Source: http://www.eenews.net, July 10, 2014
By: Jeremy P. Jacobs
A trend has emerged at the Supreme Court that could establish important precedents for environmental litigation: a concern among the justices about lawsuits filed beyond legal deadlines.
Last term, the court struck down claims from North Carolina landowners seeking damages for groundwater contamination because their lawsuit was filed outside the state’s 10-year limit for legal action.
And next term, the court has agreed to hear at least three cases centering on various deadlines for litigation: a financial class-action case, a wrongful-death suit, and a challenge to the U.S. incarceration and deportation of a Hong Kong national.
While the facts of those cases are not environmental, court watchers said the precedents they may set could make it harder for plaintiffs to seek damages for environmental injuries that have long latency periods — such as diseases like cancer.
“These concepts are classic and systemic of environmental tort cases,” Vermont Law School professor Pat Parenteau said. “How long did it take to find out that Hooker [Chemical] buried chemicals in Love Canal and then they built a housing development on it?”
Of course, it remains to be seen how the court will rule on the cases next term. But the focus appears to be rooted in a conservative judicial philosophy that puts strict limits on the eligibility of cases for judicial review.
Justin Pidot, a former Department of Justice attorney who now teaches environmental issues at the University of Denver Sturm College of Law, said that the court’s focus on the issue hints at its pro-business leanings.
“It strikes me as part of the court’s business orientation right now,” he said. “Creating certainty for the business community regarding liability is something the business community really wants.”
With the exception of the securities case, the other cases on the docket are relatively low-profile disputes against federal agencies that likely won’t garner much attention.
But their impact shouldn’t be overlooked, Pidot added.
The cases are a “way of accomplishing some of the ideological goals of the conservative majority without looking too ideological,” he said.
And if the court upholds strict time limits, those rulings “inevitably benefit well-heeled defendants and disadvantage the little guy.”
That would be the practical effect if the court sides with the now-defunct IndyMac Bancorp Inc. in a class-action challenge stemming from its collapse in 2008.
The case, to be argued next term, bears similarities to the groundwater case decided last month.
There, the court held that the claims of two dozen landowners against CTS Corp. for polluting their groundwater at its former electroplating plant couldn’t go to trial because they were filed beyond North Carolina’s 10-year statute of repose, which bars litigation a decade after the defendant last acted. CTS sold the property in 1987, but the landowners claimed they didn’t know about the contamination until years later (Greenwire, June 9).
Next term’s case focuses on whether class action against the underwriters of securities issued by an IndyMac subsidiary are similarly barred by a three-year statute of repose in a federal securities law.
The case was originally brought by various retirement funds claiming IndyMac made false claims regarding the mortgage-backed securities before the massive collapse of the home loan market in 2008. A federal judge dismissed the case in 2010, but some of the plaintiffs, including the public retirement system of Mississippi, later sought to reopen it.
The issue is whether their claims, based on securities sold in 2005, 2006 and 2007, are also time limited by the three-year statute of repose that says no lawsuit may be brought after three years from when the security was sold, or whether a class-action lawsuit suspends that clock.
Court watchers have suggested that the ruling in the CTS case bodes well for IndyMac because it shows the justices are receptive to firm deadlines that end a private entity’s liability.
The court’s focus on time limits may also protect the government from lawsuits.
Before adjourning for summer recess, the court granted two cases involving claims brought against federal agencies. Both United States v. June and United States v. Wong raise questions about whether there are circumstances in which an injured party has an extended deadline to seek damages under the Federal Tort Claims Act.
Injured parties file lawsuits under that law against a variety of agencies, including the Department of the Interior and Department of Defense, for various reasons, including environmental damage.
The law, however, mandates that claims must first be filed to the relevant agency within two years. Then, the plaintiff has six months to sue from when that request is rejected by the agency.
In June, the family of a young man killed in an Arizona highway accident in February 2005 filed a wrongful-death suit against the Federal Highway Administration. They claim that a median that would have prevented the car from drifting into oncoming traffic was improperly installed and maintained.
They didn’t file their lawsuit until December 2010, after, they claim, the government refused to make relevant information about the median available from 2007 to 2009.
Similarly, in Wong, a religious leader from Hong Kong filed claims against Immigration and Naturalization Services for the conditions of her detainment at a Portland, Ore., detention center and eventual deportation in June 1999.
She sought to meet the filing deadlines of the tort claims act but, because of what appears to be a court delay, missed the six-month window.
In both cases, the San Francisco-based 9th U.S. Circuit Court of Appeals held that the deadline could be subject to “equitable tolling,” meaning extended because of circumstances that were unfair or unknown to the plaintiffs.
Parenteau said equitable tolling is pivotal to environmental tort cases.
“A latency period is really front and center on this issue,” he said. “Disease doesn’t manifest for decades.”
New limits on equitable tolling would curtail environmental cases, said Daniel Farber, an environmental law professor at the University of California, Berkeley, Law School.
“They really are just looking for ways to cut back on litigation,” he said. “Part of it may be that these cases have become … harder for them to accommodate equitable exceptions.”
He added that if the statute at issue “doesn’t say you can do equitable tolling, that’s it.”
Parenteau noted that limitations like those in these cases have historically led to new environmental laws to address such shortcomings.
Following the CTS ruling, for example, the North Carolina state Legislature quickly passed legislation carving out an exemption to the state’s statute of repose for groundwater pollution (Greenwire, June 17). Similar bills have also been introduced in Congress (E&ENews PM, June 27).
Parenteau said that with a divided Congress, sweeping legislation looks unlikely.
But it was environmental tort cases, he said, that led to major environmental laws like the Clean Air Act and Clean Water Act.
“It took that impetus to shock the system,” he said, “and come at this with more preventive measures.”