The U.S. Supreme Court has issued a wide-ranging decision regarding the rights of homeowners affected by Superfund response actions, ruling that they are bound by CERCLA’s ban on additional remedial actions beyond those authorized by the EPA. The case, Atlantic Research Company v. Christian et al., 590 U.S. ___ (April 20, 2020), concerned historical releases from the former Anaconda smelter site in Butte, Montana, which had impacted surface soils at nearby residences. Unhappy with the response action selected by the EPA — which allowed soil impacted below risk-based goals to be left in place and capped — the homeowners filed suit in state court under a variety of common law theories. The Supreme Court’s decision includes significant limitations on the ability of homeowners to force additional cleanup actions without agency approval, and reduces the toxic tort risk faced by clients working to remediate Superfund sites with residential impacts. Our full update on the case and its implications, by Christopher D. Thomas, P. Derek Petersen and Katherine E. May, is available here.
On March 31, six Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—jointly issued new shelter-in-place restrictions that expand, clarify, and extend certain restrictions until May 3, 2020. Previous county orders issued on March 16 allowed almost all Bay Area housing construction to continue, as well as certain other construction projects (as did Governor Gavin Newsom’s March 19 safer-at-home order, which applies statewide). The new orders, however, allow only construction for essential infrastructure, healthcare projects directly related to addressing the COVID-19 pandemic, housing and mixed-use projects that include at least 10% income-restricted affordable housing, projects required to maintain safety, sanitation, and habitability of residences and commercial buildings, and construction necessary to secure an existing construction site that must shut down. Our complete report on the new orders, by Cecily T. Barclay, Marie A. Cooper and Auria Maleksalehi is available here.