The Story of the Fight for Justice for Camp Lejeune Victims
Congress’ passage of the PACT Act was the culmination of a decades-long struggle for victims of groundwater contamination at Camp Lejeune to get justice for their injuries in the form of financial compensation. Congress had to get involved because a North Carolina state law prevented victims from filing a legal action against the United States Government. For years, injured service members and their families could not get justice when the government’s negligence and recklessness exposed them to grave harm. In the end, it took over two decades, and justice still has not been fully served.
Over Three Decades of Exposure to Toxic Substances
Camp Lejeune servicemembers and their families were exposed to extremely toxic groundwater for nearly 35 years. Even after the government decommissioned the contaminated water treatment plants, it still did not reveal anything about the contamination to people who were affected by it. It was not until the latter part of the 1990s that the government finally said anything to people who needed to know.
Illnesses Associated with Toxic Camp Lejeune Water
Camp Lejeune water contamination has been tied to a number of serious illnesses, including:
- Adult leukemia
- Aplastic anemia and other myelodysplastic syndromes
- Bladder cancer
- Kidney cancer
- Liver cancer
- Esophageal cancer
- Multiple myeloma
- Non-Hodgkin’s lymphoma
- Parkinson’s disease
A North Carolina Law Kept Families from Getting Justice
The problem was, by that point, there was little that the families could do. The central issue in all of these cases that kept families from suing was a North Carolina law that imposed a ten-year statute of repose on these cases. This law specifically dealt with time limitations on cases related to pollution. Water contamination cases were considered to be pollution cases.
A statute of repose is different from a statute of limitations. In a statute of repose, the passage of time completely takes away a legal right. The statute of limitations is a procedural rule that puts an expiration date on the right you have. In this case, the passage of time robbed victims of the ability to file a lawsuit.
The law stated that polluters could not be held liable in a lawsuit after ten years had passed since their last act of pollution. For Camp Lejeune victims, this completely barred all lawsuits. The last act of pollution was in 1987 (which was six years after the government had already known about the treatment plant contamination). It did not matter that the government waited over a decade to inform victims of the contamination. There was no exception to the law that allowed families to sue, despite the fact that they did not learn of the contamination until decades after they were exposed.
Families Were Kept in the Dark as Their Legal Rights Evaporated
The Marine Corps first learned of the potential contamination in 1982. They did not immediately shut down the contaminated wastewater treatment plants. This was a tragic decision considering the long and honored history of camp lejeune. They waited five years to do so. Despite the fact that this may have been one of the largest water contamination events in U.S. history, the Marine Corps said nothing to the State of North Carolina until 1989. The general public was kept in the dark about the threat to which they were exposed. They did not learn until years later that the source of their illnesses was contaminated drinking water.
Families fought a long legal battle for justice without any results. About a decade ago, families had filed multidistrict litigation, seeking compensation for Camp Lejeune water contamination. This case never reached the merits because of the North Carolina law.
The Supreme Court Seemingly Stripped Victims of Their Rights
Another case that went all the way to the United States Supreme Court slammed the door shut on any possible compensation until the law was changed. Although the Supreme Court case did not directly involve Camp Lejeune claims, the impact of the case was precedential and very clear. Even as Camp Lejeune cases were consolidated and appeared to be moving forward, the Court put an abrupt end to it.
The case in front of the Supreme Court was CTS Corp. v. Waldburger. In that case, the Supreme Court was asked to decide which rule applied, a two-year statute of limitations for pollution (after the victim knew or should have known that they were exposed) under the Superfund law, or the North Carolina law that imposed the ten-year rule for pollution cases. Even as the federal government was allowing for VA benefits for injured service members, it was joining the case on behalf of the polluters to ask the court to side against the plaintiffs. The government and polluters got their way.
In this case, the Supreme Court reversed the Fourth Circuit’s holding that the statute of limitations provision in CERCLA pre-empted the statute of repose in the North Carolina law. CERCLA has a statute that preempts state statutes of limitations in lawsuits regarding exposure to toxic substances. The Fourth Circuit had found that this law was ambiguous, and the court had fallen back on a general policy that the purpose of an environmental statute was to right previous wrongs. Therefore, the Fourth Circuit held that the federal statute of limitations on CERCLA preempted the North Carolina law.
In a 7-2 decision, the Supreme Court explained that a statute of limitations and a statute of repose were two different things. Had the North Carolina law been a statute of limitations, it would have been preempted by CERCLA. However, a statute of limitations and a statute of repose have two different purposes. A statute of repose is meant to protect the polluter from perpetual liability.
The immediate short-term practical effect of Waldburger was that the courthouse door was barred to plaintiffs who wanted justice and financial compensation for their injuries.
There were two parts of the effort for Camp Lejeune victims to obtain both care and justice. The immediate concern was over providing health care for people who were sickened by the contaminated water. Even though that effort had popular support, it still took three years to become law, a reflection of how slowly things can move on Capitol Hill.
