itself has 

elsewhere set a threshold of 25 ppm. Ibid. Some States set 

residential cleanup levels as low as 0.04 ppm. Ibid. 

The cleanup work that followed left much to be desired. 

By 2016, Atlantic Richfield claimed that it had virtually finished work on the landowners’ properties. Yet, only 24 of 

their 77 properties had been remediated, and only about 5

percent of the total acreage had been touched. Id., at 9. Soil 

near Tammy Peters’s daycare playground, for example, still 

shows an arsenic level of 292 ppm. But because the 

“weighted average” for her yard is below 250 ppm, Atlantic

Richfield performed no cleanup of the playground at all. 

Id., at 10. 

So the landowners here proceeded as landowners historically have: They sought remedies for the pollution on their

lands in state court under state law. 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. Nor does the federal government always intervene as fully as it might even when it can.

Meanwhile, the regulation of real property and the protec-
Cite as: 590 U. S. ____ (2020) 3 

Opinion of GORSUCH, J. 

tion of natural resources is a traditional and central responsibility of state governments. And States have long allowed 

landowners to seek redress for the pollution of their lands

through ancient common law causes of action like nuisance

and trespass. The landowners employed exactly these theories when they brought suit in state court seeking restoration damages from Atlantic Richfield—money that could be

used only to remove arsenic, lead, and other toxins from 

their properties. The Montana Supreme Court has held 

that the landowners’ case states a viable claim for relief and 

warrants trial. 

Now, however, Atlantic Richfield wants us to call a halt 

to the proceedings. The company insists that CERCLA

preempts and prohibits common law tort suits like this one. 

On Atlantic Richfield’s telling, CERCLA even prevents private landowners from voluntarily remediating their own

properties at their own expense. No one may do anything 

in 300 square miles of Montana, the company insists, without first securing the federal government’s permission. 

But what in the law commands that result? Everything

in CERCLA suggests that it seeks to supplement, not supplant, traditional state law remedies and promote, not prohibit, efforts to restore contaminated land. Congress hardly

could have been clearer. It stated that, “[n]othing in this 

[Act] shall be construed or interpreted as preempting any 

State from imposing any additional liability or requirements with respect to the release of hazardous substances

within such State.” 42 U. S. C. §9614(a). It added that 

“[n]othing in this [Act] shall affect or modify in any way the

obligations or liabilities of any person under other Federal

or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.” §9652(d). And it said again that “[t]his [Act]

does not affect or otherwise impair the rights of any person 

under Federal, State, or common law, except with respect

to the timing of review as provided” elsewhere in provisions 
 

4 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of GORSUCH, J. 

that even the Court today does not invoke as limits on recovery here. §9659(h). Three times Congress made its 

point as plainly as anyone might.

So how does Atlantic Richfield seek to transform 

CERCLA from a tool to aid cleanups into a ban on them? 

The company has to point to something in the statutory text 

that trumps these many provisions and preempts the landowners’ right to use state law to restore their lands. After 

all, merely “[i]nvoking some brooding federal interest or appealing to a judicial policy preference should never be 

enough to win preemption of a state law”; instead, a party

like Atlantic Richfield seeking to displace state law must

identify “‘a constitutional text or a federal statute’ that does

the displacing.” Virginia Uranium, Inc. v. Warren, 587 

U. S. ___, ___ (2019) (opinion of GORSUCH, J.) (slip op., at 3)

(quoting Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988)). 

In answer, Atlantic Richfield directs our attention to 

§122(e)(6). It’s a provision buried in a section captioned 

“Settlements.” The section outlines the process private parties must follow to negotiate a settlement and release of 

CERCLA liability with the federal government. Subsection 

(e)(6) bears the title “Inconsistent response action” and

states that, “[w]hen either the President, or a potentially 

responsible party pursuant to an administrative order or 

consent decree under this chapter, has initiated a remedial 

investigation and feasibility study for a particular facility 

under this chapter, no potentially responsible party may

undertake any remedial action at the facility unless such

remedial action has been authorized by the President.” 42 

U. S. C. §9622(e)(6). So even read for all its worth, this provision only bars those “potentially responsible” to the federal government from initiating cleanup efforts without 

prior approval. To get where it needs to go, Atlantic Richfield must find some way to label the innocent landowners

here “potentially responsible part[ies]” on the hook for 
 

 

Cite as: 590 U. S. ____ (2020) 5 

Opinion of GORSUCH, J. 

cleanup duties with the federal government.

