Do Statutes of Repose Under CERCLA Really Require Supreme Court Review

Even Superfund lawyers are likely to find the Supreme Court’s decision yesterday in CTS Corporation v. Waldburger to be of limited interest.  Unable to reach an agreement about a federal “toxic tort” cause of action, Congress in the 1986 amendments to CERCLA settled on a limited provision that federalized the equitable tolling of statutes of limitation applicable to state toxic tort claims so that toxic tort claims would not accrue until a plaintiff either knew or should have known of his claim.  The issue before the Supreme Court in CTS was whether that equitable tolling doctrine applied to state statutes of repose as well as to statutes of limitation.

A majority of the Court held that the language of Section 9658 of CERCLA was intended to preempt only statutes of limitation, not statutes of repose. According to the majority, a statute of repose focuses on the last act of a defendant which gives rise to the toxic tort claim, whereas a statute of limitation turns on when a plaintiff knew or should have known of the potential claim. Because Section 9658 speaks only of statutes of limitation and is structured to defer the accrual of a toxic tort claim based on the timing of the plaintiff’s knowledge of a claim, the majority declined to extend CERCLA’s equitable tolling rule to statutes of repose. Although the dissenting opinion by Justices Ginsberg and Breyer argue that CERCLA’s remedial purpose requires that the tolling rule must also be applied to statutes of repose, the majority rationale is more persuasive.

My partner in both law and blogging, Seth Jaffe, sees CTS as the continuation of the Supreme Court’s plain reading of CERCLA’s language which began in Best Foods and continued with Aviall; in those cases the Supreme Court refused to accept the mantra of CERCLA’s remedial purpose as a license to impose special rules for environmental cases which fly in the face of common law precedents and the language of the statute. Alternatively, CTS could be seen as further evidence of the polarization of the Roberts Court along ideological lines, with the majority once again favoring the rights of corporate defendants over the rights of individual plaintiffs. In the end, though, the real question is Congress’s failure to actually address the “compensation” part of the Comprehensive Environmental Response, Compensation and Liability Act.  It is the question posed  by the oven bird in a poem of that name by Robert Frost:

The question that he frames in all but words

Is what to make of a diminished thing.

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