Asarco, Incorporated, Respondent, v. The Department of Ecology, et al., Appellants, 145 Wash. 2d 750

Chambers, J. We must determine whether a preemptive challenge to a possible Washington State Department of Ecology enforcement action under the Model Toxics Control Act is justiciable. We conclude it is not. FACTUAL BACKGROUND In 1894, the Puget Sound Reduction Company of West Virginia began operating a smelter on a 44 acre site in Everett, Washington. Arsenic and lead were smelted there for sale. In 1903, a corporation that eventually became the modern day Asarco purchased the smelter and continued the business.

By 1912, smelting and arsenic recovery was ended, and by 1937, all of the 44 acre smelter property was sold to different buyers, including private land owners, the City of Everett, the State Department of Transportation, Burlington Northern and the Weyerhaeuser Company. Unheeded at the time was the lingering legacy of the smelter operation, arsenic and lead in the soil in amounts ranging up to 760,000 parts per million for arsenic alone.

In 1980, the United States enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675, which imposes strict, joint and several liability for environmental damage on past and present owners of contaminated property as well as the polluters and the transporters of pollution. CERCLA has been vigorously litigated in state and federal courts, and has been consistently upheld as constitutional. In 1988, the voters in the state of Washington passed Initiative 97, the Model Toxics Control Act (MTCA) (chapter 70.105D RCW).

MTCA was modeled on CERCLA, and we have found CERCLA case law persuasive in interpreting MTCA. See Bird-Johnson Corp. v. Dana Corp., 119 Wn.2d 423, 427, 833 P.2d 375 (1992). Like CERCLA, MTCA establishes a mechanism to clean up hazardous waste sites. MTCA is administered by the Washington State Department of Ecology, which was granted investigatory and enforcement powers.

Limited state funds are raised for clean up projects through a tax on hazardous waste, but for the most part, cleanup is paid for and performed by those public or private entities identified by Ecology as “potentially liable persons.” Potentially liable persons include the current and former property owners, polluters, and transporters of waste. Potentially liable persons are jointly and severally liable, and liability is strict, though potentially liable persons have a statutory right to seek contribution from others potentially liable under the statute. RCW 70.105D.040(2), .080.

In 1990, Weyerhaeuser discovered evidence of elevated levels of arsenic, lead, and cadmium at the old smelter site, and informed Ecology. Ecology investigated and consequently identified the smelter site and 642 acres surrounding it as a hazardous waste site.

In 1991, Ecology informed Asarco that it was proposing to find Asarco a potentially liable person for the cleanup on a site that ultimately included the old 44 acre smelter site and 642 acres surrounding it, including lowlands to the east of the old smelter site and uplands to the west. (See following diagram.) At that time, Ecology also tentatively identified Weyerhaeuser, Burlington Northern, the Washington State Department of Transportation and the City of Everett as potentially liable persons.

Ecology ultimately determined Asarco was a potentially liable person and decided not to make a final determination of the status of the other four entities, leaving Asarco free to bring a contribution action against them. Initially, Asarco cooperated with Ecology. Between 1991 and June 1998 Asarco investigated the site; laid the groundwork for the eventual cleanup; took some steps to protect the residents from exposure to toxic metals; and purchased 7.2 acres of heavily polluted residential properties on the former smelter site.

As of June 1998, Asarco had spent about $11 million on these efforts, including testing of residents for elevated lead and arsenic levels. No evidence of elevated lead or arsenic levels in local residents was presented at trial. Unfortunately, it became clear that Ecology and Asarco would not agree on the ultimate clean-up standards. Asarco offered to clean up the site to a level of 230 parts per million (ppm) of arsenic and 500 ppm for lead, similar to that applied by the United States Environmental Protection Agency (EPA) to the Alcoa site in Ruston.

According to Asarco, Ecology unreasonably adhered to the lower levels of 20 ppm for arsenic and 353 ppm for lead. On June 25 1998, the United States Supreme Court published Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S. Ct. 2131, 141 L. Ed. 2d 451 (1998). Eastern Enterprises invalidated the application of a pension and health care funding system established by Congress against a specific company as unconstitutional. However, the Court could not agree on which provision of the United States Constitution was violated.

