Supreme Court considers whether US should pay for Guam hazardous waste cleanup

The Supreme Court on Monday heard arguments about whether the U.S. should pay Guam for hazardous waste cleanup over dumping of waste from the Navy at the territory’s Ordot Dump. 

At issue in the case is whether a 2004 settlement between the countries under the Clean Water Act (CWA) should prevent Guam from pursuing payment under a law that deals with hazardous waste cleanup law known as CERCLA. 

Specifically, the case looks at whether that settlement counts as an action under CERCLA, and therefore prevents additional claims under the law.  

Gregory Garre, an attorney for Guam, argued that CERCLA claims should be treated separately from CWA claims, including because the CWA settlement dealt with discharges of pollutants without a permit, while CERCLA deals with hazardous pollutants with or without a permit. 

He also argued that the agreement reached between the U.S. and Guam didn’t contain language preempting the pursuit of further claims under other environmental laws. 

“The lack of any covenant not to sue and the way in which the settlement preserves the right to bring suit under any claim, I mean, that’s very unusual,” Garre said. “Guam agreed to do some things here, but the United States never relinquished its claims to sue Guam.”

Vivek Suri, an attorney for the U.S. government, argued that the 2004 settlement should cover claims under CERCLA. He argued that what CERCLA defines as a “response action,” isn’t specific to actions taken under CERCLA. 

“If Congress wanted to limit this provision to CERCLA liability, it could easily have said so,” he said. “There’s no such limiting language in the provision at issue here.”

The case is the first in a trio of environmental issues that the court will consider this week.