They are hardly that. When interpreting a statute, this 

Court applies the law’s ordinary public meaning at the time 

of the statute’s adoption, here 1980. See Wisconsin Central 

Ltd. v. United States, 585 U. S. ___, ___ (2018) (slip op., at 

9). To be “potentially responsible” for something meant

then, as it does today, that a person could possibly be held 

accountable for it; the outcome is capable of happening.

American Heritage Dictionary 1025 (1981); Webster’s New 

Collegiate Dictionary 893 (1980). And there is simply no 

way the landowners here are potentially, possibly, or capable of being held liable by the federal government for anything. In the first place, the federal government never notified the landowners that they might be responsible

parties, as it must under §122(e)(1). Additionally, everyone

admits that the period allowed for bringing a CERLCA 

claim against them has long since passed under 

§113(g)(2)(B). On any reasonable account, the landowners

are potentially responsible to the government for exactly

nothing.

Statutory context is of a piece with the narrow text. 

Nothing in §122 affects the rights of strangers to the federal 

government’s settlement process. Everything in the section

speaks to the details of that process. The section requires 

the government to provide all potentially responsible parties with notice that they might be held responsible for remedial measures. §9622(e)(1). It instructs the government 

to give a potentially responsible party a list of everyone else 

so designated. Ibid. It specifies procedures for sharing 

proposals and counterproposals among this group.

§§9622(e)(2)–(3). It allows the government to release from

federal liability those who agree to settle and clean up hazardous sites. See §§9622(a)–(c). And because parties who

settle with the federal government may seek cleanup costs

they incurred prior to settlement from other potentially re-
 

 

6 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of GORSUCH, J. 

sponsible parties, subsection (e)(6) bars a potentially responsible party from taking unauthorized remedial 

measures. See §§922(e)(1)–(3), (h). This ensures the government can control the shape of any final settlement and 

no private party can unilaterally incur costs that it might 

then foist on others. At the end of it all, the section does 

just what its title suggests. It governs the settlement process among those who have something to settle. It says

nothing about the rights and duties of individuals who, like 

the landowners here, have nothing to settle because they 

face no potential liability.

Then there’s what the rest of the statute tells us. As 

we’ve seen, CERCLA says again and again that it does not 

impair the rights of individuals under state law. That instruction makes perfect sense and does plenty of work if 

§122 only requires those potentially liable to the federal 

government to secure permission before engaging in 

cleanup efforts. By contrast, reading §122 to bar nearly 

everyone from undertaking remedial efforts without federal 

permission renders CERCLA’s many and emphatic promises about protecting existing state law rights practically

dead letters. Sure, the federal government would still have 

to “involv[e]” state officials and comply with state laws—or

at least those laws federal agency employees deem “relevant and appropriate.” §§9621(f )(1), (d)(2)(A)(ii). But 

CERCLA would promise nothing more than observer status

for state law and those who wish to rely on it. States and 

private landowners alike who lack any potential federal liability could be barred even from undertaking remedial efforts on their own lands at their own expense, required instead to host toxic wastes involuntarily and indefinitely.

Rather than supplementing state remedial efforts, 

CERCLA would rule them all. 

Reading CERCLA this way would raise uneasy constitutional questions too. If CERCLA really did allow the federal

government to order innocent landowners to house another 
Cite as: 590 U. S. ____ (2020) 7 

Opinion of GORSUCH, J. 

party’s pollutants involuntarily, it would invite weighty 

takings arguments under the Fifth Amendment. See 

Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 

419, 421 (1982). And if the statute really did grant the federal government the power to regulate virtually each shovelful of dirt homeowners may dig on their own properties, it 

would sorely test the reaches of Congress’s power under the

Commerce Clause. See National Federation of Independent 

Business v. Sebelius, 567 U. S. 519, 551–553 (2012). 

