Supreme Court hears crucial N.C. water pollution case

McClatchy Washington BureauApril 23, 2014 

US NEWS LEJEUNE-WATER 5 ABA

Mike Partain, breast cancer survivor and son of a Camp Lejeune Marine, speaks at a rally to protest the government’s position in Landmark Supreme Court Case, CTS Corporation v. Waldburger, Wed., April 23, 2014, in Washington, D.C.

OLIVIER DOULIERY — MCT

— Raw emotions bubbled just below the surface Wednesday as the Supreme Court considered a crucial North Carolina groundwater pollution case.

For experts, the case called CTS Corp. v. Waldburger centers on the relationship between state and federal laws and the ticking of the courthouse clock. Simply put, it’s about how long people have to sue polluters when they’ve been harmed. Being the law, though, it’s rarely that simple.

“This is angels on the head of a pin, isn’t it?” Justice Antonin Scalia asked Wednesday, after one abstract exchange in an argument that periodically seemed to favor CTS.

For a host of North Carolina residents and former Camp Lejeune Marines, the technical argument Wednesday rarely touched the personal depths that carried them to court in the first place. It comes down to this: If CTS Corp. and its Obama administration allies win, as they well might, a number of North Carolina-related environmental lawsuits and health claims will fail.

“This is a sad day,” said retired Marine Corps Master Sgt. Jerry Ensminger, who came up from his home in Elizabethtown, N.C., for the argument. “Basically, what the Department of Justice is trying to do here is take away the very rights that we fought for.”

Ensminger served 24 years in the Marine Corps. He did multiple stints at Camp Lejeune, where he and his family members were unknowingly exposed to contaminated water. His daughter Janey was subsequently diagnosed with leukemia when she was 6; she died when she was 9, in 1985.

Along with many others who served at Marine Corps Base Camp Lejeune, Ensminger is pursuing a claim against the federal government. The government’s defense relies, in part, on the same position CTS Corp. took in the separate case heard Wednesday. Consequently, the court’s eventual ruling in CTS Corp. v. Waldburger will also affect the Camp Lejeune cases.

CTS owned, until 1987, a manufacturing facility in Asheville, N.C. The land was subsequently sold and developed as a residential subdivision. More than a decade after CTS sold the land, residents began learning that their well water contained carcinogenic chemicals, including trichloroethylene, one of the chemicals also found in Camp Lejeune water.

The ensuing litigation crashes into a North Carolina “statute of repose,” which requires that certain lawsuits be filed within 10 years of the last allegedly harmful act. This is supposed to protect corporations or other property owners from an endless threat of litigation.

“The statute of repose is intended to provide certainty at the back end to a defendant so it can order its affairs, have insurance policies that make sense,” Joseph R. Palmore, assistant to the solicitor general, told the justices Wednesday.

Brian J. Murray, the Chicago-based attorney for CTS Corp., added Wednesday that the time limits help “avoid vexatious litigation designed to shake down settlements 40, 50 and 60 years after you’ve abandoned a site.”

The time limits pushed by CTS Corp. and the Obama administration seemed to appeal to Chief Justice John Roberts Jr. in particular. All eight of his questions Wednesday were aimed at the other side, which is often a reliable sign of which way a justice is leaning.

The time limits imposed in North Carolina and a few other states also mean, though, that the 10-year limit may slam the courthouse doors shut before an individual even discovers he’s been exposed. This happened at Camp Lejeune and at the former CTS Corp. site.

The legal question pressed Wednesday was whether Congress, through a law called the Comprehensive Environmental Response, Compensation and Liability Act, pre-empted the state’s 10-year limit. A provision of the federal environmental law starts the hazardous-waste litigation clock ticking only after someone discovers harm, rather than the longer-ago moment that the harmful acts ended.

“Congress was concerned about people not having their day in court,” John J. Korzen, the director of the Appellate Advocacy Clinic at Wake Forest University School of Law, told the justices Wednesday, adding that “Congress wanted polluters to be on the hook as long as it took to clean up.”

Students at the Wake Forest law clinic had represented the Asheville-area residents suing CTS Corp. at an earlier appellate hearing, and 10 or so clinic alumni traveled to the Supreme Court for the argument Wednesday. They heard, throughout the give-and-take, Justices Elena Kagan and, in particular, Ruth Bader Ginsburg reveal themselves as potentially sympathetic votes.

“If you were to prevail,” Ginsburg told the CTS Corp. attorney, “then the parties concerned might well go to their state legislatures and say, ‘Enact a statute of repose. That would get us off the hook, even before the injured party is aware of the injury and of the cause of it.’ ”

Justice Clarence Thomas, as is his custom, did not speak or ask questions during the hourlong argument. Justice Stephen Breyer, uncharacteristically, also stayed silent. A court decision is expected by the end of June.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10.

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