Timing Is Everything: An Overview of Environmental Claims and Their Limitations Periods: Part I – Federal

In the United States, federal and state governments enforce a variety of environmental laws and regulations that prohibit different types of activities that may harm people or the environment. These environmental laws and regulations provide for different types of environmental claims, although the ultimate subject of such claims is often rooted in property damage concepts, including nuisance and trespass. As a result, responding to such claims, requires expert investigation to discover the contaminants/pollutants, as well as to delineate them, determine their source, and assess the extent of their impacts. As a result, environmental contamination/pollution may be discovered years, if not decades, after the initial incident. Accordingly, the limitations period applicable to many environmental claims is crafted to accommodate the unique nature of such claims and provide a deadline by which a party must commence a legal proceeding for environmental contamination/pollution.

This article is the first in a three-part series that considers the different types of environmental claims and the relevant and applicable limitations periods. This article will begin at the federal level, while the next two articles will continue the discussion at the state level and in the context of citizen suits.

There is a general federal statute of limitations that often applies to civil enforcement of environmental claims at 28 U.S.C. § 2462 (the “Federal Civil Limitations Period”), which provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued . . . .” There is also a general federal statute of limitations that often applies to criminal enforcement of environmental claims at 18 U.S.C. § 3282(a) (the “Federal Criminal Limitations Period”), which provides that “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.”

These five-year limitations periods apply generally to many environmental claims, including those arising under major environment laws, such as (1) the Clean Air Act,[1] (2) the Clean Water Act,[2] and (3) the Resource Conservation and Recovery Act.[3] However, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) is one major environmental statute with its own unique limitations periods.

CERCLA authorizes the president to respond to, and remediate, releases or threatened releases of hazardous substances, pollutants, or contaminants into the environment and to hold the parties connected to those sites, referred to as “potentially responsible parties” (“PRPs”), responsible for the cleanup costs. CERCLA provides two provisions that allow parties that incur cleanup costs to recoup all or part of their costs from PRPs, including (1) cost recovery actions under CERCLA § 107(a)(4),[4] and (2) contribution actions under CERCLA § 113(f).[5]

CERCLA § 107(a)(4) allows any person to sue a PRP, in a lawsuit referred to as a “cost recovery action,” to recover “any other necessary costs of response” that that person has incurred. Cost recovery actions are subject to two limitations periods, including (1) for “removal” actions, where the plaintiff must seek to recoup costs within three years “after completion of the removal action,”[6] or (2) for “remedial” actions, where the plaintiff must seek to recoup costs within six years after “initiation of physical on-site construction of the remedial action.”[7]

CERCLA § 113(f), on the other hand, allows a PRP that has been required to pay response costs to someone else to assert a contribution claim against other PRPs in court to compel those other PRPs to bear an equitable share of those costs. Contribution actions under CERCLA § 113(f) are subject to a three-year statute of limitations, which begins on “the date of judgment in any action under [CERCLA] for recovery of [response] costs”[8] or the “entry of a judicially approved settlement with respect to such costs.”[9]

Although CERCLA § 113(f) establishes a clear mechanism and limitations period for contribution claims, uncertainty has remained regarding what types of settlements are sufficient to trigger the right to contribution. In 2021, the U.S. Supreme Court (the “Court”) considered whether a party must resolve a CERCLA-specific liability to trigger the right to contribution, or whether a broader array of settlements involving environmental liability will do.[10] In doing so, the Court held that CERCLA’s three-year statute of limitations for contribution claims under CERCLA § 113(f)(3)(B) is triggered only by a settlement that resolves CERCLA liability, not by a consent decree under another environmental statute, such as the Clean Water Act.[11] As a result, the Court significantly narrowed when contribution claims accrue.

It is important to note that these are simply examples of the limitations periods for various environmental claims, and that actual limitations periods may vary depending on the type of environmental claim, as well as the specific facts and the jurisdiction. We encourage clients to reach out to us if they have questions regarding the applicable limitations periods for any environmental claims brought against them.

[1] 42 U.S.C. §§ 7401(b)(1) et seq. The Clean Air Act (the “CAA”) is the primary federal law that regulates air emissions “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare[.]” The CAA authorizes the U.S. Environmental Protection Agency to establish National Ambient Air Quality Standards to protect public health and public welfare and to regulate emissions of hazardous air pollutants.

[2] 33 U.S.C. §§ 1251(a) et seq. The Clean Water Act (the “CWA”) is the primary federal law that governs the restoration and maintenance of the “chemical, physical, and biological integrity of the Nation’s waters” by working to prohibit the discharge of pollutants into waters of the United States, except in compliance with a permit. The CWA establishes several major integrated regulatory programs, standards, and plans.

[3] 42 U.S.C. §§ 6091 et seq. The Resource Conservation and Recovery Act regulates the handling, storage, treatment, and disposal of hazardous waste. 

[4] 42 U.S.C. § 9607(a)(4).

[5] 42 U.S.C. § 9613(f).

[6] 42 U.S.C. § 9613(g)(2)(A).

[7] 42 U.S.C. § 9613(g)(2)(B).

[8] 42 U.S.C. § 9613(g)(3)(A).

[9] 42 U.S.C. § 9613(g)(3)(B).

[10]Territory of Guam v. U.S., 593 U.S. 310, 313 (2021).

[11]Id. at 315.