Atlantic Richfield’s replies do nothing to address these 

problems. Instead of making some helpful textual or contextual rejoinder about §122, the company asks us look 

somewhere else entirely. Now, Atlantic Richfield says, we 

should direct our attention to §107, a provision that lists

four classes of “[c]overed persons” the federal government 

is authorized to sue under CERCLA. One of these classes 

encompasses any person who owns a “facility” where hazardous waste has “come to be located.” §§9607, 9601(9). Because the landowners’ properties qualify as “facilit[ies]”

where Atlantic Richfield’s waste has come to be located, 

everyone admits the landowners themselves are “[c]overed 

persons.” And, according to Atlantic Richfield, this necessarily means they are also “potentially responsible 

part[ies]” subject to §122(e)(6)’s requirement that they seek 

federal permission before proceeding with any cleanup. 

But notice the linguistic contortion and logical leap. Linguistically, §107 identifies the “[c]overed persons” the government is authorized to sue. Section 122 requires a “potentially responsible party” seeking settlement with and

discharge of liability from the federal government to obtain 

its permission before engaging in a cleanup. The terms use 

different language, appear in different statutory sections, 

and address different matters. Nor are these two sections 

the only ones like them. CERCLA differentiates between 

covered persons and potentially responsible parties in

many places: Some sections apply to all persons covered by 
 

 

 

 

 

8 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of GORSUCH, J. 

§107 (see, e.g., 42 U. S. C. §§9619(d), 9624(b)), while others

extend their mandates only to potentially responsible parties (see, e.g., §§9604, 9605, 9611). Logically, too, the concepts are distinct. Yes, a potentially responsible party must

be a covered person the government is authorized to sue.

But the inverse does not follow. It is possible to be a person

the government is authorized to sue without also being a 

person the government has chosen to single out for potential responsibility. Atlantic Richfield’s argument, thus, essentially proceeds like this: Disregard the differences in

language; then assume Congress chose its terms randomly 

throughout the law; and, finally, conflate logically distinct 

concepts.

Our case illustrates the significance of the distinction 

Congress drew and Atlantic Richfield would have us ignore.

Maybe the federal government was once authorized by §107

to include the innocent landowners here in a CERCLA suit. 

But few statutes pursue their purpose single-mindedly or

require their full enforcement. And as we’ve seen, at least 

two things happened that preclude these landowners from 

being held responsible for anything: The government chose

not to notify them of potential liability under §122(e)(3), 

and it declined to bring suit within the period prescribed by

§113(g)(2)(B). Under the plain and ordinary meaning of the

statutory terms before us, these landowners are not potentially responsible parties and CERCLA doesn’t require

them to seek permission from federal officials before cleaning their own lands. If Congress had wished to extend its

ask-before-cleaning rule to every covered person—including those the government chooses not to pursue for potential liability—all it had to do was say so. Congress displayed no trouble using the term “[c]overed persons”

elsewhere in the statute. See, e.g., §§9619(d), 9624(b)(2).

Conspicuously, it made a different choice here. 

Without any plausible foundation in the statute to sup-
 

Cite as: 590 U. S. ____ (2020) 9 

Opinion of GORSUCH, J. 

port its position, Atlantic Richfield resorts to this odd argument. Maybe the terms “[c]overed persons” and “potentially responsible party” are different and the statute uses

them in different places to do different things. But, the 

company insists, we must conflate them now because this 

Court has conflated them before. In particular, Atlantic

Richfield points to language in United States v. Atlantic Research Corp., 551 U. S. 128 (2007), where the Court spoke 

of “Section 107(a) [as] defin[ing] four categories of PRPs [potentially responsible parties].” Id., at 131–132. 

