Written by David A. O’Neill, JD, Director of Investigations, PolicyFind
The U.S. Supreme Court heard oral argument in the case styled CTS Corp. v. Waldburger on April 23, 2014. At issue was whether the Fourth Circuit Court of Appeals had rightly concluded that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempted a North Carolina statute setting a date after which a law suit against a polluter could be brought following the detection of damage from environmental contamination. The Court’s decision is expected in June.
The case involves the recent discovery of dangerous levels of carcinogenic solvents in drinking water wells in Asheville, North Carolina. From 1959 to 1985, CTS Corp. had manufactured electronic parts in a nearby factory and stored these solvents on-site. When soil and groundwater contamination was discovered in 2009, the present landowner sought a ruling from the U.S. District Court that CTS was responsible for property damage and for removing the contaminants. The District Court, however, ruled for CTS, citing a state statute imposing a date certain for when such suits could no longer be brought. It stated that this “statute of repose” barred suits brought more than ten years after CTS’s “last act or omission” at the site.
Appealing the District Court’s ruling, landowner Waldburger argued that the North Carolina statute was a statute of limitations, the very type that CERCLA was amended in 1986 to preempt. CTS characterized it however as a “statute of repose,” stating that Congress had carefully crafted the amendment to CERCLA to preempt statutes of limitations but not “statutes of repose.” The North Carolina statute does not bar actions from the date of the discovery of the injury, CTS argued, but rather bars actions irrespective of those events. Further, it argued, a statute of repose creates a substantive right to be free from liability, a state right which the U.S. Constitution requires the U.S. to protect.
Should the Supreme Court rule that CERCLA does not preempt statutes of repose, the result may be that citizen suits under CERCLA would be dismissed.
The U.S. Supreme Court’s election to hear the Waldburger case has attracted the attention of both the U.S. Justice Department and the U.S. Marines at Camp Lejeune, parties to similar litigation regarding the contamination of drinking water by solvents. The fact that the United States Government is the defendant in the Lejeune case has further prompted the U.S. Justice Department to file a brief with the Supreme Court on CTS’s behalf.
A Supreme Court decision in CTS’ favor might create an incentive for state legislatures without a statute of repose to enact one as a means of attracting industry to their states. This possibility was discussed by Justice Ruth Bader Ginsburg during oral argument as a possible unwelcome result should the Court overturn the Fourth Circuit’s decision. Justice Antonin Scalia admitted frankly that he had “never heard of this distinction between statutes of repose and statutes of limitations.” Justice Elena Kagan seemed incredulous that Congress was “so sophisticated” in 1986 that it would have intentionally avoided the possible Constitutional issues by deftly excluding “statutes of repose” in its drafting of CERCLA. While these comments seemed affirmative of the Fourth Circuit’s decision, it is well known that the Justices often pose questions during oral argument to test their predispositions. As it only takes five of nine Justices to make new law, the curtailment of citizens’ rights under CERCLA may indeed be imminent.
One can imagine the way in which the environmental landscape might be changed following a pro-CTS decision by the Supreme Court. It would be a United States with many more contaminated and abandoned sites. A country where a polluter can evade their responsibility for causing contamination and far fewer victims of toxic pollution will have their day in court. Imagine not finding out for decades that your children were drinking contaminated water and when you do learn that your community has an abnormally high rate of cancers, likely the result of this contamination, the law protects the ones that caused that contamination because the spills occurred years ago. That just wouldn’t be fair.