The U.S. Supreme Court has declined to hear a challenge of a Ninth Circuit Court of Appeals ruling granting the Shoshone-Bannock Tribes jurisdiction over the cleanup of FMC Corp.’s former plant site near Pocatello.
Effectively, the Supreme Court’s denial of a writ of certiorari to take up the appeal solidifies the Ninth Circuit’s ruling as law. The Tribes will retain regulatory authority over addressing 22 million tons of hazardous waste stored at the former plant, located on the Fort Hall Indian Reservation just west of Pocatello.
The property, known as the Eastern Michaud Superfund site, is regulated under the Comprehensive Environmental Response, Compensation and Liability Act for lingering environmental contamination.
“The Tribes are very pleased that the Supreme Court of the United States did not find any merit to FMC’s appeal and that FMC is finally required to honor their agreement to comply with Tribal jurisdiction,” Fort Hall Tribal Council Chairman Devon Boyer said in a press release.
FMC issued a short statement in response to the Supreme Court’s decision: “FMC is disappointed the U.S. Supreme Court has declined to hear the case FMC v. Shoshone-Bannock Tribes. While we believe our arguments were legally correct, we accept the decision of the U.S. Supreme Court.”
The Tribes filed the federal lawsuit in 2005, seeking to force FMC to obtain an annual Tribal business permit, as per the conditions of an agreement with the company.
The local FMC plant opened in 1949 and was the world’s largest elemental phosphorus plant. According to a history of the plant on an FMC website, the plant annually produced 250 million pounds of elemental phosphorus from 1.75 million tons of raw shale and silica when all four of its furnaces were running. The phosphorus was sent to the company’s other plants, where it was converted into food-grade phosphoric acid, commonly added to soft drinks. Phosphoric acid was also used as an additive in baking powder, flour, refined sugar, cereal, cheese, meat, jelly and malted milk, according to the corporate history
“Phosphates are also used in the manufacture of plastics, glass, tires, paints and fabrics; in the production of toothpaste, detergents, dish washing and household cleaning products; as well as in the tanning of leather, production of matches and flame retardant products, and in the manufacture of antibiotics, including penicillin,” the FMC history reads.
FMC voluntarily agreed to accept an annual Tribal permit in 1998 but did not continue honoring the agreement and clean up the waste when the plant closed in 2002, according to the Tribes. At about that time, the Tribes created their Waste Management Act to specify requirements for companies that create or store waste on property within the reservation, according to the press release.
“This decision helps all of Indian country in efforts to protect Tribal lands and natural resources as well as the betterment of all people of Southeast Idaho,” Boyer said in the press release.
Tribal and lower federal courts had all held throughout the years that the terms of the agreement are binding, the Tribes noted in their press release.
“We are grateful for the leadership and teamwork completed by our prior Tribal Council members, our Land Use Policy Commissioners, Environmental Waste Management Program staff, contractors and attorneys since 1998,” Tribal Council member Nathan Small said in the press release.
The Tribes and regional conservation organizations have heralded the development as a victory for the environment and public health.
“This decision furthers the Tribes’ efforts to protect the water and natural resources of the reservation and surrounding communities,” Tribal Council member Lee Juan Tyler said in the press release. “This is a victory for Mother Earth and the Tribes’ ability to protect our water and environment.”
Marie Callaway Kellner, conservation program director with the Idaho Conservation League, believes the precedent from the FMC case will have ramifications throughout the West.
“We congratulate the Tribes on this. It’s a great win for them and it probably would translate across Indian country about how government and private industry interact with Tribes,” she said. “It’s requiring this hazardous waste that’s been a water and air quality concern for two decades must be cleaned. ... It’s a win for public health. Corporations must be held accountable for cleaning up hazardous waste.”