Atlantic Richfield Co. v. Christian

(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 Lia-
bility Act, 42 U. S. C. §9601 et seq., also known as the Superfund stat-
ute, promotes “the timely cleanup of hazardous waste sites and [en-
sures] 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 En-
vironmental Protection Agency to compile and annually revise a prior-
itized 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 collat-
eral 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 chal-
lenges to removal or remedial action,” except in five limited circum-
stances.
For nearly a century, the Anaconda Copper Smelter in Butte, Mon-
tana 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 prop-
erty rehabilitation. The landowners’ proposed plan exceeds the
2 ATLANTIC RICHFIELD CO. v. CHRISTIAN

Syllabus

measures found necessary to protect human health and the environ-
ment by EPA. The trial court granted summary judgment to the land-
owners 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, re-
jecting 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) pro-
hibited 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 un-
der 28 U. S. C. §1257(a), a state court judgment must be “an effective
determination of the litigation and not of merely interlocutory or in-
termediate steps therein.” Jefferson v. City of Tarrant, 522 U. S. 75,
81. Under Montana law, a supervisory writ proceeding is a self-con-
tained 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 contro-
versies arising under this chapter,” so state courts lack jurisdiction
over such actions. The use of “arising under” in §113(b) echoes Con-
gress’s more familiar use of that phrase in granting federal courts ju-
risdiction 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 Rich-
field’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 ac-
tions—just as it says. Pp. 8–13.
3. The Montana Supreme Court erred by holding that the landown-
ers 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 po-
tentially responsible parties.
The landowners argue they are no longer potentially responsible
parties because the Act’s six-year limitations period for recovery of re-
medial costs has run, and thus they could not be held liable in a hypo-
thetical lawsuit. But even “ ‘innocent’ . . . landowner[s] whose land has
been contaminated by another,” and who are thus shielded from liabil-
ity by §107(b)(3)’s so-called “innocent landowner” or “third party” de-
fense, “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 “Comprehen-
sive Environmental Response” to hazardous waste pollution. Section
122(e)(6) is one of several tools in the Act that ensure the careful de-
velopment of a single EPA-led cleanup effort rather than tens of thou-
sands 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. Congress did not provide such a fragile remedy for such a
serious problem.
The landowners alternatively argue that they are not potentially re-
sponsible parties because they did not receive the notice of settlement
negotiations required by §122(e)(1). EPA has a policy of not suing in-
nocent homeowners for pollution they did not cause, so it did not in-
clude the landowners in settlement negotiations. But EPA’s nonen-
forcement 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 def-
inition.
The landowners also argue that §122(e)(6) cannot carry the weight
ascribed to it because it is located in the section on settlement negoti-
ations. 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 expe-
dite effective remedial actions and minimize litigation.” And EPA’s
efforts to negotiate settlement agreements and issue orders for clean-
ups account for approximately 69% of all cleanup work currently un-
derway. Pp. 13–21.
390 Mont. 76, 408 P. 3d 515, affirmed in part, vacated in part, and re-
manded.

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, GINS-
BURG, 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, Wash-
ington, 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 En-
vironmental 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 land-
owners’ proposed restoration plan includes measures be-
yond 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 land-
owners to seek EPA approval for their restoration plan.
I
A
In 1980, Congress enacted the Comprehensive Environ-
mental 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 environmen-
tal and health risks posed by industrial pollution,” Burling-
ton 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 pri-
oritized 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 per-
form the cleanup. §§9604, 9606, 9615. If the Government
performs the cleanup, it may recover its costs from respon-
sible 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-

——————
1 The 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 ac-
tion” 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 mean-
ingful involvement by each State in initiation, develop-
ment, 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 contro-
versies 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 “Rich-
est 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,
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Opinion of the Court

