by John Andren, Washington Legal Foundation*
It’s not often that a court decision like Waldburger, et al. v. CTS Corporation comes along, one which is interesting not only because of its potentially broad impact, but also because of the case’s intriguing ancillary characteristics. The case featured plaintiffs (represented by law students) arguing for federal preemption so they could bring their state law nuisance claim; a defendant and the U.S. government opposing preemption; and a deeply divided 2-1 outcome in the U.S. Court of Appeals for the Fourth Circuit, where all three judges were Obama appointees.
Waldburger was at its core a case about statutory interpretation and the crucial distinction between statutes of limitations—laws barring claims brought after a certain amount of time has elapsed since either the tortious or criminal act was committed or the claim was discovered—and statutes of repose—which bar claims brought later than a (typically longer) set number of years after the date of the defendant’s last action regardless of when any claim was discovered.
Plaintiffs in the case, who were represented at oral argument by a third-year law student from Wake Forest University, sought compensation for real property damage from CTS Corporation for the alleged dumping of toxic chemicals by one of CTS’s subsidiaries almost 30 years ago. CTS argued that CERCLA’s statute of limitations provision did not preempt North Carolina’s 10-year statute of repose, and since the defendant’s last actions were well over 20 years ago, plaintiff’s claims were barred. Interestingly, the Department of Justice shared time with CTS at oral argument to argue against preemption. DOJ is involved in an Eleventh Circuit case where the United States is the defendant and is opposing application of CERCLA’s limitations provision.
The decision of the split Fourth Circuit panel was disappointing. The court held that CERCLA’s statute of limitations preemption provision applies to statutes of repose even though Congress understood the clear difference between the two and failed to use the term “statute of repose” a single time while repeatedly referencing statutes of limitation. Although the majority found that the “noticibl[e] absen[ce]” of the phrase “statutes of repose” “could reasonably lead to a conclusion that its application is limited only to statutes of limitations,” and agreed with the district court that “the text is susceptible to [such an] interpretation,” the majority managed to find “an alternate reading—one that includes repose limitations such as North Carolina’s.”
CERCLA is an admittedly less-than-crystal-clear statute, but such a capricious reading and attempt to impute congressional intent on a statute that unambiguously refutes such an interpretation invites congressional laziness and appears to be a serious judicial overreach. As Judge Thacker said in her meticulous and well-argued dissent, referring to CERCLA’s intent to put a thumb on the scale in favor of plaintiffs who claim injuries suffered due to toxic substances:
Where Congress by plain and unambiguous language has indicated how much pressure it wishes to apply in that regard, it is not the duty of this court to press harder and shift the balance. Rather, it is the prerogative of Congress to strike that legislative compromise.
We couldn’t agree more.
The good news is that there remains a strong possibility of Waldburger’s being reviewed en banc. In addition, with the Eleventh Circuit set to hear the aforementioned case with similar claims and an already existing circuit split—the Ninth Circuit found grounds for preemption while the Fifth Circuit did not—this issue may soon find its way up to the Supreme Court to be resolved.
*John Andren is an intern with Washington Legal Foundation’s Legal Studies Division who graduated from George Mason University with an economics degree. John will be attending Georgetown Law in the fall.