The funding system’s retroactivity offended five members of the Court: three on a takings theory, one on a takings and ex post facto theory, and one on a substantive due process theory. Only four justices signed on to the majority opinion, and four justices dissented. Five days after the Supreme Court filed the Eastern Enterprises decision, Asarco brought a declaratory judgment action in Thurston County Superior Court asking the trial court to find MTCA unconstitutional as applied to them. Asarco argued:

(1) MTCA’s joint and several strict liability for past pollution violated due process, (2) retroactive application of MTCA was a takings, (3) the liability schema violated equal protection,

(4) Ecology’s regulations were arbitrary and capricious, (5) the enforcement and penalty provisions of MTCA violated due process, and (6) the specific clean up standards Ecology was likely to order were arbitrary and capricious. Ecology moved for

summary judgment, arguing the issue was not ripe for review and the conditions for judicial review laid out in MTCA had not been met. Ecology asked the case be deferred until the final clean-up order was entered. When the declaratory judgment action was filed, there was no final order for the uplands, and no draft plan for the lowlands. The record does not reveal whether the old smelter site would be cleaned in a separate plan. Since there was no final order, there was no meaningful opportunity for court review of the burdens and benefits of cleanup.

The trial judge dismissed claims (4) through (6), but allowed the “as applied” constitutional challenges to go forward. Shortly before trial, Ecology issued a final cleanup plan for a portion of the hazardous waste site, and indicated the clean-up plan for the remainder would be issued in 2001. The parties proceeded to trial, but did not litigate the specifics of the uplands plan. Instead, their arguments focused on whether the retroactivity of MTCA as applied to Asarco rendered it unconstitutional.

The trial judge found retroactive application of MTCA requiring Asarco to clean up the actual smelter site did not offend the United States Constitution, because Asarco could have anticipated clean-up liability for leaving soils highly contaminated on its property. However, he found requiring Asarco to clean the surrounding 642 acres did violate due process principles and was an unlawful takings of property based on the disproportionality of the damage caused by Asarco versus the liability imposed on Asarco. Both sides sought discretionary review in this Court.

Asarco contends the trial court erred in holding it responsible for cleaning up the original smelter site; Ecology contends the trial court erred in concluding Asarco could not be held liable constitutionally for cleaning the surrounding polluted area. We granted review. ANALYSIS While this case presents significant constitutional questions, first we must determine whether review is appropriate given the procedural posture of the case. Ecology has argued from the beginning of this case that the trial court lacked jurisdiction over the constitutional questions before the entry of the final enforcement order.

The ripeness doctrine exists “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967). Asarco presents us with a justiciability conundrum; while this is an “as applied” challenge, nothing has been applied.

The mere convenience to Asarco of deciding the controversy ahead of Ecology’s clean-up order is not enough to ripen the claim. If we find “applied challenges” justiciable before anything has been applied, we risk becoming an advisory court and overstepping our constitutional authority. Further, general constitutional challenges could be disguised as a more limited “as applied” challenge. One should not substitute for the other.

Justiciability requires: “ ‘(1)... an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement, (2) between parties having genuine and opposing interests, (3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and (4) a judicial determination of which will be final and conclusive.’ ” First United Methodist Church of Seattle v. Hearing Exam’r, 129 Wn.2d 238, 245, 916 P.2d 374 (1996) (quoting First Covenant Church v.

City of Seattle, 114 Wn.2d 392, 398, 787 P.2d 1352 (1990) (quoting Diversified Indus. Dev. Corp. v. Ripley, 82 Wn.2d 811, 815, 514 P.2d 137 (1973))). Clearly, (4) is not present here, as this case is not developed sufficiently for this Court to render a decision which will conclude the matter. Even if this Court were to find the case justiciable, we could not resolve with finality the specific challenges brought by Asarco.

