May 26, 2021
A Washington, D.C.-based Latham team of appellate and environmental lawyers, joined by co-counsel the Attorney General of Guam and John Gilmour and Bill Jackson at Kelley Drye & Warren, LLP, recently secured a historic victory on behalf of the Territory of Guam in the United States Supreme Court. The Court’s decision in Guam v. United States paves the way for Guam to hold the United States accountable for its fair share of the costs of cleaning up a landfill built by the US Navy on the island in the 1940s. In the wake of the Court’s decision – which marks the first time in its history that Guam has defeated the federal government before the Supreme Court – Guam’s Attorney General called it “a big day for Guam and the people of Guam.”
The Navy built the Ordot Dump on Guam during WWII and used it for decades to dispose of military waste, including Agent Orange and DDT during the Vietnam War. When Guam became a territory in 1950, the Navy transferred the dump to Guam for use as a public landfill, but also continued to dispose its own waste there. When it became clear the dump was causing environmental contamination, Guam urged the US Environmental Protection Agency (EPA) to designate the Ordot Dump as a Superfund site and clean it up with federal funds. But instead of using the Superfund to clean up the site, the EPA sued Guam under the Clean Water Act (CWA). That CWA action was settled in 2004. Afterward, Guam began the cleanup, which is estimated to cost upwards of US$160 million, a staggering amount for Guam (and roughly one-fifth of its annual budget).
Guam later sought to hold the United States responsible for its own share of the substantial remediation costs Guam had incurred at the site, given the Navy’s role in building and contaminating the dump. Guam sued the United States under the cost-recovery provision of the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA. But the United States claimed that Guam’s cost-recovery action was time-barred on the ground that the 2004 CWA settlement had triggered the shorter, three-year statute of limitations for CERCLA contribution claims, which had expired before Guam brought suit.
The Washington, D.C. District Court held that Guam’s claims could proceed, but a panel of the D.C. Circuit Court of Appeals reversed. At that point, a Latham team of appellate and environmental lawyers led by Supreme Court & Appellate Practice Chair Gregory Garre joined Guam’s existing counsel (the Attorney General of Guam and John Gilmour and Bill Jackson at Kelley Drye) and filed a petition for certiorari successfully persuading the Supreme Court to grant review. The Latham team then briefed the case in the months that followed, and Garre argued the case on behalf of Guam before the Supreme Court in April 2021. Many in Guam stayed up well into the middle of the next day to listen to the argument live.
This litigation and Guam’s long-running dispute with the federal government over the Ordot Dump has been a matter of intense interest on the Island of Guam. The Guam Daily Post urged the Supreme Court to “favorably close a long chapter in Guam’s history,” and ensure the federal government “pay their fair share of the mess they made in Ordot.”
The case also has been closely watched by private and public environmental lawyers – for potentially responsible parties and States – because of how many environmental settlements could have been held to trigger CERCLA’s contribution provision under the D.C. Circuit’s decision. And a group of 26 States filed a brief supporting Guam. But many lawyers predicted that the government had the upper hand in the case, based on existing precedent and the Supreme Court’s tendency to defer to the government in complex environmental cases.
On May 24, the Supreme Court delivered a complete win for Guam, unanimously reversing the D.C. Circuit’s decision. In an opinion written by Justice Thomas that closely tracks Latham’s briefing and argument, the Court held that CERCLA’s text requires a settlement to resolve CERCLA liability to trigger CERCLA’s contribution provision and its shorter statute of limitations. Because the 2004 CWA settlement did not do so, the Court held, it does not bar Guam’s pending CERCLA claim. The Court’s ruling stressed the importance of reading language in context and recognized the inherent fair-notice problem created by the D.C. Circuit’s decision, under which non-CERCLA settlements under any number of environmental laws could trigger a CERCLA contribution claim. As Guam argued, and several Justices noted at argument, the United States’ position would have created a “trap for the unwary.”
The Court’s decision is a historic win for Guam. It overturns what had been a devastating loss for Guam in a case of huge financial and symbolic importance to the Territory and its people. In proportionate terms, the US$160 million Guam has incurred for the cleanup is equivalent to one trillion dollars for the federal government. Thanks to this decision, Guam can seek to hold the United States’ accountable for its fair share of those costs. Local newspapers have praised the long-due “Justice and Accountability” that the decision makes possible.
On a broader level, the Court’s decision also provides much-needed clarity to CERCLA litigants nationwide. “Now the principles are clearly articulated,” as one prominent practitioner put it, and the law in most circuits has been corrected. The decision also eliminates opportunities for strategic gamesmanship on the federal government’s part in seeking to evade responsibility under CERCLA for its own conduct in contaminating sites (a recurring problem).
In addition to Garre, the Attorney General of Guam, and the Kelley Drye team, the Latham team included partner Roman Martinez and associates Blake Stafford, Brent Murphy, and Soren Schmidt. Stafford led the briefing. In addition, environmental partners Robert Howard and Mary Rose Alexander contributed to the development and presentation of the arguments before the Supreme Court. Other Latham attorneys assisted with moot courts, including partner Melissa Arbus Sherry and associates Samir Deger-Sen and Charles Dameron.