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Tuesday, June 10, 2014

Environment - More on "No preemption for state statutes of repose"

Updating this ILB post from yesterday on the SCOTUS decision in CTS Corp. v. Waldburger, Jeremy P. Jacobs, E&E News, has good coverage titled "Supreme Court rules for industry in fight over contaminated groundwater." Some quotes:

The Supreme Court today ruled against a group of North Carolina landowners in their quest to force a local polluter to clean up groundwater contamination, saying they took too long to file their case.

In a 7-2 decision, the justices reversed a federal appeals court ruling that said the Asheville residents' case against CTS Corp. could go forward.

The case hinged on the difference between two state legal provisions and whether the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA, which created U.S. EPA's Superfund program, pre-empts them both.

In an effort to protect those injured by contamination causing latent illnesses like cancer, CERCLA overrules state statutes of limitation, which set a time limit for filing a lawsuit beginning when the injured party discovers the offense.

At issue in CTS Corp. v. Waldburger was whether the same language also pre-empts state statutes of repose, which say an individual only has a certain amount of time to file from when the defendant in the case last acted. North Carolina's statute of repose is 10 years.

In a 17-page opinion, Justice Anthony Kennedy wrote that it does not, largely because CERCLA did not expressly use the term "statute of repose." * * *

CTS, of Elkhart, Ind., operated an electronic components factory in southern Asheville from 1959 to 1986. Part of its manufacturing process included trichloroethylene, or TCE, a common industrial solvent and human carcinogen. * * *

CTS sought to dismiss the case using the statute of repose, claiming its last "act" was selling the property in 1987. A lower court agreed, but the Richmond, Va.-based 4th U.S. Circuit Court of Appeals reversed that ruling, calling for a more liberal reading of "statutes of limitations" that would include statutes of repose. * * *

The ruling has a limited reach because only four states -- North Carolina, Oregon, Kansas and Connecticut -- have statutes of repose.

However, the case did garner the attention of the Obama administration, which intervened on behalf of CTS. The administration's "substantial interest" in the case is similar litigation surrounding groundwater contamination at Marine Corps Base Camp Lejeune.

Thousands of Marines and their families used water at the Jacksonville, N.C., base laced with toxic chemicals from 1957 to 1987. Some experts consider it the largest water contamination event in U.S. history and there have been a significant number of male breast cancer cases, as well as childhood leukemia diagnoses among veterans and their families who spent time at the base.

About a dozen lawsuits have been filed against the Department of Defense seeking damages from the contamination.

Those cases have been put on hold, but today's ruling may help the government seek a dismissal using North Carolina's statute of repose.

Justice Ruth Bader Ginsburg dissented, writing that CERCLA was intended to protect landowners from long-standing environmental harm.

There is much more in the story.

The ILB recalls this April 24, 2014 post, including this quote from a story in USA Today:

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.

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.

Also, the ILB is surprised to read that only four states, North Carolina, Oregon, Kansas and Connecticut, have statutes of repose ...

See also this $$$ story form the WSJ.

Posted by Marcia Oddi on June 10, 2014 08:55 AM
Posted to Environment