This week, there are two cases before the Supreme Court of the United States that environmental and energy attorneys and other industry stakeholders should be watching closely. The cases cover a broad range of concerns – including the CERCLA statute of limitation, eminent domain, sovereign immunity, and the 11th Amendment – and are as follows:

In Territory of Guam v United States (Case number 20-382) – Guam wants the U.S. Navy to contribute to a $160M landfill cleanup. In 2004, Guam and the United States reached a Consent Decree under the Clean Water Act over the contaminated Ordot Dump, which was leaching waste into nearby waterways. The former municipal dump/landfill had been owned by the U.S. Navy.  Guam filed suit under CERCLA to recover the $160M in costs it had incurred. The U.S Court of Appeals for the District of Columbia said the 2017 suit for contribution under CERCLA was too late as the 2004 Settlement started the three (3) year statute of limitations under Section 113 of CERCLA. Guam argued in its briefs that the 2004 Consent Decree made no reference to CERCLA and that the D.C Circuit incorrectly held that the three-year statute of limitations was triggered. Guam argues that it is seeking to recover costs under Section 107(a) of CERCLA, which provides for parties to recover remediation costs from other responsible parties within six years of the initiation of a remedial action. Guam argues that the “initiation of the remedial action began in 2013 after the landfill was closed and thus their contribution action is within the six-year statute of limitation provided in Section 107(a) of CERCLA.

This case is being closely watched because if the Supreme Court accepts the federal government’s argument, it could deter the future settlement of environmental CERCLA claims if the three-year time limit is found to apply in cases where parties are seeking contribution for remediation costs from other responsible parties.

In PennEast Pipeline Co. LLC v State of New Jersey et al. – (case number 19-1039), the developer of the $1B PennEast pipeline requested the US Supreme Court to overturn the Third Circuit’s prior holding the developer can’t seize the New Jersey owned land for the pipeline project. In a September 2019 decision, the U. S Court of Appeals for the Third Circuit held that a 1938 law called the Natural Gas Act (15 USCA 717(f)) doesn’t allow for the developer to condemn land controlled by New Jersey. The Federal Energy Regulatory Commission had granted the developer eminent domain authority to take the property. New Jersey argues that its 11th Amendment sovereign immunity protects it from condemnation suits by private companies. The developer also argued that the Third Circuit didn’t have jurisdiction to even consider the case. This jurisdictional issue will be one of the issues decided by the Supreme Court. New Jersey argues that the lower court had proper jurisdiction to conclude that the Constitution doesn’t allow private companies to sue under the NGA and, moreover, that the NGA doesn’t provide authority for companies to sue states under the NGA.

This case is being watched for a variety of reasons, including the federal government’s powers to condemn property under its eminent domain authority versus the state’s 11th Amendment sovereign immunity protections from federal interference.