A New Twist on the Statute of Limitations in Environmental Claims?
Statute of limitations require a person with a cause of action to bring suit within a specific period of time. Determining when that time period begins and ends is often hard to nail down. A recent case decided by the Michigan Court of Appeals illuminates this uncertainty in the context of environmental claims.
The matter of Henry v Dow Chemical Co. 2017 WL 239069 involved application of the statute of limitations to claims arising from the presence of dioxin contamination along the Tittabawassee River in Saginaw County. Dioxins can be created as a byproduct in the production of certain chlorinated organic compounds. The World Health Organization considers dioxins to be highly toxic.
The Henry Plaintiffs alleged injuries as a result of dioxin contamination of their property. While the parties agreed the applicable statute of limitation was three years, they could not agree on when it began to run.
Statute of limitations begin to run at the time a claim accrues. Claims accrue when the plaintiff is harmed rather than when the defendant acted.
The Plaintiffs claimed they sustained injuries in 2002 when the MDEQ released a series of bulletins advising residents of proposed cleanup activities. Those bulletins warned local residents about the possibility of dioxin in their soil. Defendant claimed that information about the dioxin contamination was known to the public in the early 1980s and the cause of action accrued in 1984 at the latest. The Plaintiffs had originally filed suit in 2003. The case is still ongoing after multiple appeals to the Michigan Supreme Court and Court of Appeals.
The Henry Court stated the statute of limitations began to run when the plaintiffs first suffered the harm from the dioxin in their soil. According to the Court, that occurred in 2002, not the early 1980’s. Knowledge of an existing claim is not the same as the presence of a necessary element. The bulletins issued by the MDEQ in 2002, while meant to be informative in nature, marked the creation of the damage element necessary to support the plaintiffs’ claims for nuisance and negligence. Prior to those bulletins, there were no restrictions on the use of plaintiffs’property. They could sell it without any loss in value and did not have to disclose the contamination. Because the Court believed the plaintiffs’ claim of depreciation in property value did not exist in any tangible form until the MDEQ published its advisories, it held the plaintiffs’ claims accrued in 2002.