The learned judge below depended heavily on Eastern Enterprises’ strong criticism of retroactive civil liability, but subsequent federal case law development has demonstrated the limited precedential scope of Eastern Enterprises. While Ecology is not seeking to physically take the land, less intrusive government action can constitute a regulatory taking. A regulatory taking exists when the regulation of land “goes too far.” Pa. Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S. Ct. 158, 67 L.

Ed. 322 (1922). “A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes. . . . ‘[It] is a question of degree—and therefore cannot be disposed of by general propositions.’ ” MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348, 106 S. Ct. 2561, 91 L. Ed. 2d 285 (1986) (quoting Pa. Coal, 260 U.S. at 416).

To determine whether a specific government action constitutes a regulatory takings, we apply the Connolly three part test, directing the court to make an ad hoc, factually specific analysis of: “ ‘(1) the economic impact of the regulation on the claimant, (2) the extent to which the regulation interferes with the claimant’s reasonable investment-backed expectations, and (3) the nature of the governmental action.’ ” Eastern Enters., 524 U.S. at 518 (quoting Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 225, 106 S. Ct. 1018, 89 L. Ed. 2d 166 (1986)).

Prior to the order and contribution action, we cannot determine (1) or (2). We have no record to determine what level of clean-up might be reasonable. We have nothing in the record but speculation as to how much the clean-up might cost. Nor do we know the economic impact of the order, or the extent to which the order will interfere with distinct investment backed expectations. Therefore, the takings claim cannot be resolved, and is rejected. Asarco urges that we decide this case under substantive due process.

It urges us to find the retroactivity sufficient to establish a violation of the Fourteenth Amendment to the United States Constitution, which prohibits states from “depriving] any person of life, liberty, or property, without due process of law.” We decline to do so. This Court established an analytical framework for analyzing whether a regulation violates substantive due process. Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911 (1990).

Since Presbytery, Washington courts apply a three-pronged test: (1) whether the regulation is aimed at achieving a legitimate public purpose; (2) whether it uses means that are reasonably necessary to achieve that purpose; and (3) whether it is unduly oppressive on the landowner. Presbytery, 114 Wn.2d at 330. We observed the third inquiry would usually be the most difficult to meet: The “unduly oppressive” inquiry lodges wide discretion in the court and implies a balancing of the public’s interest against those of the regulated landowner.

We have suggested several factors for the court to consider to assist it in determining whether a regulation is overly oppressive, namely: the nature of the harm sought to be avoided; the availability and effectiveness of less drastic protective measures; and the economic loss suffered by the property owner. Presbytery, 114 Wn.2d at 331. The record before us does not permit us to make a substantive due process analysis under our case law. While the harm sought to be remedied is significant, there is no record on the availability and effectiveness of less drastic protective measures.

This issue should be litigated at the trial court, for example, when a potentially liable person is resisting an enforcement order. There is little evidence on the economic loss that Asarco may suffer,* nor do we know whether the means are reasonably necessary to achieve the purpose. CONCLUSION We conclude the case is not justiciable; therefore we vacate the trial court’s order below and remand this case to the trial court for further proceedings consistent with the Court’s opinion and without prejudece to either party to raise the same issues in any appropriate further proceeding.

Alexander, C.J., and Smith, Johnson, Madsen, Ireland, and Owens, JJ., concur. Liability to clean the 7.2 acres purchased by Asarco is not at issue in this case. When a site is hazardous due to the presence of a carcinogen, the clean up goal is to reduce the risk of cancer to one in a million. WAC 173-340-700(5)(b). For arsenic, that level is roughly 1 ppm. However, that is lower than the natural background level of arsenic, and regulations do not set cleanup lower than natural background levels. WAC 173-340-700(6)(d). Instead, Ecology seeks to reduce arsenic to the natural background level of 20 ppm.

