General Electric v. EPA, decided March 2, 2004. Laurence H. Tribe argued the cause for appellant. With him on the briefs were Benjamin W. Heineman, Jr., Brackett B. Denniston III, Stephen D. Ramsey, Carter G. Phillips, Angus Macbeth, Thomas G. Echikson, and Brian T. Fitzpatrick.
Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.Posted by Marcia Oddi at March 2, 2004 04:38 PM
Opinion for the Court filed PER CURIAM.
PER CURIAM: The General Electric Company appeals the dismissal of its amended complaint alleging that the administrative orders regime of §§ 106, 107(c)(3), and 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (‘‘CERCLA’’), 42 U.S.C. §§ 9606, 9607(c)(3), and 9613(h), violates the Due Process Clause of the Fifth Amendment. The only issue on appeal is whether the district court erred in dismissing the amended complaint for lack of subject matter jurisdiction under § 113(h). We hold that the plain text of § 113(h) does not bar GE’s facial constitutional challenge to CERCLA and accordingly, we reverse and remand the case to the district court. * * *GE filed suit against the Administrator of EPA and EPA seeking a declaratory judgment that the provisions of CERCLA relating to the unilateral administrative orders regime, namely §§ 106(a), 107(c)(3), and 113(h), are unconstitutional under the Due Process Clause of the Fifth Amendment. GE alleged that the combination of the absence of preenforcement review and massive penalties for noncompliance with a UAO ‘‘imposes a classic and unconstitutional Hobson’s choice: Either do nothing and risk severe punishment without meaningful recourse or comply and wait indefinitely before having any opportunity to be heard on the legality and rationality of the underlying order.’’ EPA moved to dismiss the amended complaint for lack of jurisdiction on the ground that § 113(h) postpones judicial review of any action under CERCLA until EPA seeks to enforce its remedial orders in court or the PRP sues to recoup its expenses for undertaking the clean-up. Alternatively, EPA moved for summary judgment on the grounds that there was no violation of due process, and that a facial attack on CERCLA would fail because there were circumstances in which the UAO regime could be applied in a constitutional manner. The district court dismissed GE’s amended complaint for lack of subject matter jurisdiction under § 113(h), concluding that GE’s facial constitutional claim was the type of pre-enforcement challenge that Congress intended to preclude. General Electric Co. v. Whitman, 257 F. Supp.2d 8, 31 (D.D.C. 2003). * * *
GE’s due process challenge to CERCLA’s administrative orders regime is not a challenge to the way in which EPA is administering the statute in any particular removal or remedial action or order, but rather it is a challenge to the CERCLA statute itself. As such, GE’s facial constitutional challenge does not fit within the plain text of § 113(h)’s reference to ‘‘any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title.’’ Although GE and EPA have ongoing interactions over remediation at several locations, GE’s lawsuit does not challenge any particular action or order by EPA. The district court’s conclusion that GE’s facial constitutional challenge is barred by § 113(h) renders much of this provision surplusage: gone is the limitation to challenges to removal or remediation actions. See Indep. Ins. Agents of Am., Inc. v. Hawke, 211 F.3d 638, 645 (D.C. Cir. 2000).
We therefore agree with the plain text interpretation of the en banc court in Reardon v. United States, 947 F.2d 1509, 1515 (1st Cir. 1991), that § 113(h) does not bar preenforcement review of facial constitutional challenges to CERCLA. While ‘‘[a] constitutional challenge to EPA administration of the statute may be subject to [§ 113(h)]’s strictures,’’ because GE’s claim does not challenge a removal or remedial action selected under § 104 or an order issued pursuant to § 106(a), GE’s amended complaint sets forth a ‘‘constitutional challenge to the CERCLA statute [that] is not covered by [§ 113(h)].’’