That may be so but it does not make it so. The relationship between the terms “[c]overed persons” under §107 and 

“potentially responsible part[ies]” under §122 is of critical

importance in this case, but it was not briefed, argued, or

decided in Atlantic Research. Instead, the only question

there concerned the meaning of the term “[c]overed persons” under §107. Though the Court employed the term 

“PRP” to describe “[c]overed persons,” nothing turned on

the use or meaning of the acronym: Replace every reference

to “PRP” with “[c]overed person” and the Court’s holding

and reasoning remains the same. This Court has long

warned that matters “‘lurk[ing] in the record, neither 

brought to the attention of the court nor ruled upon,’” 

should not be read as having decided anything. Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 170 

(2004) (quoting Webster v. Fall, 266 U. S. 507, 511 (1925)).

We have warned, too, against reading our judicial opinions 

as if they were some sort of legislative code because, otherwise, innocent and inconsequential judicial remarks might 

mistakenly come to trump democratically adopted laws. 

See Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). Atlantic Richfield would have us ignore these teachings and 

confuse a stray remark with a rule of law. 

In the end, the company’s case cannot help but be seen 

for what it really is: an appeal to policy. On its view, things

would be so much more orderly if the federal government 
 

 

 

 

10 ATLANTIC RICHFIELD CO. v. CHRISTIAN 

Opinion of GORSUCH, J. 

ran everything. And, let’s be honest, the implication here 

is that property owners cannot be trusted to clean up their 

lands without causing trouble (especially for Atlantic Richfield). Nor, we are told, should Montanans worry so much:

The restrictions Atlantic Richfield proposes aren’t really 

that draconian because homeowners would still be free to 

do things like build sandboxes for their grandchildren (provided, of course, they don’t scoop out too much arsenic in

the process).

But, as in so many cases that come before this Court, the 

policy arguments here cut both ways. Maybe paternalistic

central planning cannot tolerate parallel state law efforts 

to restore state lands. But maybe, too, good government 

and environmental protection would be better served if 

state law remedies proceeded alongside federal efforts. 

State and federal law enforcement usually work in just this

way, complementing rather than displacing one another.

And, anyway, how long would Atlantic Richfield have us enforce what amounts to a federal easement requiring landowners to house toxic waste on their lands? The government has been on site since 1983; work supposedly finished 

around the landowners’ homes in 2016; the completion of 

“primary” cleanup efforts is “estimated” to happen by 2025.

So, yes, once a Superfund site is “delisted,” the restrictions

on potentially responsible parties fade away. But this project is well on its way to the half-century mark and still only 

a “preliminary” deadline lies on the horizon. No one before 

us will even hazard a guess when the work will finish and 

a “delisting” might come. On Atlantic Richfield’s view, generations have come and gone and more may follow before

the plaintiffs can clean their land.

The real problem, of course, is that Congress, not this

Court, is supposed to make judgments between competing 

policy arguments like these. And, as we’ve seen, Congress 

has offered its judgment repeatedly and clearly. CERCLA 
Cite as: 590 U. S. ____ (2020) 11 

Opinion of GORSUCH, J. 

sought to add to, not detract from, state law remedial efforts. It endorsed a federalized, not a centralized, approach

to environmental protection. What if private or state

cleanup efforts really do somehow interfere with federal interests? Congress didn’t neglect the possibility. But instead of requiring state officials and local landowners to beg 

Washington for permission, Congress authorized the federal government to seek injunctive relief in court. See 

§9606(a). Atlantic Richfield would have us turn this system

upside down, recasting the statute’s presumption in favor

of cooperative federalism into a presumption of federal 

absolutism. 

While I agree with the Court’s assessment in Parts I and

II of its opinion that we have jurisdiction to hear this case, 

I cannot agree with its ruling on the merits in Part III. Departing from CERCLA’s terms in this way transforms it

from a law that supplements state environmental restoration efforts into one that prohibits them. Along the way, it

strips away ancient common law rights from innocent landowners and forces them to suffer toxic waste in their backyards, playgrounds, and farms. Respectfully, that is not 

what the law was written to do; that is what it was written 

to prevent.