Montana Standard (Aug. 8, 2018). From 1912 to 1973, An-
aconda Company payrolls totaled over $2.5 billion, compen-
sating 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 An-
aconda. 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 An-
aconda’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 desig-
nated 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 Rich-
field to remediate more than 800 residential and commer-
cial 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, re-
vegetation 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 Su-
perfund site filed this lawsuit against Atlantic Richfield in
Montana state court, asserting trespass, nuisance, and
strict liability claims under state common law. The land-
owners sought restoration damages, among other forms of
relief.
Under Montana law, property damages are generally
measured by the “difference between the value of the prop-
erty 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 demon-
strate that he has “reasons personal” for restoring the prop-
erty and that his injury is temporary and abatable, mean-
ing “[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 res-
toration.” 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 ex-
ample, the landowners propose a maximum soil contamina-
tion 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 Su-
preme 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

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

claims for other types of compensatory damages under Montana law, in-
cluding loss of use and enjoyment of property, diminution of value, inci-
dental 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 landown-
ers’ claim for restoration damages.
 Cite as: 590 U. S. ____ (2020) 7

Opinion of the Court

argument that §113 stripped the Montana courts of juris-
diction 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 Su-
preme 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 pre-
sent 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 Rich-
field’s argument that the landowners were potentially re-
sponsible parties (sometimes called PRPs) prohibited from
taking remedial action without EPA approval under
§122(e)(6) of the Act. The Court observed that the landown-
ers had “never been treated as PRPs for any purpose—by
either EPA or [Atlantic Richfield]—during the entire thirty-
plus years” since the designation of the Superfund site, and
that the statute of limitations for a claim against the land-
owners 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 Atlan-
tic Richfield could potentially defeat the request for resto-
ration damages on the merits by proving that the restora-
tion 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 chal-
lenge 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
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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 judg-
ment 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 super-
visory control, it initiates a separate lawsuit. It is the na-
ture 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
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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 famil-
iar 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 liabil-
ity 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 differ-
ence between outright dismissal and further proceedings matters. We
granted review of this issue and both parties have fully briefed and ar-
gued 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.
4 There is a “special and small category of cases” that originate in state

law yet still arise under federal law for purposes of federal question ju-
risdiction. 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 neces-
sarily raises a federal issue. Atlantic Richfield raises the Act as an af-
firmative 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 Super-
fund 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 (relat-
ing 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 ju-
risdiction that §113(b) provides in the first place. Step
three: Section 113(b) thus provides federal courts jurisdic-
tion 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 obsta-
cles. First, by its own terms, §113(h) speaks of “Federal
court[s],” not state courts. There is no textual basis for At-
lantic Richfield’s argument that Congress precluded state
——————
5 Section 113(b) specifies that federal courts have exclusive jurisdiction

“without regard to the citizenship of the parties or the amount in contro-
versy.” 42 U. S. C. §9613(b). This is somewhat redundant because all
actions that “arise under” the Act necessarily satisfy federal question ju-
risdiction. But “[s]ometimes the better overall reading of the statute con-
tains 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 in-
tended 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 strip-
ping 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 reme-
dial 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 Rich-
field 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 Rich-
field’s argument. We have recognized a “deeply rooted pre-
sumption 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 “un-
mistakable implication from legislative history,” or “a clear
incompatibility between state-court jurisdiction and federal
interests” can displace this presumption. Id., at 460. Ex-
plicit, 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 sur-
mount the clear statement rule that applies to the uncom-
mon, 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 extraordi-
nary 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) (“Ex-
cept 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. “Thou-
sands of statutory provisions use the phrase ‘except as pro-
vided in . . . ’ followed by a cross-reference in order to indi-
cate that one rule should prevail over another in any
circumstance in which the two conflict.” Cyan, Inc. v. Bea-
ver 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 “notwithstand-
ing” clauses).
The actions referred to in §113(h) do not fall entirely
within §113(b). Challenges to remedial actions under fed-
eral 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 sub-
sumed 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 independ-
ent of one another. The two provisions overlap in a partic-
ular 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 ju-
risdictional question correctly, the Court erred by holding
that the landowners were not potentially responsible par-
ties under the Act and therefore did not need EPA approval
to take remedial action. Section 122(e)(6), titled “Incon-
sistent response action,” provides that “[w]hen either the
President, or a potentially responsible party . . . has initi-
ated a remedial investigation and feasibility study for a
particular facility under this chapter, no potentially respon-
sible party may undertake any remedial action at the facil-
ity 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 jurisdic-
tion or supplemental jurisdiction as well as federal law challenges aris-
ing 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 sec-
tion 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 depos-
ited, stored, disposed of, or placed, or otherwise come to be
located.” §9601(9)(B). Arsenic and lead are hazardous sub-
stances. 40 CFR §302.4, Table 302.4. Because those pollu-
tants have “come to be located” on the landowners’ proper-
ties, 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 pe-
riod 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 responsi-
ble 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 land-
owner” 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 Environ-
mental 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 ra-
ther than tens of thousands of competing individual ones.
Yet under the landowners’ interpretation, property own-
ers would be free to dig up arsenic-infected soil and build
trenches to redirect lead-contaminated groundwater with-
out 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 straight-
forward reading of the text avoids such anomalies.
JUSTICE GORSUCH argues that equating “potentially re-
sponsible parties” with “covered persons” overlooks the fact

