Gen. Electric Co. v. Jackson, No. 09-5092.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtTATEL, Circuit
Citation610 F.3d 110
Docket NumberNo. 09-5092.
Decision Date29 June 2010
PartiesGENERAL ELECTRIC COMPANY, Appellantv.Lisa Perez JACKSON, Administrator, U.S. Environmental Protection Agency and Environmental Protection Agency, Appellees.

610 F.3d 110

GENERAL ELECTRIC COMPANY, Appellant
v.
Lisa Perez JACKSON, Administrator, U.S. Environmental Protection Agency and Environmental Protection Agency, Appellees.

No. 09-5092.

United States Court of Appeals,
District of Columbia Circuit.

Argued May 18, 2010.
Decided June 29, 2010.

Rehearing En Banc Denied Sept. 30, 2010.


610 F.3d 111

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610 F.3d 112

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610 F.3d 113
Appeal from the United States District Court for the District of Columbia (No. 1:00-cv-02855-JDB).
Carter G. Phillips argued the cause for appellant. With him on the briefs were Donald W. Fowler and Eric G. Lasker. Thomas G. Echikson entered an appearance.

Martin S. Kaufman and Quentin Riegel were on the brief for amicus curiae National Association of Manufacturers in support of appellant.

Robin S. Conrad, Amar D. Sarwal, Paul D. Clement, Daryl L. Joseffer, and Charles Fried were on the brief for amicus curiae Chamber of Commerce of the United States of America in support of appellant.

Sambhav N. Sankar, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief was John C. Cruden, Deputy Assistant Attorney General.

Christopher J. Wright was on the brief for amici curiae Natural Resources Defense Council, et al. in support of appellees.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

TATEL, Circuit Judge:

In this case, appellant challenges the constitutionality of a statutory scheme that authorizes the Environmental Protection Agency to issue orders, known as unilateral administrative orders (UAOs), directing companies and others to clean up hazardous waste for which they are responsible. Appellant argues that the statute, as well as the way in which EPA administers it, violates the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. 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. Appellant 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 such “consequential” injuries

610 F.3d 114
-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.
I.

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) “in response to the serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998). CERCLA seeks to promote prompt cleanup of hazardous waste sites and to ensure that responsible parties foot the bill. See, e.g., Gen. Elec. Co. v. Whitman ( GE I ), 257 F.Supp.2d 8, 12 (D.D.C.2003). Although CERCLA speaks in terms of the President, the President has delegated his UAO authority to EPA, so throughout this opinion we shall refer only to EPA. See Exec. Order No. 12,580, 52 Fed.Reg. 2923 (Jan. 23, 1987).

Under CERCLA, EPA may itself conduct, or may order responsible parties to conduct, two types of “response actions”: removal actions are short-term remedies “designed to cleanup, monitor, assess, and evaluate the release or threatened release of hazardous substances,” while remedial actions are “longer-term, more permanent remedies to ‘minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.’ ” Gen. Elec. Co. v. EPA ( GE II ), 360 F.3d 188, 189 (D.C.Cir.2004) (per curiam) (quoting 42 U.S.C. § 9601); see also 42 U.S.C. § 9604 (providing authority for removal and remedial actions). CERCLA imposes strict liability on several classes of responsible parties, including current and former facility owners and operators, as well as parties that “arrange [ ] for” the transport, treatment, or disposal of hazardous substances. 42 U.S.C. § 9607.

When EPA determines that an environmental cleanup is necessary at a contaminated site, CERCLA gives the agency four options: (1) it may negotiate a settlement with potentially responsible parties (PRPs), id. § 9622; (2) it may conduct the cleanup with “Superfund” money and then seek reimbursement from PRPs by filing suit, id. §§ 9604(a), 9607(a)(4)(A); (3) it may file an abatement action in federal district court to compel PRPs to conduct the cleanup, id. § 9606; or (4) it may issue a UAO instructing PRPs to clean the site, id. This last option, authorized by CERCLA section 106, is the focus of this case.

To use its UAO authority, EPA must first determine “that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility.” Id. If EPA makes such a determination, it must then compile an administrative record and select a response action. Id. § 9613(k)( l ). For remedial actions, the longerterm option, CERCLA requires EPA to “provide for the participation of interested persons, including [PRPs], in the development of the administrative record.” Id. § 9613(k)(2)(B). Specifically, EPA must provide “[n]otice to potentially affected persons and the public,” “[a] reasonable opportunity to comment and provide information regarding the [remedial] plan,” “[a]n opportunity for a public meeting in the affected area,” “[a] response to each of the significant comments, criticisms, and new data submitted in written or oral presentations,” and “[a] statement of the basis and purpose of the selected action.” Id.; see also § 9617(a)(b) (requiring public notice of all

610 F.3d 115
remedial actions). EPA regulations also require public notice and comment for the shorter-term removal actions See 40 C.F.R. §§ 300.415(n) (requiring community notice of removal actions), 300.810-300.820 (describing contents of administrative record and mandating public comment period for remedial and removal actions).

