By Robert Percival
on April 28, 2021
at 11:11 a.m.
Monday’s argument against the United States in Guam contained widely divergent interpretations of the contribution provisions of the Comprehensive Environmental Impact, Compensation and Liability Act, also known as CERCLA or the Superfund Statute.
Guam is appealing a decision by the U.S. Court of Appeals for the District of Columbia Circuit that the area is unable to seek US Navy funding toward the cost of cleaning up the Ordot Dump. The Navy created the dump in the 1940s and disposed of chemical waste and ammunition there until the 1970s. Guam used it as a municipal landfill after taking responsibility for it in 1950. In 1983, the Environmental Protection Agency added the landfill to Superfund’s national priority list for remediation, and in 1988 the EPA named the Navy as the potentially responsible party for the cost of clearing the contamination. However, the United States argues that Guam’s settlement of an EPA’s Clean Water Act action in 2004 to curb water pollution from the landfill triggered a three-year statute of limitations for Guam to resolve contribution claims under Section 113 (f) (3) (B) of CERCLA .
Former Attorney General Gregory Garre, who represented Guam, told judges Monday that the settlement under the Clean Water Act of 2004 could not have triggered CERCLA’s three-year statute of limitations because it was not a CERCLA settlement. Garre believed that the trigger in Section 113 (f) (3) (B) for Settlements That “Solved Their Liability” for “some or all of the response measures” should be construed to apply only to the CERCLA Liability applies. He stated that “Response Action” is “a well-known CERCLA art term”. Noting that the federal government is immune to lawsuits under the Clean Water Act, Garre deliberately accused the U.S. of isolating itself from liability by pursuing a CWA lawsuit against Guam instead of a CERCLA lawsuit.
Assistant Attorney General Vivek Suri, who argued for the federal government, like the court below, stressed the lack of a specific reference to CERCLA in the language of Section 113 (f) (3) (B). However, he had to admit that Section 113 (f) (2), which is also not referred to, only applies to CERCLA settlements. He noted that CERCLA’s “response action” is broadly worded, “in a manner that does not depend on the underlying law” under which the settled lawsuit was placed. Judge Sonia Sotomayor later noted that CERCLA and the CWA approach very different harms, with CERCLA focusing on the release of hazardous substances while the CWA covers improper discharges of pollutants.
Judge Stephen Breyer was skeptical of Guam’s assertion that the 2004 settlement could not have “resolved” any of his CERCLA liabilities, as the resolution approving the settlement expressly denied liability. He noted that “people all the time sorting out cases where … they won’t admit they are liable, but they might agree to take action.” Garre clarified that Guam was not arguing that you have to admit the claim was valid. Instead, “the problem with the settlement is that it did not wipe out any [CERCLA] Liability. “After Garre claimed the United States could still sue Guam under CERCLA, Breyer asked,” Then what did you get out of your agreement? Nothing? ” Garre responded that the deal resolved CWA penalties that would otherwise add up over time.
When asked by Justice Clarence Thomas whether the United States could still sue Guam under CERCLA, Suri said the government did not believe the settlement here would have allowed us to bring such a lawsuit against Guam. He noted that the consent decree covered “related claims,” although Sotomayor later found that the settlement did not specifically include clearance of claims under other environmental laws.
Several judges expressed concern that the United States had been unfair to Guam. Suri admitted that “Guam makes a lot of miles out of its allegations” and replied that the Guam government would dispute the Guam version of the facts, which would have to be considered true for the time being if the case were brought to justice. Discharge phase. He argued that the United States had a legitimate reason to use the CWA instead of CERCLA to “kill two birds with one stone”.
Judges Neil Gorsuch and Samuel Alito raised concerns about the US position on federalism. Gorsuch noted the unusual amicus letter submitted by an equal number of red and blue states (“everyone from Massachusetts to Wyoming said this would seriously affect the state clean-up … instead of promoting it.”). He brushed aside Suri’s suggestion that CERCLA’s “austerity clauses” would prevent such problems.
In response to concerns that the US position might create “a trap for the unwary,” Suri noted that “these cases involve sophisticated parties: government agencies, territorial or state governments, and large corporations. These are the types of companies that can be expected to have good legal advice on how environmental laws interact with CERCLA. “
The argument ended with an excellent counter-argument from Garre and something seldom achieved during the virtual advocacy of the pandemic era: the argument only consumed 53 of his allotted 60 minutes.
Both lawyers made excellent arguments, but when the argument ended it appeared that Guam had improved its chances of domination. A decision in Guam’s favor is unlikely to have much impact beyond the potential relaxation of what the court called “hard” outcome in this particular case. This is because the EPA’s current sample settlement agreements now specify the exact consequences of settlement for CERCLA contribution claims.