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

Under §106, for example, EPA can initiate an injunctive abatement ac-
tion 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’ interpre-
tation 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-national-
priorities-list-npl. Congress provided a far more effective and efficient
solution in §122(e)(6): Landowners at Superfund sites containing hazard-
ous 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 con-
text, 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, ap-
pears in the caption to §107(a) and nowhere else. Mean-
while, “potentially responsible parties” are referenced not
just in the section on settlements, but also in the Act’s sec-
tions 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 per-
sons” 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 per-
mission from EPA in Washington if they want to dig out
part of their backyard to put in a sandbox for their grand-
children.” Tr. of Oral Arg. 62. The grandchildren of Mon-
tana can rest easy: The Act does nothing of the sort.
Section 122(e)(6) refers only to “remedial action,” a de-
fined 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 contami-
nated 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 re-
quires EPA to annually review and reissue that list.
§9605(a)(8)(B). EPA delists Superfund sites once responsi-
ble 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 resi-
dential landowners who are not responsible for contamina-
tion and do not interfere with the agency’s remedy. EPA,
Policy Towards Owners of Residential Property at Super-
fund Sites, OSWER Directive #9834.6 (July 3, 1991),
https://www.epa.gov/sites/production/files/documents/policy-
owner-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 land-
owners’ status as potentially responsible parties. Section
107(a) unambiguously defines potentially responsible par-
ties and EPA does not have authority to alter that defini-
tion. 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 re-
sponsible 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 settle-
ment negotiations carry such authority.
In short, even if EPA ran afoul of §122(e)(1) by not provid-
ing 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. Con-
gress, we are reminded, does not “hide elephants in mouse-
holes.” Whitman v. American Trucking Assns., Inc., 531
U. S. 457, 468 (2001).
We take no issue with characterizing §122(e)(6) as an el-
ephant. It is, after all, one of the Act’s crucial tools for en-
suring an orderly cleanup of toxic waste. But §122 of the
Act is, at the risk of the tired metaphor spinning out of con-
trol, 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-site-
cleanup-work-through-enforcement-agreements-and-orders.
The Act commands EPA to proceed by settlement “[w]hen-
ever practicable and in the public interest . . . in order to
expedite effective remedial actions and minimize litiga-
tion.” 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 or-
der 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 en-
ter 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, pro-
posals, 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 analo-
gous 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 incon-
sistent with the provisions of the act” in which they are
found. American Telephone & Telegraph Co. v. Central Of-
fice 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 lia-
ble 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 re-
mediation 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 ap-
preciate that cleanup plans generally must comply with “le-
gally 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 “pater-
nalistic central planning” but instead the “spirit of cooper-
ative 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 qual-
ify as contiguous property owners under §107(q), which
would pull them outside the scope of §107(a). The landown-
ers are correct that contiguous property owners are not po-
tentially 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 re-
lease 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 crite-
ria. §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 sub-
stances.” §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 “ev-
idence 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 land-
owners. Id., at 500–501, 358 P. 3d, at 137–138. The land-
owners had reason to know their property “could be contam-
inated 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 car-
rying out Superfund cleanups in order to maintain that sta-
tus. §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 con-
tiguous 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 dam-
ages 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’ restora-
tion 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 fur-
ther 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 jurisdic-
tion 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 nec-
essary nor prudent for us to do so. As I understand the
Court’s opinion, the Montana Supreme Court has two op-
tions on remand: (1) enter a stay to allow the landowners to
seek EPA approval or (2) enter judgment against the land-
owners on their restoration damages claim without preju-
dice 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 fil-
ings 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 de-
cide 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 im-
portant 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 en-
vironmental problems. See Brief for United States as Ami-
cus 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 devil-
ishly 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 an-
swer is correct, and we have no basis for such confidence
——————
1 We 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 an-
swers. 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 ex-
ceedingly difficult, if not impossible, to fit together. Here is
what these provisions say, with language that is not perti-
nent for present purposes omitted:

