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Thursday, April 24, 2014

Environment - "Victims of toxic water meet skepticism at SCOTUS"

That is the headline of this important story by Richard Wolf of USA Today. Some quotes from the long story:

WASHINGTON -- A divided Supreme Court seemed mostly dubious Wednesday that federal claims for environmental damages can be brought after state deadlines have passed, signaling a potential setback for thousands of former Marines and their families exposed decades ago to contaminated water.

The little-noticed case before the court concerned corporate liability for land found to be contaminated decades after the pollution occurred, and several justices sympathized with the landowners' plight. But they didn't sound inclined to strike down a state law that foreclosed legal claims. * * *

North Carolina, home to both conflicts, has a 10-year "statute of repose" that sets an outer deadline for claims to be filed. Unlike a statute of limitations, which usually begins when an injury is recognized, the clock ticks from the date of the final contamination — even if residents remain unaware until decades later.

A provision added in 1986 to federal Superfund legislation was intended to help victims by giving them two years to file claims from the date they discover the cause of their injuries. In CTS Corporation v. Waldburger, the claims came more than two decades after the electronics plant closed down. The water pollution at Camp Lejeune wasn't noticed for at least 12 years after the last well came on line.

Wednesday's case came to the Supreme Court from the 4th Circuit Court of Appeals, which sided with 23 landowners seeking damages and remediation because their land was contaminated with toxic chemicals from 1959 to 1985. It wasn't until 2009 that landowners learned their water could cause liver and kidney damage, heart ailments and cancer.

Similarly, the last wells contaminated with industrial solvents such as trichloroethylene (TCE), benzene and other chemicals at the Marine Corps base came on line in 1985. Under North Carolina law, that means claims should have been filed by 1995. But no one knew of the danger until 1997. * * *

Several justices expressed ignorance Wednesday about the differences between statutes of repose and the better known statutes of limitations. "I never heard of this distinction," Justice Antonin Scalia said. "This was new for me," added Justice Anthony Kennedy. [ILB emphasis]

But they and others -- notably Chief Justice John Roberts -- indicated the congressional law intended to give victims time to sue may not overcome North Carolina's statute of repose. Only four states have those statutes.

"The purpose of the statute of repose is not to preserve latent causes of action," Roberts said. "It's quite the opposite. It's to put an end to, in particular, latent causes of action that haven't been brought."

John Korzen, director of the Appellate Advocacy Clinic at Wake Forest University School of Law, which brought the original appeal, said that's not what Congress wanted to do.

"Congress's purpose was to preserve claims, no matter what the period was," Korzen said. "Congress was concerned about people not having their day in court."

At least two justices -- Ruth Bader Ginsburg and Elena Kagan -- appeared to side with the victims. Ginsburg expressed concern that if the court denies them a course of action, other states may pass statutes similar to North Carolina's to protect companies from successful claims.

"There was never a time when these plaintiffs had an action that could be brought," Ginsburg said, because they didn't discover the contamination until the 10-year statute had run out.

When Brian Murray, the lawyer for CTS Corp., said Congress in 1986 specifically sought to help victims avoid statutes of limitations but not statutes of repose, Kagan said, "That's a very legally sophisticated Congress you're asking us to imagine."

Michael Doyle of McClatchy Washington Bureau also has a good story, that begins:
WASHINGTON — Raw emotions bubbled just below the surface Wednesday as the Supreme Court considered a crucial North Carolina groundwater pollution case.

For experts, the case called CTS Corp. v. Waldburger centers on the relationship between state and federal laws and the ticking of the courthouse clock. Simply put, it’s about how long people have to sue polluters when they’ve been harmed. Being the law, though, it’s rarely that simple.

“This is angels on the head of a pin, isn’t it?” Justice Antonin Scalia asked Wednesday, after one abstract exchange in an argument that periodically seemed to favor CTS.

More from the story:
The ensuing litigation crashes into a North Carolina “statute of repose,” which requires that certain lawsuits be filed within 10 years of the last allegedly harmful act. This is supposed to protect corporations or other property owners from an endless threat of litigation.

“The statute of repose is intended to provide certainty at the back end to a defendant so it can order its affairs, have insurance policies that make sense,” Joseph R. Palmore, assistant to the solicitor general, told the justices Wednesday.

Brian J. Murray, the Chicago-based attorney for CTS Corp., added Wednesday that the time limits help “avoid vexatious litigation designed to shake down settlements 40, 50 and 60 years after you’ve abandoned a site.”

The time limits pushed by CTS Corp. and the Obama administration seemed to appeal to Chief Justice John Roberts Jr. in particular. All eight of his questions Wednesday were aimed at the other side, which is often a reliable sign of which way a justice is leaning.

The time limits imposed in North Carolina and a few other states also mean, though, that the 10-year limit may slam the courthouse doors shut before an individual even discovers he’s been exposed. This happened at Camp Lejeune and at the former CTS Corp. site.

The legal question pressed Wednesday was whether Congress, through [CERCLA], pre-empted the state’s 10-year limit. A provision of the federal environmental law starts the hazardous-waste litigation clock ticking only after someone discovers harm, rather than the longer-ago moment that the harmful acts ended.

“Congress was concerned about people not having their day in court,” John J. Korzen, the director of the Appellate Advocacy Clinic at Wake Forest University School of Law, told the justices Wednesday, adding that “Congress wanted polluters to be on the hook as long as it took to clean up.”

Posted by Marcia Oddi on April 24, 2014 10:30 AM
Posted to Environment