Opinion analysis: Court’s narrow reading of Superfund’s preemption provision leaves victims of toxic exposure without legal recourse
on Jun 10, 2014 at 1:11 pm
Yesterday in CTS Corp. v. Waldburger, the Court ruled – by a vote of seven to two –that the provision of the federal Superfund law (the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA) that tolls state statutes of limitations until after victims of toxic exposure have discovered their harm, 42 U.S.C. § 9658, does not apply to state statutes of repose. Statutes of repose set deadlines on the filing of litigation that do not turn on when harm is first discovered. The decision rested on the majority’s interpretation of the statutory language of CERCLA, which refers only to “statutes of limitations” and not “statutes of repose.” Even though two of the Justices in the majority admitted at oral argument that they were not aware until recently of any distinction between the two, the majority concluded that Congress had been aware of the distinction when it amended CERCLA in 1986. Justice Ginsburg and Justice Breyer dissented, finding that Congress had implicitly preempted statutes of repose because they interfere with the congressional purpose of preserving legal recourse for victims of toxic exposures that cause harm with long latency periods.
The decision reverses a Fourth Circuit judgment that had reinstated a lawsuit by a group of North Carolina homeowners who discovered that their well water was contaminated by toxic chemicals decades after an industrial facility owned by CTS Corporation had ceased operations. Because North Carolina has a statute of repose that bars lawsuits from being filed more than ten years after the defendant’s last action, the trial court had dismissed the lawsuit. As a result of the Supreme Court’s decision, the homeowners’ lawsuit once again will be dismissed.
The Court majority conceded that Section 9658 is ambiguous because the term “statutes of limitations” often has been used to “refer to any provision restricting the time in which a plaintiff must bring suit.” But the Court found it significant that the study group Congress had commissioned to address barriers to plaintiffs recovering for toxic exposures had expressly distinguished between statutes of limitations and statutes of repose. But, as the dissenting Justices pointed out, the study group’s recommendation was that states eliminate both to provide recourse to victims of latent harm from toxic exposures. According to the dissenters, Congress enacted Section 9658 to preempt both and accomplish the same end the study group had recommended. The majority rejected the notion that statutes of repose are preempted because they interfere with this congressional purpose, noting that Congress did not purport to interfere with other, more basic aspects of state tort law.
Echoes of continuing splits over how to interpret preemptive provisions in federal law are heard when four members of the majority refused to join Part II-D of Justice Kennedy’s opinion. In that section of his opinion, Justice Kennedy declared that when express preemption provisions are capable of more than one plausible interpretation, courts should accept the interpretation that disfavors preemption, particularly when Congress legislates in a field traditionally reserved to states. Only Justices Sotomayor and Kagan joined this part of Kennedy’s opinion. Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito, wrote separately to reject the notion “that express preemption provisions must be construed narrowly.” This dispute echoes the Court’s continuing bitter split over preemption of state products liability suits against the pharmaceutical industry. The four concurring Justices are the same four who disagreed with the Court’s decision in Wyeth v. Levine refusing to let the Bush administration’s Food and Drug Administration preempt failure-to-warn product liability lawsuits against the manufacturers of a prescription drug. Justice Kennedy has been the decisive vote not only in Wyeth, but also in two subsequent five-to-four decisions holding that such lawsuits are preempted when brought against manufacturers of chemically identical generic drugs, a result that even Justices who supported this outcome agree “makes little sense.”
The case’s impact should be limited by the fact that only a handful of other states currently have statutes of repose. In these states, victims of exposure to toxics that cause harm with long latency periods will not be able to sue those responsible for their injuries because they are unlikely to discover their harm until after the statute of repose has run. The federal government, which supported CTS in seeking dismissal of the lawsuit, is now likely to avoid liability for allegedly exposing marines and their families to contaminated drinking water at Camp Lejeune, North Carolina.
The decision continues a trend in which the Court has interpreted CERCLA far more narrowly than the lower courts, which frequently have emphasized the broad, remedial purposes of the statute. The majority almost dismissively notes that “almost every statute might be described as remedial in the sense that all statutes are designed to remedy some problem.” Environmentalists may take some small consolation in the fact that Justice Breyer joined Justice Ginsburg in dissent. Five years ago when the Court last interpreted CERCLA narrowly, Justice Ginsburg was the lone dissenter.
