Oral Arguments Held Before the U.S. Supreme Court on Kelley Drye’s CERCLA Case for Guam

On Monday, April 26, 2021, oral argument was held before the Supreme Court of the United States on a Comprehensive Environmental Response Compensation Liability Act (CERCLA) case brought on behalf of the Territory of Guam by Kelley Drye.

For nearly half a century, the United States military discarded toxic waste, including munitions, at the Ordot Dump, which was created by the U.S. military before World War II without any environmental safeguards. The dump was owned and operated by the U.S. military before it was transferred to the newly-created Government of Guam in 1950.

In 2004, the United States forced Guam to close and clean up the Ordot Dump, as well as open a new landfill. The United States sued Guam under the Clean Water Act (CWA) (under which the United States retains its sovereign immunity) instead of the CERCLA (under which the United States has waived its sovereign immunity and would be a responsible party for the cleanup) forcing Guam to foot the entire bill. The clean-up and relocation project has cost Guam more than $160 million—an amount equivalent to one trillion dollars when extrapolated from Guam’s annual budget and compared to the United States’ annual budget.

Due to Kelley Drye’s reputation as having one of the most sophisticated and successful environmental and natural resource damages litigation practices in the country, Guam retained Kelley Drye to bring an action against the United States to recover a portion of the costs of closing, remediating, and relocating the Ordot Dump. The Kelley Drye team of John Gilmour and Bill Jackson brought suit against the United States pursuant to CERCLA in 2017, seeking to hold the United States accountable for its share of the cleanup, closure, and relocation costs.  Recognizing that several significant legal questions relating to the CERCLA statute of limitations that have split the Circuit Courts of Appeal permeated the case, Kelley Drye and Guam drafted the operative Complaint to invite a motion to dismiss on these significant legal issues. The United States filed a motion to dismiss on these statute of limitations issues which Guam successfully defeated at the U.S. District Court for the District of Columbia as detailed in an opinion by Judge Ketanji Brown Jackson.  The United States sought interlocutory appeal and the District Court’s decision was overturned by the D.C. Circuit Court of Appeals.

After the D.C. Circuit’s decision, Kelley Drye partnered with the Latham & Watkins Supreme Court practice in seeking certiorari from the U.S. Supreme Court. The Court granted certiorari in January 2021, Guam filed its opening brief on Monday, February 22, 2021, the United States filed its responsive brief on March 24, 2021, and Guam filed its reply brief on April 16, 2021.

Oral argument was held on April 26, 2021, and a decision by the Court is anticipated by the end of June. Our team is confident in our positions and looks forward to the Court’s decision.