WAC 173-340-740(2) (tbl. 2). That is estimated in the regulations to correspond to a three in one hundred thousand cancer risk. WAC 173-340-740(3)(b)(iii)(B). Lead is not believed to cause cancer. Ecology based its 353 ppm clean up standard for lead on the EPA’s Integrated Exposure Uptake Biokinetic (IEUBK) model. The IEUBK model relates environmental exposure to lead (and consequent health risk) against blood levels of lead. Ecology is focusing on arsenic as reducing arsenic will also reduce lead levels.

While many of its arguments appear to be facial challenges to the constitutionality of MTCA, Asarco has brought only an “as-applied” challenge. We do not suggest individual plans could not be reviewed. However, we are unable to determine if the final plans would be integrated. The equal protection claim was subsequently dismissed without prejudice. The clean-up plan for the uplands portion of the site is detailed, over 300 pages long.

It outlines clean-up standards for soil, groundwater, surface water, selection and implementation of remedies, institutional controls to prevent future problems and compliance monitoring, among other things. This Court was not provided comparative plans that have been approved or disapproved based on the Constitution, nor has it been provided specific argument why this plan is unsuitable. Asarco argued below the clean-up standards were inconsistent with the EPA’s clean-up standards for Ruston, but otherwise, we have no argument about the fairness of the plan.

The trial court concluded Asarco was responsible for causing 30 percent of the lead and arsenic pollution, and the Puget Sound Reduction Company was responsible for 70 percent. We do not address in this case whether the Legislature can constitutionally delay the consideration of fully ripe constitutional questions. CERCLA was challenged in several courts based on Eastern Enterprises, and survived every challenge. See, e.g., Franklin County Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 552 (6th Cir. 2001); United States v. Alcan Aluminum Corp., 49 F.

Supp. 2d 96 (N.D.N.Y. 1999); Combined Props. I Greenbrier Ltd. P’ship v. Morrow, 58 F. Supp. 2d 675, 681 (E.D. Va. 1999). Noted one commentator: “to date, CERCLA challenges based on Eastern Enterprises have not fared well. .. . the courts will most likely continue to apply the Eastern Enterprises decision very narrowly, and its effect on future challenges to CERCLA legislation will be minimal.” Karen S. Danahy, CERCLA Retroactive Liability in the Aftermath of Eastern Enterprises v. Apfel, 48 Buff. L. Rev. 509, 563-64 (2000) (collecting cases).

The federal courts applying Eastern Enterprises in subsequent cases have overwhelmingly found it did not articulate binding principles of law. See, e.g., Ass’n of Bituminous Contractors v. Apfel, 156 F.3d 1246, 1254-55 (D.C. Cir. 1998) (“Justice Kennedy’s due process reasoning can in no sense be thought a logical subset of the plurality’s takings analysis.”); Anker Energy Corp. v. Consol. Coal Co., 177 F.3d 161, 170 (3d Cir.), cert. denied, 528 U.S. 1003 (1999); Commonwealth Edison Co. v. United States, 46 Fed.

Cl. 29, 39 (2000) (“[N]o part of the plurality’s reasoning constitutes binding precedent.”); Morrow, 58 F. Supp. 2d at 681 (“[N]o single theory of law was adopted by a majority of the Court, and Eastern Enterprises is not entitled to any precedential weight.”); Franklin County, 240 F.3d at 552 (“We conclude that Eastern Enterprises has no precedential effect on this case because no single rationale was agreed upon by the Court.”); Unity Real Estate Co. v. Hudson, 178 F.3d 649, 658 (3d Cir. 1999) (finding that the “splintered” decision in Eastern Enterprises “makes it difficult to distill a guiding principle”).

See also Guimont v. Clarke, 121 Wn.2d 586, 608-09, 854 P.2d 1 (1993). The trial judge entered a finding of fact that stated the “estimated cost for remediation of the Uplands portion of the Everett Site in accordance with the draft [clean up action plan] was approximately $78 million.” Finding of Fact 54. Given our disposition of this case, we make no ruling regarding this figure. Asarco is free to contest or negotiate this issue in proper proceedings pursuant to

chapter 70.105D ROW.