Aug. 11, 2021 – After fighting for years to get the United States to pay its fair share of remediation costs of military waste left on Guam, University of Houston Law Center alumnus and former UH Law Alumni Association President Bill Jackson ’92 delivered for the U.S. territory in a U.S. Supreme Court case that was decided 9-0.
“Guam has been a territory of the United States since 1898, when the US captured the island as part of the Spanish-American War,” Jackson said. “Sometime prior to World War II, the United States began dumping military and civilian waste on island in the Ordot Valley and, after the war, the Navy continued to use the ‘Ordot Dump’ for decades.”
The site was owned by the U.S. until 1950, when the U.S. transferred ownership of the dump to Government of Guam, which continued to use the site for municipal waste. Contamination from dump leachate discharged into the Lonfit River and Pago Bay, and Guam asked the U.S. to list the site as a Superfund Site and assist in cleaning it up.
“Instead, the U.S. pursued Guam under the Clean Water Act and required Guam to address the discharge from the dump without any federal contribution,” Jackson said. “The U.S. has not waived its sovereign immunity under the Clean Water Act, and the decision to pursue Guam under the Clean Water Act, rather than under the Superfund law, was legally significant; the U.S. ordered Guam to pay over $160 million in remediation costs, shifting all responsibility to the small island territory.”
In 2017, Guam hired Jackson and Kelley Drye & Warren LLP to bring suit against the United States under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where Congress did waive the United States’ sovereign immunity. Guam sought through the litigation to require that the United States pay for its fair share in cleanup, closure and relocation costs expended by Guam on the Ordot dump.
The U.S. moved to dismiss Guam’s complaint on the basis that it was time-barred, arguing that the 2004 Clean Water Act Order had triggered Guam’s contribution rights under CERCLA. The district court denied the United States’ Motion to Dismiss, but the D.C. Circuit Court of Appeals reversed, holding Guam’s claims were time-barred by over a decade. In a rare 9-0 decision, the United States Supreme Court overturned the D.C. Circuit in May and held that the resolution of another environmental liability – such as Guam’s under the Clean Water Act – did not trigger Guam’s contribution rights under CERCLA.
“We were thrilled that we received a 9-0 verdict,” Jackson said. “You just don’t expect 9-0 verdicts out of a court that is so polarized in other areas. We are so happy for Guam because this is such a huge issue on the island, both financially and to achieve some level of justice for the people of Guam. Now, we can go forward with Guam’s claims and seek contribution from the U.S.”
Jackson is a partner at Kelley Drye & Warren LLP, co-chair of the firm’s national environmental law practice group and member of the firm’s executive committee. He is actively involved in a variety of civic and community organizations focused on issues impacting quality of life and the environment. Jackson also recently chaired the UH Law Foundation’s successful Law School Building Campaign and served on the University’s $1.2 billion “Here, We Go” capital campaign.