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Conservative Justices Clash Over EPA

April 30, 2020

Back view of a young judge

The recently decided U.S. Supreme Court case that questioned whether property owners in the toxically polluted towns of Opportunity and Crackerville, Montana, could sue the EPA and Atlantic Richfield Company (ARCO), exposed a rift between conservative Chief Justice John Roberts and his ultra-conservative colleague, Neil Gorsuch. The issue they differed upon was “paternalistic central planning.” That’s the formulation Gorsuch employed in his dissent, in which he practically called his fellow justices in the majority communists. The court had to decide whether property owners with land on a federal Superfund site that ARCO’s Anaconda Smelter had poisoned could sue the company in state court for additional remediation of the site. The justices all agreed that the property owners could sue, but differed on the extent to which the EPA had to be involved if they won. The majority ruled that the 98 individuals would have to run any plans for additional remediation of the toxic property past the federal agency. Gorsuch’s dissent drew Roberts’ ire. “We…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,’” he wrote.

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