The Indiana Law Blog

Law - More on DC Circuit's CERCLA ruling this week

Papers today are reporting the important CERCLA ruling (General Electric v. EPA) reported here (or simply scroll down) in the Indiana Law Blog on Tuesday afternoon. As reported here today in the Albany NY Times Union, in a story headlined "Ruling lets GE sue over cleanup: Decision allows company to challenge the Superfund law and the EPA order to dredge the Hudson River, which could delay or stop the project :"

Courts have given companies the right to sue after cleanups are complete, but in the part of the Superfund law under question, Congress sought to preclude suits so that extended legal delays wouldn't jeopardize public health and safety.

That piece of the law violates one of the bases of American jurisprudence, that any individual or institution can go to court if they feel their property is being unfairly taken away, said famed constitutional scholar Lawrence Tribe, a Harvard professor who represented General Electric.

"If GE can be made the target of a government regime that bypasses that most fundamental principle," said Tribe, "than the same thing can be done to you or me."

What GE wants, Tribe claimed, is not necessarily the right to rush to court to overturn an EPA cleanup order. The company hopes instead that if the district court agrees that Superfund orders can be challenged, the EPA will proceed more gingerly, Tribe explained.

An AP story carried in many papers this morning reports:

The EPA has issued more than 1,000 such orders since the Superfund program was created. GE filed a suit challenging the constitutionality of the Superfund law in November 2000, just before the EPA announced a preliminary plan for dredging PCB-contaminated pockets along the upper Hudson River.

The lawsuit claimed the Superfund statute violates due process rights by giving regulators unchecked authority to order costly, intrusive cleanups with no chance at a timely review by the courts.

In its 12-page ruling, the three-judge panel took note of the government's claim that a GE victory in the case "would have the effect of interfering with EPA's ability to issue orders and enforce clean-up operations."

"These concerns cannot lightly be dismissed given the nature of the hazards to health and the environment addressed (by the law)," the panel said. But it said an early court decision on GE's claim would likely remove the possibility of a similar legal delay later. * * *

GE spokesman Mark Behan said the company should be allowed to dispute an EPA Superfund decision early in the bureaucratic process, before it has shelled out millions of dollars.

"Just as every person in America faced with a government order has the right to appeal to an impartial judge, a company faced with an order from the Environmental Protection Agency to undertake a project of unlimited scope and duration has the right to a timely hearing in front of an impartial judge," Behan said.

Or, as stated succinctly in a Wall Street Journal story (paid subscription required):

GE, of Fairfield, Conn., contends the bar violates due process under the Fifth Amendment by presenting it with a dilemma: Either it would be forced to undertake a large and costly cleanup, or it could ignore the order "and risk severe punishment" by the EPA. The agency then could do the cleanup itself and impose triple damages if GE lost the later court challenge.

Posted by Marcia Oddi at March 5, 2004 07:01 AM