“(b) Jurisdiction; venue
“Except as provided in subsectio [n] . . . (h) of this sec-
tion [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 citi-
zenship of the parties or the amount in controversy. . . .
. . . . .
“(h) Timing of review
“No Federal court shall have jurisdiction under Fed-
eral law other than under section 1332 of title 28 (re-
lating to diversity of citizenship jurisdiction) or under
State law which is applicable or relevant and appropri-
ate under section 9621 of this title [CERCLA §121, 42
U. S. C. §9621] (relating to cleanup standards) to re-
view any challenges to removal or remedial action se-
lected under section 9604 of this title, or to review any
order issued under section 9606(a) of this title [concern-
ing 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 pro-
visions].” 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 re-
gard 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 chal-
lenge 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 fed-
eral 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 restora-
tion 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’ restora-
tion 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 juris-
diction 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 diver-
sity or any minimum amount in controversy? The only log-
ical 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 rea-
son 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 juris-
diction 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 in-
clude them on the list of claims under CERCLA that it like-
wise exempted from §113(h)’s general withdrawal of juris-
diction 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
——————
2 The Court answers that §§113(b) and (h), though partially overlap-

ping, 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.
3 The 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 relation-
ship 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 in-
terpretation of §§113(b) and (h), and although this interpre-
tation solves the problems noted above, it has problems of
its own. The Court, as noted, runs into trouble by interpret-
ing the phrase “arising under” CERCLA in §113(b) to mean
what “arising under” means in 28 U. S. C. §1331. The Gov-
ernment obviates this difficulty by arguing that “arising un-
der” 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 Gov-
ernment 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. Cen-
tral Bank of Nigeria, 461 U. S. 480, 492 (1983)). If §113(b)
uses the phrase in something like this sense, the jurisdic-
tion it confers can reach some claims under state law, and
that would explain §113(b)’s specification that this jurisdic-
tion is not dependent on either diversity or amount in con-
troversy. In other words, this language makes clear that
federal district courts have jurisdiction to hear these state-
law claims without the restrictions that usually apply when
federal courts entertain such claims.
Up to this point, the interpretation favored by the Gov-
ernment and petitioner proceeds smoothly, but it stumbles
when it moves from §113(b) to §113(h). That provision re-
duces 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 par-
ties are diverse.4 If it turns out that diversity is lacking,
——————
4 They 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 state-
law claims covered by §113(b) to be heard exclusively in fed-
eral 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 in-
structions to dismiss on jurisdictional grounds. Ibid. But
Atlantic Richfield presented its §122(e)(6) theory as an al-
ternate ground for reversal, and has prevailed on that ba-
sis. 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 un-
answered . . . would leave the parties in a state of uncer-
tainty.” Ante, at 9, n. 3. But, as described above, there ap-
pears 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, brief-
ing, and argument on §113 may warrant resolving the ques-
tion 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 dis-
position of the immediate case.” Whitehouse v. Illinois Cen-
tral R. Co., 349 U. S. 366, 373 (1955).
* * *
Section 113 may simply be a piece of very bad draftsman-
ship, 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 op-
erated a smelter near the town of Opportunity, Montana.
At one time, the smelter produced much of the Nation’s cop-
per 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 pub-
lic. 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 ap-
preciated. 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.
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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 ar-
senic levels exceeding 250 parts per million (ppm). App.
94–95. For so-called “pasture land”—that is, nearly every-
thing else—the government set the threshold for soil re-
moval 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 fin-
ished 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 histori-
cally 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 con-
sistent with the Commerce Clause or some other constitu-
tionally enumerated power. Nor does the federal govern-
ment 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 respon-
sibility 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 the-
ories when they brought suit in state court seeking restora-
tion 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 pri-
vate 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, with-
out 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 sup-
plant, traditional state law remedies and promote, not pro-
hibit, 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 require-
ments 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 re-
leases of hazardous substances or other pollutants or con-
taminants.” §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
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Opinion of GORSUCH, J.

