Remedying Toxic Exposures: Will CERCLA Continue to Help?

On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, --- U.S. ---, --- S. Ct. ---, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund), 42 U.S.C. §§ 9601-9675, preempts state statues of repose. Behind that legal question, however, lies the issue of whether the plaintiffs landowners do or should have a state-law remedy for the fact that CTS Corporation contaminated their properties with toxic chemicals as part of its electronics business between 1959 and 1985.

CTS sold the property in 1987, and the plaintiffs brought suit in 2011, alleging a state-law nuisance claim. North Carolina, the state where the properties are located and where the suit was filed, has a 10-year statute of repose. CTS argued that the statute of repose barred the plaintiffs’ nuisance claims, and the U.S. Supreme Court, in what is basically a 7-2 decision with the majority opinion authored by Justice Kennedy, agreed.

CERCLA essentially allows for two parallel liability schemes when hazardous substances are released into the environment. Under CERCLA itself, four categories of “potentially responsible parties,” or PRPs, can be held responsible under federal law for the costs of cleaning up the contaminated property and resources, natural resources damages, and any necessary public health assessments. CERCLA does not provide, however, for private damages resulting from property contamination or personal injury or health effects resulting from exposure to the hazardous substances. Instead, for these claims, CERCLA explicitly preserves state-law causes of action. Moreover, in 1986—recognizing that it sometimes takes many years for private plaintiffs to discover the source of these private damages—Congress amended CERCLA to impose a federal discovery rule on state statutes of limitation.  Thus, § 9658 of the Act now provides that:

In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute.

42 U.S.C. § 9658(a)(1). The “federally required commencement date” is “the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages referred to in subsection (a)(1) of this section were caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” Id. § 9658(b)(4)(A).

Waldburger thus teed up a classic case for statutory interpretation of environmental laws for the U.S. Supreme Court: Does the plain language of § 9658, which refers only to “statutes of limitation,” control, or should the Court more broadly enforce Congress’s purposes in enacting the provision, which were to level the playing field across states for private citizens harmed by the wanton disposal of hazardous substances? The Supreme Court majority opted for a plain meaning approach, emphasizing that statutes of limitation and statutes of repose serve different functions and that § 9658 mentions only “statutes of limitation.” It also rejected the Court of Appeals’ logic that CERCLA is a remedial statute that should be construed broadly, concluding that the remedial purpose principle could not overcome the statute’s plain meaning. Justice Ginsburg in dissent, joined by Justice Breyer, took the opposite approach, arguing that statutes of limitation and statutes of repose—particularly with respect to the North Carolina statute at issue—are not so different, and Congress’s purpose in enacting § 9658 could be accomplished only if federal law preempted both.

Thus, Waldburger is in this respect a typical environmental law statutory interpretation case for the Rehnquist and Roberts Courts, posing a choice of interpretive methodologies to the Justices. Moreover, as is increasingly common in these cases, the plain meaning approach won.

Nevertheless, four points about Waldburger are still worth making. First, nothing in the decision affects the applicability of CERCLA’s federal-law cleanup requirements, under which CTS Corporation is almost certainly a PRP. While CERCLA’s cleanup and restoration requirements do not address personal injury and the interim costs of, for example, replacing contaminated well water, the plaintiffs can still achieve their other goal of remediation.

Second, courts are often more generous in interpreting CERCLA because they acknowledge that it was drafted virtually overnight. However, that leeway did not apply—and should not have applied—to the interpretation of § 9658, which Congress deliberately added six years after CERCLA’s original enactment.

Third, it should never be forgotten that CERCLA is a rare softening of the often extremely harsh state law of toxic torts. Tort law and its attendant and typically short statutes of limitation and repose have always constituted an uncomfortable and difficult remedy for plaintiffs exposed to and injured by toxic and hazardous substances. These difficulties range from as-yet-unproven-causation problems to long latency periods to population-level statistical harms that are nevertheless difficult to pin to any particular person. A complicated and varying set of doctrines have developed over time in some states to try to aid plaintiffs in seeking deserved compensation, but anyone who knows toxic tort law will admit that the field has far to go—for both plaintiffs and defendants—in achieving “justice.” The Supreme Court’s decision in Waldburger throws one aspect of CERCLA-related toxic tort claims—application of statutes of repose—back on the mercy of state law, but CERCLA nevertheless still opens tort law to a wide variety of plaintiffs whose claims would otherwise be cut off by state statutes of limitation.

Finally, it remains to be seen how Congress and states respond to Waldburger. One of the more interesting aspects of the Waldburger decision for Congress was the Justices’ split on federal preemption presumptions. Justices Kennedy, Kagan, and Sotomayor concluded that the Court’s traditional presumption against preemption of state law should apply even to express preemption provisions, with the result that Congress’s express preemption language should be interpreted narrowly. Justices Scalia, Thomas, and Alito and Chief Justice Roberts concurred, however, to argue specifically that express preemption provisions in federal law should be given their ordinary, plain-language meaning, with the result that Congress could write very broad preemption provisions in general language. Presumably, the dissenting Justices would agree with Justice Scalia with regard to CERCLA, presenting Congress with a clear message that it could easily broaden the scope of § 9658’s preemption of state law.

In the absence of congressional amendment, however, the applicability of CERCLA’s discovery rule is now in the hands of state legislatures. And, as is true in toxic torts law more generally, the states may take very different paths in the wake of Waldburger. States with more liberal approaches to toxic tort law, like California and New York, and states that already have adopted their own versions of discovery rules for toxic torts may ensure that their statutes of repose (if they exist at all) pose no barriers to CERCLA-related private tort actions. Alternatively, states with more narrow or conservative approaches to toxic torts, or states with new political dynamics that are antithetical to tort litigation, may seize on the opportunity that Waldburger offers to enact new and more limited statutes of repose. In either case, defendants in CERCLA-related tort actions now have a significant incentive to identify state statutes of repose—which, as the Waldburger dissenters suggested, is not always as easy as one would think. State courts may find that particular states have more—or fewer—statutes of repose than the relevant legislatures might have supposed, which again might inspire state tort “reform.”

In other words, the next few years could be an interesting time for state tort law—and the politics of state tort law. As a result, the true impact of Waldburger may take several more years to develop.