On June 29, 2010, the US Circuit Court of Appeals for the District of Columbia upheld the constitutionality of EPA’s issuance of “unilateral administrative orders” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund). General Electric had challenged EPA’s authority to order corporations that had contaminated sites to pay for the cleanup and remediation costs of hazardous materials there. Their arguments amounted to a challenge that such orders deprived these companies of their due process rights – essentially because there was no hearing (before a neutral decisionmaker) prior to the order taking effect. However, the Circuit Court highlighted the fact that if these companies were to refuse compliance with such orders, the EPA would be forced to sue for injunctive relief in a federal court. The court went on to note that consequential injuries – ones “resulting not from EPA’s issuance of the [order], but from market reactions to it [including drops in share prices] – are insufficient to merit Due Process Clause protection.”
Such a bold reaffirmation of EPA’s authority under the Superfund is a resounding victory for both the EPA and the environment. Countless environmental advocacy groups have been fighting tirelessly for decades to force parties responsible for atrocious environmental contaminations and spills to account for their past transgressions. This ruling finally settles legal questions that have been stunting those efforts for the better part of the last decade, and leaves EPA with a clear mandate to pursue their responsibilities under CERCLA to the fullest extent of their capacity. GE, with over 68 pending compliance orders to its name, is also currently undertaking 79 additional cleanup actions, including the Hudson River Superfund site (which is overwhelmed with tons of carcinogenic contaminants).