A lot has already been written and said about yesterday’s 7-2 decision in the U.S. Supreme Court in CTS v. Waldburger case, in which the Court held that statutes of repose (as opposed to statutes of limitations) are not preempted by CERCLA and operate, as North Carolina’s did there, to bar state law claims for contamination. The case turned on whether CERCLA distinguishes between statutes of limitation and statutes of repose, and, in effect, whether there are any meaningful legal differences between the two. In a nerdy nutshell, statutes of limitation are “designed to promote justice by encouraging plaintiffs to pursue claims diligently and begin to run when a claim accrues.” Statutes of repose, on the other hand, are a “legislative judgment that a defendant should be free from liability after a legislatively determined amount of time and are measured from the date of the defendant’s last culpable act or omission.” If you dig into the case and the legislative history, you’ll quickly see that Congress did actually consider these differences when it expressly preempted statutes of limitations and declined to include statutes of repose. So the 7-2 decision did not surprise many.
I bring this case to your attention for two reasons. First, the decision arguably limits future claims for contamination under state law, or at least, the decision provides a road map for doing so. One obvious possibility is that states will decide to shield companies from old contamination by enacting repose statutes. (There are only a small number of states which currently have repose periods.) This would have no impact on federal claims or state claims not subject to repose statutes and could be an uphill political battle in some places. (Considering the Duwamish for a second, would Washington enact a law that might operate to shield some of the smaller companies from liability when the City of Seattle, King County, the Port of Seattle and Boeing have already done so much work there? It seems a rather unlikely political result even if you could overcome the legal hurdles to get there.)
Second, and more personally significant, the CTS side of the case was argued by an undergraduate and law school classmate of mine, Brian Murray. Actually, Brian Murray was a few years ahead of me in both, but we played together in the best marching band in the country, and suffered through some tough football seasons together. Those are the kinds of bonds that run deep. It is was someone else who describes the opinion as a “gold mine for law nerds,” from which the title of the post is derived, and the seemingly archaic, miniscule distinctions between repose and limitations certainly are proving to be fodder for lots of geek speak. Anyway, I’m honored to know Brian, a decent, wickedly smart guy, who clearly knocked it out of the park on this one. Someone to watch if you haven’t been already watching.