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Uncertifiable: Battle Over North Carolina’s Statute of Repose in CERCLA Cases Makes for Strange Bedfellows

It was a pleasant surprise this morning to discover that the Maryland State Bar Association’s Maryland Appellate Blog was discussing a point of North Carolina appellate practice and procedure.

The impetus of the discussion was the United States Supreme Court’s recent decision in CTS Corp. v. Waldburger, where the Court was called on to decide whether the express preemption of state statutes of limitations set forth in the federal superfund environmental clean-up law known as CERCLA also applies to state statutes of repose.  At stake was a lawsuit by certain Asheville, North Carolina homeowners who discovered that their well-water was contaminated by toxic chemicals buried on their property by an electronics plant that had sold the property decades before.  The lawsuit was brought 24 years after the defendant sold the property.  North Carolina has a 10-year statute of repose, which the defendants argued barred the plaintiffs’ lawsuit.  Plaintiffs argued that North Carolina’s statute of repose, like statutes of limitation, was preempted by CERCLA.  A 5-4 United States Supreme Court sided with the defendant, holding that North Carolina’s statute of repose was not preempted by CERCLA, and that the plaintiffs’ claims were barred by North Carolina’s statute of repose.

The plot thickens because dozens of U.S. Marines and their families were exposed to toxic groundwater on Camp Lejeune.  Numerous lawsuits have been filed against the Department of Defense by these injured veterans.  The same day that the U.S. Supreme Court issued its decision in CTS Corp., the Obama administration sought to have the Lejeune lawsuits dismissed in light of CTS Corp.  (Note: in CTS Corp., the Obama administration’s DOJ sided with the polluting defendants in advocating for a narrow reading of CERCLA –strange bedfellows, take one?).

Now if anything is going to get a North Carolina politician hot and bothered, it is the idea that North Carolina is not pro-military.  Within two weeks of the Supreme Court’s CTS Corp. decision, both houses of the General Assembly unanimously approved legislation that “clarifies” that North Carolina’s statute of repose was never intended to exempt tort cases involving contaminated groundwater.  In other words, the United States Supreme Court (and I believe every federal judge who looked at this issue) completely misinterpreted North Carolina’s statute of repose. North Carolina’s statute of repose was never intended to bar the Lejeune case and the Republican-controlled legislature is going to step in to make sure that polluting defendants don’t escape their day in court.  Strange bedfellows, take 2?  (You can read more of the bill sponsors’ comments here and here and here).

This is where the Maryland blog raises a good question: If the “proper” interpretation of  North Carolina’s statute of repose would have avoided this complicated and divisive CERCLA preemption question, why didn’t any federal judge think to certify the question to the North Carolina Supreme Court?  You already know the answer:  Because North Carolina is one of only two states that does not have a certification procedure.

Take a look at the Maryland blog’s take on the lack of a certification process in North Carolina. Do you agree that North Carolina’s General Assembly (which has already shown a propensity to tinker with the North Carolina Supreme Court’s docket) should pass a certification statute?  Do you think the statute is likely to be upheld by the North Carolina Supreme Court?

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4 Responses to "Uncertifiable: Battle Over North Carolina’s Statute of Repose in CERCLA Cases Makes for Strange Bedfellows"

  • Matt Leerberg
    June 20, 2014 - 6:46 pm Reply

    I would think the Supreme Court of North Carolina would be concerned with statutes purporting to narrow its jurisdiction. We also know that the Court has been skeptical about statutes that purport to control the procedures that govern appellate review (e.g., the revisions to the motion in limine statute that were found unconstitutional). But certification raises neither of those concerns. Instead, certification would create a small class of cases in which the highest court in our State would be called upon to provide an opinion that may very well be dispositive of a case pending in federal court but implicating North Carolina substantive law. A careful statute might also give the Court the option to decline to answer the certified question, just as the court might decline a petition for discretionary review of a North Carolina Court of Appeals decision.

  • Peter
    June 23, 2014 - 5:58 pm Reply

    So the issue before the 11th Cir. in Bryant v. U.S.–whether the Lejuene plaintiffs’ claims against the U.S. are barred by the NC statute of repose–will become moot?

    • Beth Scherer
      June 23, 2014 - 6:26 pm Reply

      Peter–That is clearly the intent of the legislation, although I suspect the DOD is not going to accept that reversal of fortunes without a fight.

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