The U.S. is not liable for clean up costs for World War Two-era pollution at 12 refineries now owned by Valero Energy and its subsidiaries, a federal appeals court ruled Friday.
A three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati said heavy federal regulation of refineries during the war wasn’t enough to qualify the U.S. as an “operator” of the facilities that would be liable for a share of the cleanup costs under the nation’s Superfund law.
Valero and the U.S. Department of Justice didn’t immediately respond to requests for comment.
The Comprehensive Environmental Response Compensation and Liability Act, also known as the Superfund law, establishes liability for remediation costs for past, as well as current, operators of polluted sites and gives present owners the ability to seek contribution for cleanup.
But parties are only responsible if they are operators that directly manage, direct or conduct operations related to waste disposal, the court said. And the U.S. “had little to do with” that even if it exercised considerable regulatory control over the oil industry by setting prices, rationing supplies and other things, according to the court.
“During the war, the refineries, not the government, made the key management decisions related to waste,” wrote Chief Circuit Judge Jeffrey Sutton for the court, noting that several other circuit courts have previously reached the same conclusion in similar cases against the government.
Valero sued the United States in 2017, alleging the government is responsible for a share of the cleanup costs at its refineries because it essentially controlled production during the war, leading to waste.
A federal judge in Michigan granted Valero summary judgment in 2021 after finding “no reasonable juror” would disagree that the U.S. essentially operated the sites in California, Texas, Michigan, Oklahoma, Kansas, Illinois and Tennessee.
The government then appealed, arguing the judge misconstrued what qualifies as an operator under the Superfund law and calling the order “unprecedented in the liability it assigns to the government for its wartime conduct.”
The case is MRP Properties Co LLC v. United States, 6th U.S. Circuit Court of Appeals, No. 22-1789.