Reposted with permission: from Lou Freshwater
Overview: A Supreme Court case next week will have long-lasting implications. It could provide precedence as a place for polluters to hide. It could prevent veterans and citizens from seeking justice. But it could also be used to shift the balance of power in Washington.
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In a case to be heard before the Supreme Court on April 23, President Obama has filed an amicus brief specifically designed to prevent Marines and their families from recovering damages for the disease and death caused by decades of exposure to toxic chemicals in their drinking water at Camp Lejeune, North Carolina—the most massive groundwater contamination in U.S. history.
Obama’s politically perverse position in this case could easily cost the Democrats control of the Senate this fall, starting with North Carolina’s own highly vulnerable Senator, Kay Hagan.
If the Supreme Court sides with Obama’s request, the decision will also empower all of the country’s corporate polluters, such as those on another brief: The American Chemistry Council, The American Coatings Association, The American Petroleum Institute, The National Association of Manufacturers, and the Precision Machined Products Association.
The sordid story behind this case, Waldburger v. CTS Corporation, begins in North Carolina almost 400 miles west of Camp Lejeune, where the CTS Corporation’s electroplating operations contaminated the ground water. CTS sold the property in 1987, but the subsequent landowners did not discover the contamination until 2009, and brought suit against CTS in 2011.
As it happens, Congress had already wrestled mightily with such contamination problems back in 1980 with the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The bill provided for federal pre-emption of state “statutes of limitation” in cases where the victims did not discover they had been injured until years later.
But like some other states, North Carolina also had a “statute of repose” on the books that provided that anyone injured by an activity like CTS’s groundwater contamination had to bring suit with 10 years of last date on which CTS committed its damaging act. CTS argued that because Congress did not specifically mention a federal override of state “statutes of repose,” the federal law did not override North Carolina’s 10-year statute of repose. The district court agreed, and threw out the lawsuit.
When the landowners appealed, the Department of Justice had a shocking surprise for the people who’d been fighting to force the Marines to take responsibility for the contamination at Camp Lejeune. In an amicus brief filed on August 16, 2012, with the 4th Circuit of Appeals, DOJ was blunt:
The United States also has a particular interest in the interaction of CERCLA with the North Carolina statute of repose because of ongoing litigation against the United States under the [Federal Tort Claims Act] involving allegations of contaminated drinking water at the Camp Lejeune Marine Corps Base in North Carolina.
The judges of the 4th Circuit Court of Appeals looked at the Congressional debate over CERLCA, and ruled 2-1 in favor of the landowners. As the majority noted, their historical analysis showed that “both scholars have often used the terms [‘repose’ and ‘limitations’] interchangeably.” The majority concluded:
In light of this charge, we reject a reading of § 9658 that excludes application of its provisions to North Carolina’s ten-year limitation. Such an interpretation may seem to be textually sound under one possible reading of the statute, but it offers too narrow an approach and one that thwarts Congress’s unmistakable goal of removing barriers to relief from toxic wreckage.
On April 23, 2014, the Supreme Court will hear oral arguments on CTS’s appeal of the 4th Circuit’s ruling. And once again, DOJ has filed an amicus brief repeating the administration’s pusillanimous concern about litigation at Camp Lejeune.
This latest DOJ brief stands in bitter contrast to Obama’s August 6, 2012 decision to sign the Janey Ensminger Act of 2012, which provides more medical care for the hundreds of thousands of potential victims at Camp Lejeune. (Obama signed this law only 10 days before the DOJ filed its completely contradictory brief with the 4th Circuit.)
The law is named after the daughter of retired Marine Staff Sgt. Jerry Ensminger, who has spearheaded the fight to hold the Marines accountable after Ensminger learned that the poisoned water likely caused the leukemia that killed his nine-year old daughter in 1985.
Obama’s perfidious position before the Supreme Court is a Republican campaign consultants’ dream come true. Just weeks ago, prognosticator Nate Silver sent a wave of fear through the Democratic establishment when he announced that his latest calculations showed that the Republicans are now likely to gain a one-seat majority in this fall’s elections.
Senator Majority Leader Harry Reid and Democratic Senatorial Campaign Committee Chair Michael Bennett might want to have a word with President Obama before April 23rd. At the very least, they should demand that he withdraw his amicus brief, or even better, replace it with an amicus brief that shows that the Democratic Party is on the side of the victims of Camp Lejeune.
As the stepdaughter of a Marine, I drank the contaminated water at Camp Lejeune from 1979 to 1983. My mother bore two children with fatal neural tube defects, and died from two types of leukemia. I serve on the Community Assistance Panel (CAP) on Camp Lejeune, a panel created by the Center for Disease Control’s Agency for Toxic Substances and Disease Registry (ATSDR).