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Supreme Court Rules Against Tort Plaintiffs, Holding Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Does Not Preserve Property Contamination Claims Barred by State Statutes of Repose

The U.S. Supreme Court has put to rest a longstanding legal question affecting the deadline for plaintiffs to bring toxic tort and contamination claims stemming from contaminated sites.  CTS Corp. v. Waldburger, 2014 U.S. LEXIS 3992 (June 9, 2014).  Specifically, the Court considered whether Section 309 of the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as the Superfund law or CERCLA), which preempts a state “statute of limitations,” also preempts a state statute of repose.  In a 7-2 decision, the Court held it does not, reversing a Fourth Circuit ruling and resolving a split in the lower courts.

The Waldburger decision provides an additional tool for companies defending personal injury and property value damage claims based on long-ago events.  Counsel for all parties should look to state statutes of repose that may provide an absolute bar to liability, regardless of when the plaintiff alleges discovery of injury and its cause.  The opinion also fuels ongoing controversies regarding preemption doctrine generally, with a four-Justice concurrence arguing against any “presumption against preemption,” a frequently cited proposition by groups seeking to exact more stringent requirements than prescribed under federal law.

Background

Congress passed CERCLA in 1980 to ensure the timely cleanup of hazardous waste sites by parties responsible for the pollution.  State law, however, generally governs private claims for property damage or personal injury caused by contamination.  State law, which is not uniform, may provide for a short statute of limitations that is not tolled until the plaintiff identifies the alleged cause of injury.  Section 309 of CERCLA (added in the 1986 SARA amendments) superimposes an automatic discovery rule (called the “federally required commencement date”) that trumps any conflicting state statute of limitation for “any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility.”  42 U.S.C. § 9658.  Under the federally required commencement date, the state cause of action accrues, and the state statute of limitations begins to run, when the plaintiff “knew (or reasonably should have known)” that the personal injury or property damage was caused by pollution.

Section 309 of CERCLA, however, only mentions “statutes of limitations.”  It nowhere mentions statutes of repose.  Unlike statutes of limitation, statutes of repose impose an absolute temporal limit on a party’s potential liability; whether the injury was discovered is irrelevant.

Supreme Court Opinion and Implications

The Supreme Court took jurisdiction to resolve a split in the Courts of Appeal on this distinction.  In supporting certiorari, the United States also argued that statutes of repose survive CERCLA.

Waldburger leaves no doubt regarding the distinction between state statutes of limitation and repose going forward.  Justice Kennedy reasoned that Congress only intended to supersede state authority where it clearly did so.  The Court then found that that the text Congress enacted did not mention statutes of repose, while the legislative history suggested that term was deliberately excluded.  While there is considerable overlap between statutes of limitation and repose, their purposes and operation are distinct.  The Court held that “[t]he result of respondents interpretation would be that statutes of repose would cease to serve any real function.”  Because CTS’s last act occurred in 1987 when it sold its still-contaminated electronics plant, and North Carolina has an applicable 10-year statute of repose, the plaintiffs’ state-law tort claim filed in 2011 was untimely.

The practical consequences of Waldburger may be limited as only a handful of states currently have relevant statutes of repose.  The opinion does underscore that CERCLA, like other federal statutes, should be interpreted through a close focus on the text; the Court implicitly rejected the view of the Fourth Circuit (and many courts over the years interpreting CERCLA) that the statute’s remedial purpose requires a “liberal interpretation.”  Importantly for the preemption debates that are a staple of Supreme Court jurisprudence, the Court’s four leading conservatives joined in a separate concurrence to disavow any presumption against preemption.

© 2020 Beveridge & Diamond PC National Law Review, Volume IV, Number 181

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About this Author

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC
Principal

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits...

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Harold L. Segall Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Hal Segall has a proven and winning trial and appellate litigation record, with 35 years of experience in federal and state courts throughout the U.S.

His practice encompasses environmental claims, mass tort litigation, and related commercial and real estate cases.

While Hal focuses primarily on litigation, he also applies his litigation background to negotiating protective contractual provisions in transactions involving environmental matters, and to resolving associated regulatory issues.

Hal is active in the community, both as a lawyer and volunteer. He has served for more than 15 years as Co-Chair of the firm’s Pro Bono Committee—a period in which the firm has received numerous awards for its pro bono work. He also serves as pro bono General Counsel of the Environmental Law Institute in Washington, DC. His pro bono litigation matters have involved employment discrimination, housing discrimination, HIV/AIDS, and special education. He currently serves as Co-President of Adat Shalom Reconstructionist Congregation, in Bethesda, MD. He is married with two daughters and competes in Olympic distance triathlons.

Hal served multiple terms as Chair of the firm’s Litigation group and member of its Management Committee, which oversees all firm management and compensation matters.

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James B. Slaughter Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Jimmy Slaughter has a national practice in environmental, toxic tort, and constitutional litigation.

Named a Runner-Up for American Lawyer’s Litigator of the Week three times in 2019 and 2020, Jimmy’s recent accomplishments include securing preemption of a major city’s air ordinance, defeating at hearing a $5 million enforcement order, and winning a complete dismissal of a putative nuisance class action against a landfill. Jimmy also recently scored a rare equitable estoppel ruling against a major local government, allowing his client to challenge numerous provisions of a...

202-789-6040