That CERCLA Snowball Might Be the Abominable Snowman

Last week I wrote that in Guam v. United States, a case to be heard by the United States Supreme Court today, the United States didn't have a snowball's chance in Guam.  I wasn't alone in that prediction.  Well today Guam received a much chillier reception than I anticipated and that United States CERCLA snowball might be the abominable snowman.

You may recall this is the case in which the United States, as a would be defendant owing to the Navy's construction and use of the now leaking Ordot Dump, is arguing that Guam's statute of limitations clock to sue the United States under CERCLA for response costs started ticking several years earlier when it settled allegations made by the United States as a plaintiff under the Clean Water Act in a consent decree.

Chief Justice Roberts, Justice Kavanaugh, Justice Coney Barrett and, perhaps more surprisingly, Justice Kagan, seemed bothered by the theory of statutory interpretation advocated by Guam's lawyers and I was left wondering how Guam might find five Justices to take its side.  

Justice Thomas may have had the question of the day when he asked whether there was any other circumstance in which parties settle with each other and reserve the right to sue each other.  The fact is that happens in environmental law all the time. 

While the Justices were focused on what the Clean Water Act settlement said about Guam's going forward legal responsibilities, I wish one of the Justices had asked where the Clean Water Act consent decree said anything about the United States's liability for circumstances at least partially of its making.