NC law needs to start liability clock with harm is done

June 17, 2014 

The following editorial appeared in the Greensboro News & Record:

U.S. Supreme Court Justice Anthony Kennedy summed up perfectly how a law can be used to protect the guilty at the expense of the innocent.

Writing the majority opinion in CTS Corp. v. Waldburger, released Monday, Kennedy compared a “statute of repose” to protection against double jeopardy because “at some point a defendant should be able to put past events behind him.” It can provide “a fresh start or freedom from liability,” he added.

So North Carolina’s statute of repose protects an Asheville company that left toxic waste behind when it sold property in 1986 with the false promise that it was “in an environmentally clean condition.” Later property owners said they didn’t learn until 2009 that their well water was contaminated with dangerous chemicals from the site.

The statute allows just 10 years after a polluter’s last action for injured parties to file claims for damages. Federal law that would grant more leeway doesn’t override the state statute, the 7-2 Supreme Court majority said.

So the defendant gets to put the whole episode in the past. The victims don’t. Just last week, the Environmental Protection Agency recommended that 13 residents leave their homes because of high levels of trichroloethylene – a cancer-causing chemical traced to the CTS site.

That’s not the “fresh start” they deserve. Good luck to them if they expect compensation from the company responsible for their distress or for the lost value of their property. If they want to sell out, who would buy?

The ruling doesn’t affect only a few families in Asheville. “The federal government, which supported CTS in seeking dismissal of the lawsuit, is now likely to avoid liability for allegedly exposing Marines and their families to contaminated drinking water at Camp Lejeune, North Carolina,” Robert Percival, director of the environmental law program at the University of Maryland, wrote for Bloomberg Law’s SCOTUS blog.

Right on cue, the U.S. Department of Justice immediately asked the U.S. Court of Appeals in Atlanta to dismiss a lawsuit claiming water at Camp Lejeune caused birth defects, cancer and other health problems. Shame on the Obama administration for trying to dodge accountability.

Thousands of people may be denied a path to seek justice – and many more North Carolinians may be exposed to similar risk in the future.

As Justice Ruth Bader Ginsburg wrote in dissent, the ruling “gives contaminators an incentive to conceal the hazards they have created until the repose period has run its full course.”

This is a frightening possibility when North Carolina is inviting the practice of fracking for natural gas.

While the court ruling seems wrongheaded, the problem originates in North Carolina law. Ours is one of a handful of states with a statute of repose. It is too easy on offenders and should be eliminated in favor of a statute of limitations, which starts the clock when harm is done.

If someone is sickened by toxic waste dumped years earlier, he shouldn’t be told it’s too late to press for damages. The injury is fresh, even if the crime is old.

Allowing a defendant “a fresh start or freedom from liability” is an injustice if the defendant has never been held accountable. The injured parties don’t get to put the past behind them.

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