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By: Lori L. Freshwater
In a case heard before the Supreme Court of the United States on April 24, 2014, the Obama Justice Department (DOJ) filed an amicus brief specifically designed to prevent Marines and their families from recovering damages for the disease and death caused by decades of exposure to toxic chemicals in their drinking water at Camp Lejeune, North Carolina—one of the most massive groundwater contaminations in U.S. history.
This decision also empowered all of the country’s corporate polluters. For instance appearing in another brief: The American Chemistry Council, The American Coatings Association, The American Petroleum Institute, The National Association of Manufacturers, and the Precision Machined Products Association.
The sordid story behind this case, Waldburger v. CTS Corporation, began in North Carolina almost 400 miles west of Camp Lejeune, where the CTS Corporation’s electroplating operations contaminated the groundwater. CTS sold the property in 1987, but the subsequent landowners did not discover the contamination until 2009, and brought suit against CTS in 2011.
As it happened, Congress had already wrestled mightily with such legalities back in 1980 with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The bill provided for federal preemption of state “statutes of limitation” in cases where the victims did not discover they had been injured until years later.
But like some other states, North Carolina also had a “statute of repose” on the books that provided that anyone injured by an activity like CTS’s groundwater contamination had to bring suit within 10 years of the last date on which CTS committed its damaging act. CTS argued that because Congress did not specifically mention a federal override of state “statutes of repose,” the federal law did not override North Carolina’s 10-year statute of repose. The district court agreed, and threw out the lawsuit.
When the landowners appealed, the Department of Justice had a shocking surprise for the people who’d been fighting to force the Marines to take responsibility for the contamination at Camp Lejeune. In an amicus brief filed on August 16, 2012, with the Fourth Circuit of Appeals, DOJ was blunt: “The United States also has a particular interest in the interaction of CERCLA with the North Carolina statute of repose because of ongoing litigation against the United States under the [Federal Tort Claims Act] involving allegations of contaminated drinking water at the Camp Lejeune Marine Corps Base in North Carolina.”
The judges of the Fourth Circuit of Appeals looked at the Congressional debate over CERCLA, and ruled 2-1 in favor of the landowners. As the majority noted, their historical analysis showed that “both scholars have often used the terms [‘repose’ and ‘limitations’] interchangeably.” The majority concluded:
In light of this charge, we reject a reading of § 9658 that excludes application of its provisions to North Carolina’s ten-year limitation. Such an interpretation may seem to be textually sound under one possible reading of the statute, but it offers too narrow an approach and one that thwarts Congress’s unmistakable goal of removing barriers to relief from toxic wreckage.
“The reason the statute of repose was a problem is some of those health effects may not be apparent until 15 years after you’ve drunk the water,” said Robin Smith, a Raleigh attorney and former assistant secretary of the North Carolina Department of Environmental Quality (DEQ).
In 2014, the North Carolina General Assembly passed a pair of laws, first creating an exemption to the 10-year statute of repose in groundwater cases, and then later striking a sunset clause that would have seen the exemption expire in June 2023.
But also in 2014 the matter was taken to the Supreme Court which heard oral arguments on CTS’s appeal of the Fourth Circuit’s ruling. And once again, the DOJ filed an amicus brief repeating the administration’s craven concern about litigation at Camp Lejeune. His own DOJ brief stood in bitter contrast to Obama’s August 6, 2012 decision to sign the Janey Ensminger Act of 2012, which provided more medical care for the hundreds of thousands of potential victims at Camp Lejeune. (Obama signed this law only 10 days before the DOJ filed its completely contradictory brief with the Fourth Circuit.)
On June 9th of 2014 the SCOTUS opinion was announced:. North Carolina’s statute of repose is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), which instead only preempts state statutes of limitations on bringing state-law environmental tort cases.
The Judgment: Reversed, 7-2, in an opinion penned by Justice Kennedy on June 9, 2014. Chief Justice Roberts, Justice Scalia, Justice Thomas and Justice Alito joined the opinion except as to Part II-D. Justice Scalia filed an opinion concurring in part and concurring in the judgment, in which Chief Justice Roberts, Justice Thomas, and Justice Alito joined. Justice Ginsburg filed a dissenting opinion, in which Justice Breyer joined.
