DoJ: Allegations that Navy contributed to Ordot Dump are not “true as a matter of fact”

CLOSED: Trucks discard trash at the Ordot dump in this file photograph. The U.S. Supreme Court heard oral arguments Tuesday in Guam's lawsuit against the U.S. Navy to help pay the cost of closing the dump. Post file photo.

Editor's note: This is the second of a three-part report on GovGuam's legal battle – all the way to the U.S. Supreme Court – to get the federal government to pay for the cost of closing the Ordot dump.

U.S. Supreme Court justices sought additional clarity and justification for the sweeping legal effects beyond just Guam’s blocked efforts to sue the federal government under an environmental law passed by Congress.

The Department of Justice has asserted throughout the case that that a 2004 consent decree to close the Ordot dump began a three-year time frame for the local government to seek compensation through Comprehensive Environmental Response, Compensation, and Liability Act, known as CERCLA.

The U.S. government is also disputing Guam’s position that the Navy previously contributed to the problems at the dump, a key component to the island’s sought-after CERCLA claim.

“Counsel, Guam's argument in very simple terms is basically this: We're a small island, and the only reason - and while we may have contributed to part of the problem with this dump, the Navy contributed quite a bit too, but, in any event, all of this, the respective liability of Guam and the United States should be adjudicated under CERCLA, where the United States could bear some of the costs, but the United States has cleverly proceeded against us under the Clean Water Act for the purpose of avoiding that,” Justice Samuel Alito said to DoJ attorney Vivek Suri.

The U.S. government’s representative responded in part: “Although Guam gets a lot of mileage out of its allegations that the Navy contributed to the Ordot dump, and although we're required to accept those allegations as true at this motion to dismiss stage, we don't actually think the allegations are true as a matter of fact.”

The United States’ argument is based in part on statutory terms used in CERCLA. The phrase “response action” was stressed to the justices to show that remediation and funding agreed to in the dump’s consent decree can give rise to, and begins timelines to seek “contribution claims” under the environmental law.

“The term ‘response action’ is defined in CERCLA in a way that does not depend on which underlying statute that action was undertaken in order to comply with,” Suri said to the justices. “In addition, CERCLA often uses the term "response action" to include acts taken under other statutes. If Congress wanted to limit this provision to CERCLA liability, it could easily have said so.”

During the oral arguments presented by Guam’s legal representative, a legal argument was presented that the federal government’s interpretation could bind all other states and territories to this single solution, and precludes them from seeking damages and cost recovery for polluters through their own local laws, or other federal statutes.

“And that's one of the problems that the state amici addressed and that the government's interpretation would mean that, anytime you settle a non-CERCLA claim under state law, it would trigger this federal contribution claim and, therefore, override states' different cost recovery regimes, which is a direct intrusion that this court would not presume that Congress intended unless it said so,” said Gregory Garre, a former solicitor general who argued the case for Guam.

Justice Stephen Breyer pointed out that the legal phrase “response action” covers hundreds of acts, he said he was tempted to say the term includes “anything under the sun.”

“I mean, this is a pretty tough reading, and a lot of people just won't know they have only three years. They might think they had seven or something else,” Breyer said to Suri. “So what kind of a boundary is this if we read it your way? I mean, what statutes are involved? Have you looked up all the statutes in the states that might use words like any of the 450 or 500 that are there in the definition? You see the thrust of my question?”

Suri responded that a lot of these cases involve “sophisticated parties” like governmental entities, territorial or state governments, and large corporations.

“These are the kinds of entities that can be expected to have good legal advice about how environmental laws interact with CERCLA. Finally, to the extent that there are case-by-case fairness problems, those should be addressed under a framework such as equitable tolling, not by distorting the meaning of the substantive statute itself,” he said to Justice Breyer.

But the prospect of binding Guam’s hands over CERCLA based on another federal law, like the Clean Water Act was questioned by Justice Sonia Sotomayor.

“By the way, I thought that the harm addressed in the Clean Water Act was releasing pollutants without a permit. That's a very different harm than what CERCLA looks to, which is releasing hazardous pollutants, with or without a permit, you're still prohibited from doing that,” she said. “So those – aren't those two different harms, and why should one extinguish or create an obligation to claim under another?”

The question prompted an exchange between the justice and the federal government’s attorney.

“We don't agree with the characterization that these harms are fundamentally different. EPA itself determined when deciding not to proceed under CERCLA that the Clean Water Act remedy would address both the CERCLA harm and the Clean Water Act harm,” Suri responded.

“But the release didn't say that,” Sotomayor said.

Suri began to respond: “I – I agree. But the question is –“

“And you could have done that just as easily, correct?” Sotomayor pressed further.

“Certainly. But that's not what the statute requires,” Suri answered.

Guam’s position on the case is supported by about half the states and territories of the U.S., arguments filed on their behalf were referenced by Justice Niel Gorsuch.

“We have a brief from, I think, about 25, 26 states and territories, including some very different ones ... everybody from Massachusetts to Wyoming, saying that that would seriously impair state cleanup efforts to federalize and preempt every … settlement, if you can read ‘response action’ quite so broadly, and that this is going to wind up impairing cleanup efforts rather than advancing them,” he said.

“Justice Gorsuch, the premise that our petition had that preemptive effect is incorrect, and there are two provisions of the statute that show that it's incorrect,” Suri argued, later adding, “Our point is simply if a party wants to bring a state law action under state law, he can do that and it's governed by state law. If he wants to bring it under this paragraph, it's governed by federal law. There's no preemption there because they're both avenues that are open to those parties.”

The Supreme Court is expected to issue a ruling on the case by the end of June.

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