The Supreme Court appeared unsympathetic to the tiny island territory, which will have to foot the entire bill to clean up a massive dump that the U.S. Navy created in the 1940s if the justices don’t rule in its favor.
WASHINGTON (CN) — Guam may have missed its window of opportunity to seek help from the federal government in cleaning up a massive waste site leaking toxic chemicals into the Pacific Ocean — though footing the bill would be unduly difficult for the tiny island.
During oral arguments on Monday, U.S. Supreme Court justices didn’t seem swayed by Guam’s argument that the territory still had time to petition the U.S. Navy for help with cleanup costs.
“Guam is left on the hook for all of the costs — more than $160 million — of cleaning up a waste site that the United States Navy itself created and then used to dump toxic wastes for decades going back to World War II,” Guam said in its September 2020 petition to the Supreme Court.
But the feds argue the U.S. territory is responsible for the contamination, as it has been operating the now-shuttered Ordot Dump since the 1970s. Plus, Guam missed the deadline under the Comprehensive Environmental Response, Compensation and Liability Act, or CERCLA — commonly known as the Superfund law — to seek compensation, which allows entities responsible for cleanup to seek contributions from other responsible parties.
In February 2020, the D.C. Circuit sided with the United States, finding that Guam missed its window to ask the federal government for help, which it said began after a Clean Water Act settlement in 2004 under which Guam was required to stop operations of the dump and clean it up.
“The United States deposited dangerous munitions and chemicals at the Ordot Dump for decades and left Guam to foot the bill,” wrote U.S. Circuit Judge David Tatel, a Bill Clinton appointee. “The practical effect of our decision is that Guam cannot now seek recoupment from the United States for that contamination because its cause of action for contribution expired in 2007.”
The Supreme Court now faces the question of whether the settlement triggered a three-year statute of limitations which prevents the territory from seeking compensation under the Superfund act, even though the settlement didn’t mention the law.
Justice Sonia Sotomayor pushed counsel for Guam on whether the settlement agreement resolved the Clean Water Act claims.
“No, the claims themselves were conditioned on compliance with the decree —” attorney Gregory George Garre began.
“Counsel, you’re quibbling with words,” Sotomayor interrupted. “You got some value out of it, you got away from some damages that you were fearful of.”
“The bottom line is that the United States wants to have its cake and eat it too,” Garre later told justices. “It sued Guam under the Clean Water Act in order to insulate itself from liability from its own role at the Ordot Dump.”
He continued, “And now it wants to block Guam’s actions to recover a portion of its cleanup costs, by saying that the parties’ settlement of the Clean Water Act claim somehow barred a CERCLA contribution claim.”
The United States chose to settle under the Clean Water Act, making no mention of CERCLA, Guam and its supporters claim.
“Now that Guam has invoked CERCLA against the United States however, the latter argues that the CWA-only settlement triggered Guam’s sole — and conveniently now-stale — claim,” a number of states and territories said in an amicus brief in support of Guam.
The 26 jurisdictions say the D.C. Circuit decision allows the United States to dodge liability and put an unfair share of costs on individual states for some of the largest and most severely contaminated sites in the country.
“The decision below opens the door to arguments that state law must yield to monolithic nationwide standards in a vast swath of cleanup disputes,” the brief states. “As a result, the decision threatens to chill responsible parties’ willingness to cooperate and settle with state regulators, thereby thwarting states’ interest in promoting quick and cost-effective cleanup.”
The Supreme Court is expected to hand down its ruling in the case by the end of June.