A Supreme Court Victory for Polluters

Before heading off for its summer recess, the Supreme Court decided to send private industry a gift with a 7-2 ruling in CTS v. Waldburger, in which 23 residents of Asheville, North Carolina, sued an electronics manufacturer, CTS Corporation, for tainting their water with the carcinogenic solvent trichloroethylene (TCE). The justices said the suit had been brought too late, based on their reading of a North Carolina law that they ruled overrides federal law on the matter.

"A complete miscarriage of justice," is how the ruling was described to me by Richard Frandsen, who served as chief environmental counsel for the House Energy and Commerce Committee.

At the heart of the case was the question of how long victims of toxic exposure have to sue those who they believe have caused their illness. The federal Superfund law, passed in 1980 and amended in 1986, gives plaintiffs wide latitude to bring legal claims once they've discovered that a polluter has made them ill. A three-year statute of limitations only begins once that discovery has been made, the 1986 Superfund amendment says. But North Carolina has its own "statute of repose," which gives a window of 10 years after the last culpable act. Three other states have such laws, though others seeking to escape environmental regulations may now seek to pass them.

CTS dumped chemicals on 54 acres of property from 1959 to 1985; the danger of TCE was not nearly as well known then as it is now. Today, the industrial solvent is rarely used, and it was classified as a carcinogen by the Environmental Protection Agency in 2011. But by that time, people had been living on the CTS property for more than a decade. According to the Asheville Citizen-Times, "Residents near the CTS plant on Mills Gap Road first noticed the pollution in 1999, 13 years after the plant closed and 12 years after CTS sold the property." That would eliminate the possibility of any legal claim under North Carolina law.

Last year, the U.S. Court of Appeals for the Fourth Circuit ruled in favor of the plaintiffs, effectively reasserting the weight of the Superfund statute of limitations over that of North Carolina's far more restrictive statute of repose. The victory also has ramifications in coastal North Carolina, where Camp Lejeune sits. The largest Marine base east of the Mississippi River, Lejeune may have exposed as many as a million people to water tainted with trichloroethylene, the dry cleaning solvent perchlorothylene and the gasoline component benzene. Several hundred former Lejeune residents have filed claims against the Department of Defense, though the tainted wells were shuttered in the late 1980s. The Fourth Circuit appeared to strongly boost their claims.

The Supreme Court has dashed the hopes of litigants in both Asheville and at Camp Lejeune, while providing succor to polluters in North Carolina and elsewhere. Associate Justice Anthony M. Kennedy wrote for the majority that the plaintiffs failed to show that "statutes of repose pose an unacceptable obstacle to the attainment of [Superfund's] purposes."

Frandsen, the veteran Capitol Hill environmental lawyer, says the 1986 amendments to the Superfund law were intended by Congress to make sure that the length of time it may take to discover the connection between an instance of pollution and the onset of illness did not end up working against victims. A statute of limitations doesn't take effect until a victim has the chance to make a reasonable connection between past pollution and present illness. Recourse to the statute of repose "completely undermines congressional intent," Frandsen explains, by making no allowance for the long latency of illness, not to mention the challenges of large scale epidemiology.

"There's not gonna be a day in court for these people," he says, referring to both Asheville and Camp Lejeune.

"Today the U.S. Supreme Court has effectively turned the environmental clock back to the 19th century and the days of robber barons and the Wild West," says Mike Partain, one of the advocates behind the push to have the federal government recognize the full scope of the Camp Lejeune contamination. "Now corporate America and our own government have been enabled by our highest court to completely disregard the public health for benefit of the almighty dollar."

Partain was born on Camp Lejeune and suffered from breast cancer as an adult. He and other victims are furious that while President Obama has signed legislation deeming those suffering from a host of ailments to be eligible for healthcare from the Department of Veterans Affairs, his Department of Justice filed a brief in favor of CTS in the Waldburger case, suggesting that the administration was eager to have it both ways.

In her dissent, Associate Justice Ruth Bader Ginsburg (joined only by Associate Justice Stephen G. Breyer) wrote, "Instead of encouraging prompt identification and remediation of toxic contamination before it can kill, the Court's decision gives contaminators an incentive to conceal the hazards they have created until the repose period has run its course."

In cruel coincidence, the ruling came just days after the EPA told 13 people who live near the CTS site to move because TCE vapors were detected in their homes.

The Asheville plaintiffs were stunned by the ruling. "With everything else going on right now," one woman told the Citizen-Times, "this is just another slap in the face."