Source: http://www.sanluisobispo.com, June 9, 2014
By: Michael Doyle
The Supreme Court on Monday dealt a blow to North Carolina families trying to sue over groundwater contamination at a big Marine Corps base.
In a technical decision with real-world consequences, the court upheld North Carolina’s limits on how long people have to bring certain pollution-related lawsuits. By upholding the state’s 10-year limit, called a statute of repose, the court effectively undercut lawsuits centering on Camp Lejeune.
“Time is the controlling factor,” Justice Anthony Kennedy declared.
The immediate case decided Monday involved the CTS Corp., and not the Camp Lejeune groundwater contamination. The separate Camp Lejeune cases, though, will be affected by the ruling in the CTS case.
That’s because the North Carolina law starts a 10-year clock running from the last culpable act of the defendant; for instance, from when a company stops polluting or sells its property. After the clock runs out, lawsuits alleging injury from the contamination are banned.
The state’s 10-year statute of repose is a stricter standard, and potentially friendlier to polluters, than a federal law that starts a two-year lawsuit clock running only after people discover they have been harmed. Often, Kennedy acknowledged, “a person who is exposed to a toxic contaminant may not develop or show signs of resulting injury for many years.”
But though it was not closely divided, the court’s 7-2 majority decision also drew a sharp retort from dissenting justices Ruth Bader Ginsburg and Stephen Breyer.
“Instead of encouraging prompt identification and remediation 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 full course,” Ginsburg wrote.
CTS owned an electronics manufacturing facility in Asheville, N.C., until 1987. The land was subsequently sold and developed as a residential subdivision. Long after CTS sold the land, residents began learning in 2009 that their well water contained carcinogenic chemicals, including trichloroethylene.
Trichloroethylene was also one of the chemicals also found in Camp Lejeune water.
The residents’ lawsuit over the former CTS Corp. land was filed in 2011, 24 years after the company sold the property. An appellate court said the suit could nonetheless proceed, on the grounds that the federal statute of limitations pegged to discovery of injury preempted the state’s statute of repose pegged to the sale of the land.
The excruciating question facing the Supreme Court was whether North Carolina’s statute of repose was different than the statute of limitations established in the 1980 federal Superfund law. The court’s majority decided it was, and so was not preempted by the federal limit.
“Each has a distinct purpose,” Kennedy reasoned, adding that “a statute of repose can be said to provide a fresh start or freedom from liability.”
Timothy Bishop, an appellate attorney who has represented corporate clients with the firm Mayer Brown, praised the court’s decision, saying it “provides certainty for businesses and landowners who otherwise might face suit indefinitely.”
John Korzen, director of the appellate advocacy project at the Wake Forest University School of Law and attorney for the residents challenging CTS, said Monday he was “disappointed, for sure” in the court’s decision. At the same time, Korzen said several other issues may distinguish the CTS case from the still-pending Camp Lejeune cases.
The latest study, released earlier this year, found Marine Corps and Navy personnel stationed at Camp Lejeune between 1975 and 1985 had higher cancer rates than their counterparts at Camp Pendleton in California, where the groundwater was not contaminated.
The water pollution at Camp Lejeune, though not directly at issue in the case decided Monday, was not discovered for more than a decade after the Marine Corps’ polluting actions stopped. The Obama administration has been fighting the Lejeune families’ lawsuits, saying legal action was blocked by North Carolina’s statute of repose.
“This does certainly apply to the Camp Lejeune cases,” Chapel Hill, N.C.-based attorney Narendra K. Ghosh, who has aided the families, said in an interview Monday, “and it’s certainly a setback to those cases, but it’s not determinative.”
The administration’s resistance has prompted anger among veterans and survivors, some of whom rallied at the Supreme Court before justices heard oral argument in the CTS Corp. case in April.
“This is a sad day,” retired Marine Corps Master Sgt. Jerry Ensminger said before the argument. “Basically, what the Department of Justice is trying to do here is take away the very rights that we fought for.”
An Elizabethtown, N.C., resident, Ensminger served multiple stints at Camp Lejeune. His daughter Janey was subsequently diagnosed with leukemia when she was 6; she died when she was 9, in 1985.
The Camp Lejeune lawsuits filed by Ensminger and others are before the U.S. Court of Appeals for the 11th Circuit, where judges will now be guided by the Supreme Court’s decision Monday.
Ghosh, who helped file an amicus brief for Ensminger, said the appellate court could still decide that the state’s statute of repose does not cover a case involving a “latent disease” that takes a long time to manifest.