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Environmental Law

​In a 7­-2 decision recently, the United States Supreme Court decided that North Carolina’s statute of repose is not pre-­empted by federal environmental laws. The case involved responsibility for environmental contamination at the former CTS site in Asheville and the ruling is a decimating result for all of those affected by environmental hazards.

A number of affected homeowners sued CTS for various injuries, and their claims were dismissed because North Carolina has a law – the statue of repose – that requires all tort suits for injury to person or property must be brought within 10 years after the last culpable act of the defendant. The statute of repose, different from a statute of limitations, is an absolute deadline for filing claims, regardless of when the claim was discovered. In the CTS case, the plaintiffs did not discover the contamination or their injuries within that 10­ year period, and the lawsuit was brought 24 years after CTS sold the property.

The ruling is notable because it is one of the few times the Supreme Court has held that federal law does not trump state law. The ruling also is notable on the impact it will have on other suits for damages resulting from environmental contamination, such as the current suit involving contamination at Camp Lejeune.

How does North Carolina analyze its own statutes of repose? In 2013, the North Carolina Court of Appeals held that the six­ year statue of repose for suits for damage to improvements to real property (including homes) precluded homeowners from suing on a 20 year warranty. That’s right. The homeowners were given a 20 ­year warranty on an exterior finish system over structural insulated panels. The exterior finish leaked. The court held that the last act of the defendants occurred no later than when the certificate of occupancy was issued, but because the homeowners sued more than six years after that date, their claims were completely barred, even though they had almost 14 years left on their warranty.

The North Carolina Supreme Court heard oral arguments in the case on April 14, 2014, and no decision has yet been issued. However the Court decides, the implications are clear for those whose property or person are injured: act quickly to determine the cause, see a competent lawyer, and move swiftly to file suit. In these circumstances, good things do notcome to those who wait.

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