A Federal Court judge has ruled that Guam can sue the U.S. Government for its share in creating a massive toxic landfill site on the island.
The legal thread in this case goes back to when Guam was a U.S. territory during World War II and shortly after that. The U.S. Navy used Guam as its main base for South Pacific operations. While there, it established the Ordot Landfill as a place to dump hazardous chemicals and munitions of various kinds.
In 1950, the U.S. turned Guam over to civilian authorities. The dump stayed open for another 61 years, closing only in 2011 after Guam’s government made an agreement with the Environmental Protection Agency on how to clean it up and remediate the site.
Even that agreement is a little convoluted, as it was forced when in 2002 the U.S. Environmental Protection Agency eventually filed suit against Guam ordering them to clean it up – or else. With a consent decree finally deciding that suit, Guam agreed for its part to shut down the Ordot landfill, pay a penalty for not closing the site, seal off the discharge of further toxic materials out of the site, and to build a new dump.
A catch in all this is that the most dangerous contaminants from the landfill were brought in by the Navy, not the Guamanian officials. So when Guam began its cleanup process, it sued the United States in 2017 for at least part of the cleanup expenses, since the U.S. government – not Guam – created a major part of the mess there. In its suit, Guam says the U.S. put chemicals such as DDT and Agent Orange in the Ordot landfill. Then, since the landfill was designed even before WWII, there was little focus on environmental protections and sealing off leaks. Guam alleges some of those contaminants oozed out from the dump into the Lonfit River. From there, the toxic waste eventually made it into the Pacific Ocean.
The U.S. appears to have used the 2002 and a follow-up consent decree settling its issues in the case with Guam as a means of sealing off more than just the landfill. It had hoped to use that litigation to seal off any future liabilities in the case for itself.
The U.S. responded to the 2017 lawsuit with a brief claiming that the consent decree Guam signed off on also prevented it from having any claims of its own to settle.
On September 30, U.S. District Judge Ketanji Jackson ruled against the U.S., saying Guam could argue for the U.S. to pay its fair share of the landfill remediation expenses. He said that “It is clear to this Court that, taken together, the terms of the 2004 Consent Decree do not support the conclusion that Guam and the EPA intended to resolve Guam’s liability for any response actions or costs relating to the Ordot Landfill.” He went on to say that, “The parties did not reach an agreement as to whether Guam was liable for the cost of the Ordot Landfill cleanup, much less determine the scope of its liability”. Guam continues to have, the Judge said, what is known as a right to contribution, “which means that it is not precluded from proceeding via a cost-recovery action”.
The U.S. military may have tried to pull a fast one in this matter via its consent decree argument. with this ruling, it needs to “buckle up” and get ready to pay for what it dumped in this once-pristine island. Because, as Elizabeth Barrett-Andersen, Guam’s attorney-general said, “We are now able to continue our environmental law suit against the federal government to recover costs Guam incurred to close Ordot Dump. We have spent over $200 million to date, with millions more expected based on the Receiver’s recent report to the Court that Guam needs to borrow $23 million more.”
Guam is a small island with a population of only 177,000 and annual revenues of only $500 million.