U.S. Supreme Court Says Guam Can Proceed in Environmental Fight

Pago Bay in Guam
The Lonfit and Pago rivers in Guam flow into Pago Bay, pictured. Both rivers were the focus of the 2004 Clean Water Act settlement between the U.S. and Guam that led to a case recently decided by the U.S. Supreme Court.

The U.S. Supreme Court on Monday rejected a federal government effort to block Guam’s claim to millions of dollars for cleanup of a long-abandoned military weapons dump, unanimously holding that a water pollution settlement did not lead to the expiration of a statute of limitations. The decision came not long after oral arguments, which the court heard in late April.

The Pacific Ocean territory’s win may assure that the U.S. is not able to use its role as an enforcer of environmental laws to prevent its own financial liability when it has violated those laws. “Score one for the little guy!” said Vermont Law School professor Patrick Parenteau, a specialist in environmental law.

Guam’s chief law enforcement officer said the decision means his community has achieved an important non-legal victory to go along with the opportunity to press its case forward. “The Navy and the federal government must finally admit to us, the People of Guam, that they contributed to the toxic damage to our environment,” Leevin Camacho, the territory’s attorney general, said in a statement. 

Justice Clarence Thomas’ opinion addressed a provision of the federal Comprehensive Environmental Response, Compensation, and Liability Act that governs the right of a party that settles a claim of environmental damage to seek contribution for hazardous waste remediation from another responsible party. Whether the settlement had to be of a claim under the so-called Superfund law or whether it could instead include one that resolved a dispute under another federal environmental law was uncertain before Monday. “We hold that CERCLA contribution requires resolution of a CERCLA-specific liability,” wrote Thomas.

The case involved the Ordot Dump, which had been opened on the island after the U.S. seized it during the Spanish-American War. As World War II proceeded, the dump was used by the Navy as a site for the disposal of toxic waste. Following the enactment of the Guam Organic Act in 1950, the island formed a civilian government and Guam obtained the dump from the Pentagon, using it until 2011 as a landfill while the Department of Defense continued to use the facility as a dumpsite during both the Korean War and the Vietnam War. 

Guam alleged in its CERCLA lawsuit that the chemicals deposited there included DDT and Agent Orange. In September 1983, the Environmental Protection Agency added the “280-foot mountain of trash” — as a federal judge described Ordot Dump in 2008 — to the National Priorities List, a schedule of hazardous waste hotspots slated for cleanup. By 1988, EPA determined that the Navy was a “potentially responsible party” for the hazardous waste pollution at the dump and, in 1994, Guam Gov. Joseph Ada ordered Ordot Dump to close by 1997. The dump actually closed in 2011.

The EPA sued Guam in 2002, alleging that leakage from the dump into the Lonfit River, Pago River and Pacific Ocean violated the Clean Water Act. About two years later, the two parties settled that case, with Guam agreeing to pay civil penalties and close and remediate the dump’s pollution. A clause in the consent decree specified that “the United States does] not waive any rights or remedies available to it for any violation by the Government of Guam of federal and territorial laws and regulations.” 

That language was later cited by the Department of Justice as the trigger of a statutory limitations period when Guam sued the federal government in 2017 for financial contribution to the Ordot Dump cleanup costs under the Superfund law.

Guam’s case sought federal liability for the mess at the Ordot Dump under two different sections of the Superfund law. The first, known as the cost recovery section, was an available avenue for the claim only if the 2004 Clean Water Act litigation settlement had not foreclosed Guam from using it. The second, known as the contribution section, would be unavailable to Guam if the statute of limitations on its claim under that part of the law had been triggered in 2004. 

In February 2020 a federal appeals court in Washington, D.C. reversed a district judge’s decision not to dismiss the complaint. Judge David Tatel’s opinion for a three-judge panel held that the Clean Water Act agreement between the Pacific island territory and the federal government had settled the contribution claim, which caused a three-year limitations period to begin running, and that Guam could not also attempt to use the Superfund law’s cost recovery language as a way to force the U.S. to bear any part of the cleanup costs at the dump. 

The entire purpose” of CERCLA’s contribution liability provision “is to permit private parties to  seek contribution after they have settled their liability with the Government,” Tatel wrote. Consequently, he continued, the question was whether the 2004 deal had amounted to a settlement of Guam’s CERCLA financial exposure for its own contributions to toxic waste pollution after assuming ownership of Ordot Dump. The panel of judges found that it was. 

This conclusion was rejected by the Supreme Court. “A settlement must resolve a CERCLA liability to trigger a contribution action,” Thomas wrote. The “family of contribution provisions anticipates a predicate CERCLA liability, especially when properly read in sequence as integral parts of a whole.”

The justices’ holding means that Guam’s complaint will proceed to the discovery phase and, possibly, trial. “We will put our best case forward and seek accountability for their fair share,” Camacho said. “We look forward to our day in court.”

The expense to remediate toxic waste at Ordot Dump is likely to exceed $160 million, an amount that exceeds Guam’s “annual budget for its departments of public health and social services, police, fire, and public works and its Solid Waste Authority and Environmental Protection Agency,” according to E&E News.

Twenty-six states and territories supported Guam in the Supreme Court case. EcoWatch estimated in May 2017 that nearly 900 of the almost 1,200 Superfund sites in the nation are abandoned armed forces facilities, not including military bases, or locations linked to military activities. “So the decision has much wider implications for the liability of the US Government under CERCLA” than any financial exposure resulting from activities at the Ordot Dump, Parenteau said. 

Residents of Guam are represented by a non-voting delegate in Congress. They are not considered U.S. citizens and do not have the right to vote in presidential elections.

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