Limitations v.  Repose

The U.S. Supreme Court held today that Congress preempted "statutes of limitations" — but not "statutes of repose" – for toxic tort cases.

The Court explained that limitations periods require plaintiffs to bring claims promptly but that repose statutes aim to free defendants from worry. CTS Corp. v. Waldburger, No. 13-339 (U.S. June 9, 2014) (construing 42 U.S.C. § 9658).

Section 9658

Congress passed the preemption provision as part of the Comprehensive Environmental Response, Compensation, and Liability Act. The provision concerned "any action brought under State law for personal injury, or property damages, which are caused or contributed to by any exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility". 42 U.S.C. § 9658. It preempted an action under state law "if the applicable limitations period for such action" called for a "commencement date" before the plaintiff knew or reasonably should have known that the toxic stuff caused or contributed to her personal injury or property damages. Id. (emphasis added). The later "federally required commencement date" in that event applied, lengthening the time for filing suit.

Writing for the 7-2 Court, Justice Anthony Kennedy conceded that courts, lawyers, dictionaries, and Congress haven't always made a sharp distinction between "limitations" and "repose". But he concluded that Congress's reference to "limitations period" in section 9658 meant the legislature didn't intend to preempt statutes of repose.

The Court accordingly affirmed dismissal of a toxic tort lawsuit claiming contamination that ended at least 24 years before the filing of the case. That the plaintiffs apparently did not know of the contamination until shortly before suing did not matter. The North Carolina 10-year statute of repose barred the claim, the Court ruled.

Implications

Federal laws that preempt state "limitations" periods will not, under the Court's ruling, save cases that run afoul of "repose" periods. Blawgletter does not know of any statutes, other than CERCLA, that contain a similar preemption provision. But the case could have a big effect on pollution cases, which often arise when an event occurring long after the contamination took place reveals the carcinogens and other nasty substances beneath the ground.