Yesterday, in CTS Corp. v. Waldburger, the Supreme Court held that CERCLA does not preempt state statutes of repose, reversing a Fourth Circuit decision and Ninth Circuit precedent. A statute of limitations extinguishes the right of a claimant to pursue a cause of action after a set period has elapsed after a claim has accrued, while a statute of repose extinguishes causes of action against a defendant after a set period, regardless of whether claims have accrued. 

The effect of the decision is that actions brought under state law for personal injury or property damage related to hazardous substances will be barred by applicable state statutes of repose. In McDonald v. Sun Oil Co., 548 F.3d 774 (9th Cir. 2008), the Ninth Circuit held that CERCLA preempted Oregon’s ten-year statute of repose and reversed the district court’s summary judgment against the plaintiffs on their negligence claim. The outcome will be just the opposite after this decision. Plaintiffs will find their state-law claims barred by statutes of repose regardless of whether a claim has accrued.

The 7-2 decision was authored by Justice Kennedy. Justices Ginsburg and Breyer dissented, arguing that the majority decision will encourage polluters to hide contamination until the repose period has run its course.