that even the Court today does not invoke as limits on re-
covery 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 land-
owners’ right to use state law to restore their lands. After
all, merely “[i]nvoking some brooding federal interest or ap-
pealing 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 Pe-
troleum 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 par-
ties 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 pro-
vision only bars those “potentially responsible” to the fed-
eral government from initiating cleanup efforts without
prior approval. To get where it needs to go, Atlantic Rich-
field 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 capa-
ble of being held liable by the federal government for any-
thing. In the first place, the federal government never no-
tified 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 par-
ties with notice that they might be held responsible for re-
medial 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 haz-
ardous 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-
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Opinion of GORSUCH, J.

sponsible parties, subsection (e)(6) bars a potentially re-
sponsible party from taking unauthorized remedial
measures. See §§922(e)(1)–(3), (h). This ensures the gov-
ernment 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 pro-
cess 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 in-
struction 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 prom-
ises 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 “rele-
vant 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 li-
ability could be barred even from undertaking remedial ef-
forts on their own lands at their own expense, required in-
stead 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 constitu-
tional 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 fed-
eral government the power to regulate virtually each shov-
elful 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 con-
textual 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 haz-
ardous waste has “come to be located.” §§9607, 9601(9). Be-
cause 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 neces-
sarily 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. Lin-
guistically, §107 identifies the “[c]overed persons” the gov-
ernment is authorized to sue. Section 122 requires a “po-
tentially 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 par-
ties (see, e.g., §§9604, 9605, 9611). Logically, too, the con-
cepts 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 poten-
tial responsibility. Atlantic Richfield’s argument, thus, es-
sentially 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 poten-
tially responsible parties and CERCLA doesn’t require
them to seek permission from federal officials before clean-
ing their own lands. If Congress had wished to extend its
ask-before-cleaning rule to every covered person—includ-
ing those the government chooses not to pursue for poten-
tial liability—all it had to do was say so. Congress dis-
played 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-
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Opinion of GORSUCH, J.

port its position, Atlantic Richfield resorts to this odd argu-
ment. Maybe the terms “[c]overed persons” and “poten-
tially 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 Re-
search Corp., 551 U. S. 128 (2007), where the Court spoke
of “Section 107(a) [as] defin[ing] four categories of PRPs [po-
tentially responsible parties].” Id., at 131–132.
That may be so but it does not make it so. The relation-
ship 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 per-
sons” 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 In-
dustries, 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, other-
wise, innocent and inconsequential judicial remarks might
mistakenly come to trump democratically adopted laws.
See Reiter v. Sonotone Corp., 442 U. S. 330, 341 (1979). At-
lantic 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 Rich-
field). 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 (pro-
vided, 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 en-
force what amounts to a federal easement requiring land-
owners to house toxic waste on their lands? The govern-
ment 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 pro-
ject 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, gen-
erations 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 ef-
forts. It endorsed a federalized, not a centralized, approach
to environmental protection. What if private or state
cleanup efforts really do somehow interfere with federal in-
terests? Congress didn’t neglect the possibility. But in-
stead of requiring state officials and local landowners to beg
Washington for permission, Congress authorized the fed-
eral 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. De-
parting from CERCLA’s terms in this way transforms it
from a law that supplements state environmental restora-
tion efforts into one that prohibits them. Along the way, it
strips away ancient common law rights from innocent land-
owners and forces them to suffer toxic waste in their back-
yards, playgrounds, and farms. Respectfully, that is not
what the law was written to do; that is what it was written
to prevent.