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In May of 2018, the NAM filed an amicus brief to urge the U.S. Supreme Court to review and reverse a Montana Supreme Court decision that undermines the predictability of EPA’s environmental remediation orders. The case arises under the federal Comprehensive Environmental Response, Compensation, and Liability Act (known as “CERCLA” or “Superfund”). Under CERCLA, EPA has the authority to order comprehensive clean up orders for sites containing hazardous wastes. Those orders preempt state and individual efforts to impose remediation requirements. The Montana Supreme Court nonetheless allowed nearby landowners to seek compensation for a remediation plan that conflicts with the EPA’s cleanup order. If not overturned, that decision will undermine the certainty and predictability for manufacturers that own Superfund sites. In support of a petition for review by the U.S. Supreme Court, the NAM filed an amicus brief that explains how the Montana Supreme Court’s decision frustrates environmental remediation. On June 10, 2019, the Court granted review of the case for the Court’s 2019-2020 term. On August 28, 2019, the NAM filed an amicus brief on the merits that supports Atlantic Richfield's arguments on the merits. And on April 20, 2020, the Court held that the landowners needed EPA approval to take remedial action to ensure “a single EPA-led cleanup effort rather than tens of thousands of competing individual ones.” Although the opinion leaves open future state lawsuits related to Superfund sites, the need to obtain prior EPA approval presents a significant obstacle to such challenges—and provides meaningful certainty for manufacturers.

The California Supreme Court ruled in July, 2010, that local governments may use contingency fee lawyers to bring product liability cases as long as the ultimate authority for the litigation remained with the governments. Using a balancing of interests test, it found that neither a liberty interest (such as in a criminal case) nor the right of an existing business to continued operation is threatened by the government's litigation, as long as the contingent-fee lawyers act under a "heightened standard of neutrality."

The NAM joined with the American Chemistry Council, American Coatings Ass'n, National Petrochemical and Refiners Ass'n, Property Casualty Insurers Ass'n of America, and Pubilc Nuisance Fairness Coalition in an amicus brief in support of the appeal. We argued that the neutrality requirement for government lawyers is of national importance, involving fundamental due process rights. Government attorneys must not have personal, financial or other extraneous influences that might bias their ability to be impartial or to elevate their own interest over a just outcome in any case. The public expects public officials not to tolerate the "appearance of impropriety," particularly in public nuisance cases, which are quasi-criminal proceedings that seek to vindicate rights owed to the population generally.

We argued that contingency fee agreements distort the decision-making of both private attorneys and the government attorneys who retain and oversee them. The agreements create improper financial incentives for both parties to the contract, fostering opportunistic attitudes that distort the government's duty to exercise independent and unbiased judgment. And as a practical matter, there is no way for the public to verify that a government supervisor is in fact neutral and controlling the acts of the contingent-fee lawyer. Government's use of contingency fee lawyers has provoked public outrage, and has so far affected many industries, including tobacco, firearms, lead paint, poultry and pharmaceuticals.

Unfortunately, the Court on Jan. 10, 2011, declined to hear this appeal.