SCOTUS: Guam can Seek Contribution from US Navy for Dumping Toxic Waste at Ordot Dump

May 25, 2021- Tamuning, Guam- The Supreme Court of the United States (SCOTUS), in a unanimous 9-0 decision, has ruled in favor of Guam, stating that the United States Navy can be held accountable and pay its fair share of the cleanup costs for dumping toxic waste into Ordot Dump for decades. This is believed to be the first case involving GovGuam that SCOTUS has agreed to hear in over 15 years and it is part of the less than 1% of cases heard every year.

Attorney General Leevin Taitano Camacho said, “The Navy and the federal government must finally admit to us, the People of Guam, that they contributed to the toxic damage to our environment. We will put our best case forward and seek accountability for their fair share. We look forward to our day in court.”

Attorney John Gilmour of Houston-based law firm, Kelley Drye & Warren, who will continue representing Guam at the trial court in Washington D.C., said, “This ruling is huge for the people of Guam. We have been working with the Attorney General’s office for more than four years on this case. We knew from the beginning that the statute of limitations argument was critical and we framed our entire strategy around this issue. We are so excited that the Supreme Court unanimously agreed with us that the United States must face this issue and address Guam’s claims that the United States pay its fair share.”

The Navy, without any environmental safeguards, built and operated Ordot Dump beginning in the 1940’s and then ceded control of the site to the Government of Guam. The US Environmental Protection Agency then sued GovGuam under the Clean Water Act (CWA) for failing to clean up the site. Guam could not countersue the federal government for contribution under the CWA. A settlement agreement in 2004 required Guam to cap and close the dump, open a new landfill, and pay a civil penalty.

Guam then sued the Navy in 2017 under a different law, the Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA), in an attempt to hold the federal government accountable for its contributions in dumping toxic waste at the Ordot site. Gilmour and Attorney Bill Jackson represented Guam before the DC trial court.

The Navy challenged Guam before the District of Columbia Court of Appeals, arguing that Guam’s lawsuit was filed too late because the 2014 settlement agreement (in the non-CERCLA case) started a three-year clock. The DC Court of Appeals agreed with the Navy, blocking Guam’s ability to proceed with trial.

Guam appealed to the U.S. Supreme Court in August 2020 seeking review of the DC court’s ruling. Gregory Garre from Latham & Watkins, LLP argued for Guam before SCOTUS in April and a bipartisan coalition of 26 attorneys general led by Commonwealth of the Northern Mariana Islands’ (CNMI) Attorney General Edward Manibusan filed an amicus brief supporting Guam. One of the central questions in this case is whether the non-CERCLA settlement agreement could create a time bar under CERCLA. Justice Thomas delivered the Opinion of the Court, writing, “… a party may seek contribution under CERCLA only after settling a CERCLA-specific liability… we thus reverse the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.”

Guam must submit a status report to the Department of Justice within the next 30 days.