Whether the Alaska Supreme Court's imposition of strict liability violated petitioners' right to due process

QUESTIONS PRESENTED Alaska law imposes strict liability on facility owners for the unpermitted release of any “hazardous substance,” defined to mean “an element or compound” that “presents an imminent and substantial danger to the public health or welfare.” Alaska Stat. § 46.03.826(5)(A). In the decision below, the Alaska Supreme Court imposed strict liability on petitioners, the former owners of an oil refinery in North Pole, Alaska, after a solvent called sulfolane was found in low levels in local groundwater wells. The court recognized that the definition of the phrase “hazardous substance” can be vague in application and that, while petitioners owned and operated the oil refinery, Alaska’s environmental regulator expressly told them that the agency was not regulating sulfolane as a “hazardous substance.” Indeed, to this day, the agency has not listed sulfolane in the regulatory table of cleanup levels for regulated hazardous substances. The court nevertheless held that petitioners had fair notice that sulfolane constituted a “hazardous substance.” It then imposed over $100 million in total liability, including over $50 million for the expansion of North Pole’s piped-water system. The questions presented are: 1. Whether the Alaska Supreme Court’s imposition of strict liability violated petitioners’ right to due process, when the State had taken the position, while petitioners owned and operated the refinery, that sulfolane was not regulated as a “hazardous substance.” 2. Whether the award of costs for the expansion of North Pole’s water system violated petitioners’ right to due process and amounted to an unconstitutional taking, where no drinking well in North Pole had a level of sulfolane shown to be harmful, and where there had been no showing that the expansion was necessary to prevent harm from the release of sulfolane. (I)