Wednesday, June 8, 2011

Supreme Court Denies Hearing GE CERCLA Challenge

Jun 6: The U.S. Supreme Court refused to hear the appeals of General Electric Company, Petitioner v. Lisa P. Jackson, Administrator, Environmental Protection Agency, et al. Case No. 10-871. Appealed from the U.S. Court of Appeals D.C. Circuit (Case No. 09-5092, decided June 29, 2010 [See WIMS 6/30/10], with a rehearing also denied on September 30, 2010.
    In the case, General Electric challenges the constitutionality of a statutory scheme that authorizes U.S. EPA to issue orders, known as "unilateral administrative orders" (UAOs) directing companies and others to clean up hazardous waste for which they are responsible under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In the D.C. Circuit, General Electric argued that the statute, as well as the way in which EPA administers it, violated the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. The D.C. Circuit said, "We disagree. To the extent the UAO regime implicates constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court."  
    The Appeals Court indicated that General Electric insists that the UAO scheme and EPA's implementation of it nonetheless violate due process because the mere issuance of a UAO can inflict immediate, serious, and irreparable damage by depressing the recipient's stock price, harming its brand value, and increasing its cost of financing. But, the Appeals Court said, ". . .such -- 'consequential' injuries -- injuries resulting not from EPA's issuance of the UAO, but from market reactions to it -- are insufficient to merit Due Process Clause protection. We therefore affirm the district court's grant of summary judgment to EPA.
    Access the Supreme Court docket for the case (click here). Access the D.C. Circuit opinion that now stands (click here). [*Remed, *SCOTUS]