Court Sides With EPA, Upholds Agency's Superfund Authority
photo via flickr
For over ten years, General Electric has sought to strip the EPA of its authority to order corporations to cover the costs of Superfund sites, locations deemed extremely toxic and uninhabitable. But today the U.S. Circuit Court of Appeals for the District of Columbia said no way to GE, which has argued that the EPA's authority deprives corporations of due process under the law. The EPA's tool to force action is known as unilateral administrative orders (UAOs). In his opinion, Judge David Tatel wrote that UAOs "satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court."
GE has received 68 UAOs, including one for polluting the Hudson River with carcinogenic polychlorinated biphenyls. The company argued that the EPA's decisions affect its share price while not giving it a way to fight back. Tatel disagreed: "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."
Unsurprisingly, both the U.S. Chamber of Commerce and National Association of Manufacturers filed briefs in support of GE's suit. Both industry groups are also against carbon caps or a cap and trade system to reduce emissions.
NRDC, which sided with the EPA in the case, said that the lawsuit is unlikely to reach the Supreme Court.