A Bereaved Father Led the Fight for Justice
North Carolina representatives initially began the effort for health care back in 2009 by proposing the Caring for Camp Lejeune Veterans Act of 2009. The bill was not passed during that session of Congress. Nonetheless, there was a continued push to do something to help the victims of the Camp Lejeune water contamination. The Veterans Administration had opposed the efforts to provide health care, arguing that not enough was known yet about the effects of the water contamination.
In the meantime, a father who lost his nine-year old daughter to cancer began an online petition to call on the federal government to provide healthcare. The girl died in 1985. The father did not learn that her death may have been caused by contaminated drinking water until many years later. He led the efforts to put this issue on the public’s radar screen and effect change.
In the years since, Marines stationed at Camp Lejeune and their families shared even more stories of people who were affected by serious illnesses. One statistical study found that Camp Lejeune, with its contaminated water, had elevated hazard mortality ratios compared to Camp Pendleton, which did not have contaminated water. Nonetheless, the Marine Corps continued to deny how severe the problem was in light of mounting evidence to the contrary. Even several government reports, including one from the watchdog Government Accountability Office, were not enough to spur action to do right by wronged families.
The legislation was reintroduced in the 112th Congress. This time it passed, and President Obama signed the bill into law.
The Janey Ensminger Act (named for the girl who died) authorized the federal government to provide healthcare to people who lived at Camp Lejeune between 1957 to 1987 and developed health conditions related to the water contamination. Up to 750,000 may have been eligible to receive this health care.
This law did not address lawsuits against the federal government. At that time, there were no large efforts to hold the federal government legally accountable. The first large lawsuits were being filed right around that time, and there were not yet any court decisions that would have denied victims the right to sue.
The VA Granted the Right to Benefits, but Did Not Live Up to its Promise
The healthcare benefits were not enough to compensate and care for injured veterans. In 2017, the Veterans Administration published a rule that paved the way for veterans who suffered from one of the eight illnesses associated with the contaminated Camp Lejeune water to obtain disability benefits. Since the benefits came from an administrative rule rather than from a law passed by Congress, the agency had much more discretion. It did not use this discretion to help injured servicemembers.
Even though the mechanism was in place to provide benefits for veterans, they proved much harder to obtain in practice. The Veterans Administration was making life far more difficult for veterans than was reasonable or fair. Several investigations found that the VA was denying more claims than it approved, leaving disabled and injured veterans empty-handed. At the same time, legal efforts to get compensation from the federal government were stalled because of the Supreme Court’s decision.
It had become clear that the only way that injured victims could file a lawsuit against the government was if Congress passed a law that specifically addressed the situation and pre-empted the state law. Under the Supremacy Clause of the United States Constitution, federal law preempts state law if there are two laws, and they are in conflict with each other. If there is no federal law on point, then the state law would apply.
The Camp Lejeune Justice Act Begins to Close the Loop on a Terrible Chapter
It was not until years after the Supreme Court’s holding in CTS Corp. v. Waldburger that Congress began to consider a legislative solution. In October 2021, Rep. Matt Cartwright (D-PA) introduced the Camp Lejeune Justice Act of 2021. The bill picked up 162 co-sponsors from both parties. \The text of the bill created a federal cause of action for families to file a lawsuit. This was a way around the state law of repose. Under the Supremacy Clause, the federal law would not apply, since it was a direct statement on point that would preempt the state law. In addition, the legislation expanded the list of health conditions that would allow sickened veterans to receive health care from the federal government.
There was general consensus among legislators from both parties that the Camp Lejeune Justice Act should become law. Eventually, it was passed by Congress, but it still needed a procedural vote to be finalized.
After a Long Delay, the Camp Lejeune Justice Act Is Finally Law
As often happens in Congress, bills are added as sections of other larger bills, both for convenience and to minimize the number of votes. The Camp Lejeune Justice Act was added as a section of the PACT Act, a law which provided healthcare for service members who were sickened by exposure to toxic burn pits in Iraq and Afghanistan. Initially, the bill was expected to become law in short order, even though there were a number of delays.
Before the final passage of the bill, there was a political dispute between the Democrats and Republicans over an unrelated bill. As a result, the Republicans did not allow the PACT Act to proceed past a procedural vote. However, the bill was brought up again for a vote the following week, and it was passed by a large Senate majority. President Biden signed it into law shortly thereafter.
All in all, the battle to put Camp Lejeune victims in a position to get justice lasted for more than a decade. It is still not over until the last victim is fully compensated.
While the Camp Lejeune Justice Act is now law, and it is a huge step on the road to justice, the fight is not over for impacted families. Now, you have to actually file the lawsuit against the federal government for compensation. The government has already estimated the potential damages, and there is money appropriated to pay settlements. Still, you must take action to get the money that you legally deserve after the government exposed you to serious harm. Many people have fought for you to have the right to get justice – now is the time to do something about it.