Guam v. United States

Ordot Landfill in 2016

Guam, an island in the Pacific Ocean, had become a key base for the United States Navy during World War II after the United States regained control of it from Japan in the Battle of Guam in 1944. As part of establishing ports and bases on the island, the Navy created the Ordot Dump landfill for disposal of waste, including material like DDT and Agent Orange. After the war, Guam was made into a U.S. territory by the Guam Organic Act of 1950. Since this gave the island its own governance, the Navy transferred control of the Ordot Dump to Guam that year. The Navy continued to use the landfill until the 1970s, while the landfill was the only solid waste disposal facility for Guam until the 2000s. As the landfill was built without liners or caps, it became an environmental hazard. The Environmental Protection Agency (EPA) added the Ordot Dump to the National Priorities List in 1983 and had named the Navy as a potentially responsible party to it in 1988.[1]

In 2002, the EPA filed a complaint against Guam, stating that their management of the Ordot Dump violated the Clean Water Act, as waste contaminants from the dump were found to run off into the nearby Lonfit River and eventually into the Pacific Ocean. A consent decree was achieved in 2004, with Guam agreeing to pay a fine, close the site, and install a cover on the landfill.[2] A separate action initiated by the EPA in 2004 led to the site's forced closure in 2011,[3] and Guam agreeing to remediate affected areas around the landfill.[2] Total costs for completing these, along with other cleanup efforts ordered by the court, were estimated at $160 million.[1]

Guam filed a suit against the United States in 2017 under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA, or Superfund), asserting that since the Navy had been found as a potentially responsible party contributing to the site, the U.S. bears some of the cleanup costs, as outlined in CERCLA Section 107(a). The U.S. moved to close the suit, stating that under the clauses of CERCLA, there was a three-year statute of limitations for filing such complaints under CERCLA Section 113(f)(3)(B), which started with the consent agreement in 2004, and thus Guam had missed its window.[1]

The case was first heard in the United States District Court for the District of Columbia in 2018. The District Court ruled to allow the case to proceed in favor of Guam in September 2018.[4] Judge Ketanji Jackson ruled that the consent decree did not involve liability for the environmental cleanup, nor involved the ability of Guam to seek liability response actions under CERCLA.[2] The government appealed to the District of Columbia Circuit, which reversed the District Court's decision in March 2020 and agreed that the statute of limitations for Guam had expired in 2007, three years after the 2004 consent agreement, as set by Section 113(f)(3)(B).[5][1]

Guam petitioned their case to the Supreme Court, asking them to resolve the question of whether Section 113(f)(3)(B)'s three-year statute applied to the consent agreement they had made with the EPA. The Court granted certiorari to the case in January 2021,[6] with oral arguments heard on April 26, 2021.[7]

The Court issued its decision on May 24, 2021, reversing the D.C. Circuit Court's ruling and remanding the case for further review. In the unanimous opinion, the court ruled that Section 113(f)(3)(B) did not apply to the consent agreement that Guam had made with the EPA, and thus the three-year statute of limitations from Section 113(f)(3)(B) did not apply; as such, Guam had the ability to pursue action against the government as allotted by Section 107(a). Justice Clarence Thomas wrote the opinion, focusing on the statutory interpretation of CERCLA. Thomas stated that "To be sure, as the Government points out, remedial measures that a party takes under another environmental statute might resemble steps taken in a formal CERCLA 'response action'. But relying on that functional overlap to reinterpret the phrase 'resolved its liability … for some or all of a response action' to mean 'settled an environmental liability that might have been actionable under CERCLA’ would stretch the statute beyond Congress' actual language."[8]

The decision has a potential impact on a number of pending lawsuits filed by states and local entities against the U.S. government and large companies to try to seek some recovery for the costs for cleanup of Superfund sites, as these suits had followed similar patterns of interaction between Guam and the EPA.[1]

• Text of Guam v. United States, 593 U.S. ___ (2021) is available from: Justia  Oyez (oral argument audio)  Supreme Court (slip opinion) 

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