The Supreme Court effectively gave the win to the polluters. Writing for the SCOTUS blog, law professor Robert Percival said, “The federal government, which supported CTS in seeking dismissal of the lawsuit, is now likely to avoid liability for allegedly exposing marines and their families to contaminated drinking water at Camp Lejeune, North Carolina. The decision continues a trend in which the Court has interpreted CERCLA far more narrowly than the lower courts, which frequently have emphasized the broad, remedial purposes of the statute.”
This was a severe blow to those exposed to deadly chemicals at Camp Lejeune because it removed their right to seek legal recourse for damages. But perhaps especially so for those who had already begun the long legal process of taking the government to court.
In looking at the road leading to Waldburger v. CTS Corporation and the eventual signing by President Biden of the PACT Act which includes the Camp Lejeune Justice Act – It is important to first understand the Feres Doctrine, which bars claims against the federal government by members of the armed forces and their families for injuries arising from or in the course of activity incident to military service. But the Federal Tort Claims Act (FTCA) is a way for service members and their families to file administrative claims with the Navy. According to the Department of the Navy website, “The FTCA is a limited waiver of sovereign immunity that allows the U.S. to be sued under certain circumstances, with several congressionally imposed conditions on the waiver. The Department of the Navy (DoN) is authorized to pay an FTCA claim only when those conditions apply”
In 2005, individuals began filing these administrative claims. According to the Navy, “to date, approximately 4,400 Federal Tort Claims Act administrative claims have been filed alleging personal injury or wrongful death resulting from exposure to contaminants from the 1950s to the 1980s.”
The first non-administrative complaint filed in response to the Camp Lejeune water contamination was filed by a woman named Laura Jones who suffered, and eventually died, from non-Hodgkin’s lymphoma that she believed was linked to the contaminated water she drank, cooked with, and bathed in, at Camp Lejeune. On July 6, 2009, Jones filed a 14-page complaint against the U.S. government in the Eastern District of North Carolina seeking $10,000 in damages. A few months prior, in April 2009, the Agency for Toxic Substances and Disease Registry withdrew their 1997 public health assessment (PHA) for Camp Lejeune, which had denied any connection between the toxins and illness. These early cases did not have the benefit of the new Public Health Assessment of the numerous studies now completed.
The government filed to have the Jones case dismissed but a federal judge denied the motion. More claims followed Jones as people stepped up to join her in the assertion that the government knowingly exposed Marines and family members to toxic drinking water. These cases were eventually sent to the U.S. District Court for the Northern District of Georgia and bundled into a multi-district litigation (MDL). MDLs are often seen in federal civil litigation in order to reduce the burden on federal district courts “and make litigation more convenient for parties and promote overall efficiency in the court.” Cornell Law [https://www.law.cornell.edu/wex/multidistrict_litigation]
The court describes the Camp Lejeune litigation as claims involving the “defendant, United States of America,” which “failed to maintain, inspect, and provide water at Camp LeJeune that was fit for human contact and consumption by allowing contaminates to exist in the base water supply.”
However, due to the Waldburger v. CTS Corporation decision, on December 5, 2016 the MDL was dismissed on North Carolina statute of repose grounds. The Department of the Navy said that based upon this ruling the FTCA administrative claims would also be dismissed because they had no legal authority to pay them. The Navy said it believed it would be a “disservice to the claimants to continue to hold the claims without decision,” therefore “consistent with the advice and recommendation of the Department of Justice, the Office of the Judge Advocate General of the Navy has begun denying the claims.”
After the Supreme Court loss, and following the mass dismissal of all claims, those still interested in a legal path began to pursue a fix from the legislative branch. This eventually became The Camp Lejeune Justice Act, which was inserted into the Honoring our PACT Act passed by both the House and Senate and signed into law by President Biden.
Now the work begins where this travesty began, back in the Eastern District of North Carolina where the court will be facing one of the largest MDLs in history. The Camp Lejeune complaints will cover decades of evidence and must all be filed during the two-year window mandated by the Camp Lejeune Justice Act of 2022. In some ways this road to litigation has come to an end, but in truth there is no way to anticipate how complicated, massive, and unprecedented this new phase of the legal process will become. Especially considering it has been estimated that up to a million people were affected by the country’s largest water contamination case in our history.
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