Source: http://www.thetimesherald.com, June 9, 2014
By: Richard Wolf, USA Today
Victims of contaminated water that wasn’t discovered for decades lost their effort to sue polluters at the Supreme Court on Monday in a case that could set back thousands of former Marines and their families with similar claims.
The justices ruled 7-2 that North Carolina’s law requiring lawsuits to be brought within 10 years of the contamination is not superseded by a federal law designed to give victims a two-year opportunity to file claims after the pollution comes to light. At least four states have similar laws.
That could spell trouble not only for the Asheville, N.C., property owners seeking to recover damages from an electronics company for contamination that occurred at least 30 years ago, but for veterans who have fought for years to win damages from the Navy for deaths and illnesses caused by toxic drinking water at Camp Lejeune.
The case was notable because the Obama administration opposed the residents’ claims, even after President Obama signed a law in 2012 that provided health benefits to Camp Lejeune veterans and family members. The law was named after Janey Ensminger, who died in 1985 at age 9 of a rare form of leukemia.
Her Marine veteran father, Jerome Ensminger, who has led a lengthy battle on behalf of veterans and families from Camp Lejeune, criticized the government after the ruling was announced.
“I certainly don’t want to hear anything from the Obama administration nor the Democratic Party about their being champions of the environment,” Ensminger said. “They are only champions of the environment when the conditions are favorable to their needs.”
The ruling came from Justice Anthony Kennedy, who was joined by the court’s other conservatives as well as Justices Sonia Sotomayor and Elena Kagan. Dissenting were Justices Ruth Bader Ginsburg and Stephen Breyer.
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 statute of repose can prohibit a cause of action from coming into existence,” Kennedy said. As a result, he acknowledged, it can protect polluters from liability “before a plaintiff is entitled to sue, before an actionable harm ever occurs.”
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 Corp. 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.
Only Ginsburg and Breyer agreed that the federal law supersedes the limits imposed by North Carolina as well as Connecticut, Kansas and Oregon. Alabama has a related provision.
“The court allows those responsible for environmental contamination … to escape liability for the devastating harm they cause, harm hidden from detection for more than 10 years,” Ginsburg wrote.
In the Waldburger case, a federal appeals court had 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 they learned their water could cause liver and kidney damage, heart ailments and cancer.
Last Friday, the federal Environmental Protection Agency advised 13 landowners to move because of contaminated indoor air vapor linked to the water problem. The agency is working with a CTS contractor to investigate and clean up the site.
John Korzen, director of the Appellate Advocacy Clinic at Wake Forest University School of Law, which brought the original appeal, said during oral arguments in April that Congress “was concerned about people not having their day in court.”
“We hope Congress fixes the problem the court’s decision causes,” Korzen said Monday.
Tate MacQueen, a leader among the aggrieved homeowners, called the court’s ruling “very cold” and vowed to sue the EPA. He said the decision could encourage corporations to lobby other states to impose similar statutes of repose.
“They’ve created environmental refugees in our community,” MacQueen said. “This is something that’s going to be a threat all over the country.”
In the Camp Lejeune case, the last wells contaminated with industrial solvents such as trichloroethylene (TCE), benzene and other chemicals 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.
In recent years, health and environmental studies have classified TCE as a human carcinogen and linked it to kidney cancer, non-Hodgkin’s lymphoma, childhood cancers and other defects. Babies exposed during pregnancy have been found to be at greater risk of developing cancers or birth defects later in childhood.
Thirteen Camp Lejeune claims are combined in a case pending before the 11th Circuit federal appeals court in Georgia. The government opposes those on the same grounds – that the time for claims to be filed has expired. The case was argued in January but has been on hold, pending the Supreme Court’s ruling in the North Carolina case.