SUPERFUND: Arcane arguments, big stakes as Supreme Court hears N.C. cleanup case — Wednesday, April 23, 2014 —

The report cited above is a good summary of the interesting (enviro geek alert!) arguments in this case out of North Carolina. I have previously written about this case (see links below), which involves personal injury and contamination claims by some North Carolinians against CTS. North Carolina has a “statute of repose” that completely bars claims more than 10 years after the last act of a potential defendant. In this case, the Plaintiffs did not even discover the contamination until more than 10 years after CTS quit operating on the site. The usually conservative and business-friendly Fourth Circuit held in a July 2013 opinion that CERCLA’s discovery rule preempted any state limitation or repose rule, so that anyone harmed by “any hazardous substance, or pollutant or contaminant” (which is much broader than the substances for which CERCLA liability itself can be imposed) has up to three years to sue after discovery of the harm.

Common legal wisdom is that you should not read too much into questioning at oral argument. (This is because draft opinions are circulated before oral arguments and many justices have already aligned themselves with their favorite.) My bet is still that the Supremes will limit the Fourth Circuit ruling, but from the oral argument, we could end up with some strange bedfellows on the decision. (♫ “Scalia & Ginsburg sitting in a tree, …” ♫ )