Once EPA issues a UAO, the recipient PRP has two choices. It may comply and, after completing the cleanup, seek reimbursement from EPA. 42 U.S.C. § 9606(b)(2)(A). If EPA refuses reimbursement, the PRP may sue the agency in federal district court to recover its costs on the grounds that (1) it was not liable for the cleanup, id. § 9606(b)(2)(B)(C); or (2) it was liable but EPA's selected response action (or some portion thereof) was “arbitrary and capricious or ... otherwise not in accordance with law,” id. § 9606(b)(2)(D). Alternatively, the PRP may refuse to comply with the UAO, in which case EPA may either bring an action in federal district court to enforce the UAO against the noncomplying PRP, id. § 9606(b)(1), or clean the site itself and then sue the PRP to recover its costs, id. § 9607(c)(3). In either proceeding, if the court concludes that the PRP “willfully” failed to comply with an order “without sufficient cause,” it “may” (but need not) impose fines, id. § 9606(b)(1), which are currently set at $37,500 per day, see 73 Fed.Reg. 75,340, 75,340-46 (Dec. 11, 2008), and accumulate until EPA brings a recovery or enforcement action-a period of up to six years, see 28 U.S.C. § 2462 (statute of limitations for enforcement action is five years from the date a PRP violates a UAO); 42 U.S.C. § 9613(g)(2) (statute of limitations for recovery of costs is three years for a removal action and six years for a remedial action). If EPA itself undertakes the cleanup and the district court finds that the PRP “fail[ed] without sufficient cause” to comply with the UAO, the court “may” impose punitive damages of up to “three times [ ] the amount of any costs” the agency incurs. 42 U.S.C. § 9607(c)(3).

Central to this case, these two options-comply and seek reimbursement, or refuse to comply and wait for EPA to bring an enforcement or cost recovery action-are exclusive. CERCLA section 113(h) bars PRPs from obtaining immediate judicial review of a UAO. Id. § 9613(h). See generally Reardon v. United States, 947 F.2d 1509, 1512 (1st Cir.1991) (en banc). That section provides that “No Federal court shall have jurisdiction ... to review any order issued under section [106]” until the PRP completes the work and seeks reimbursement, id. § 9613(h)(3), or until EPA brings an enforcement action or seeks to recover fines and damages for noncompliance, id. § 9613(h)(1)(2).

Over the years, appellant General Electric (GE) has received at least 68 UAOs. See Gen. Elec. Co. v. Jackson ( GE IV ), 595 F.Supp.2d 8, 17 (D.D.C.2009). In addition, GE “is currently participating in response actions at 79 active CERCLA sites” where UAOs may issue, Reply Br. 22, including the cleanup of some 200 miles of the Hudson River stretching from Hudson Falls to the southern tip of Manhattan. According to EPA and its amicus, from 1947 to 1977, two GE manufacturing plants near Hudson Falls contributed to the river's pollution by discharging polychlorinated biphenyls, considered a probable human carcinogen. Nat'l Res. Def. Council et al. Amicus Br. 2 (“NRDC Amicus Br.”); see also United States v. Gen. Elec. Co., 460 F.Supp.2d 395, 396 (N.D.N.Y.2006). Although EPA has yet to issue GE a UAO for the Hudson River, the agency has reserved the right to do so, see NRDC Amicus Br. 7, and the company suspects it will receive UAOs at other sites as well.

610 F.3d 116

In 2000, GE filed suit in the United States District Court for the District of Columbia challenging CERCLA's UAO regime. In its amended complaint, GE alleged that the statute violates the...

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127 practice notes
  • Robinson v. Wash. Metro. Area Transit Auth., Civil Action No. 15-740 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • March 8, 2016
    ...of erroneous deprivation and the probable value, if any, of additional or substitute procedural safeguards.” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C.Cir.2010) ; Mathews, 424 U.S. at 335, 96 S.Ct. 893.2. The Plaintiff Fails to Allege that He was Deprived of a Constitutionally Prote......
  • ELK Run Coal Co. v. United States Dep't of Labor, Civil Action No. 10–1056 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 18, 2011
    ...veterans' benefit determinations did not bar constitutional challenge to statute itself)). In General Electric Company v. Jackson, 610 F.3d 110 (D.C.Cir.2010) ( GE II ), the D.C. Circuit expanded its ruling in GE I to include GE's “pattern and practice” claim—that “EPA's policies and proced......
  • Wilmina Shipping AS v. U.S. Dep't of Homeland Sec., Civil Action No. 11-2184 (ABJ)
    • United States
    • U.S. District Court — District of Columbia
    • March 27, 2013
    ...property or liberty interest and that they were deprived of that interest without sufficient legal process. Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). A. Plaintiffs Have a Constitutionally Protected Property Interest To have a constitutionally protected property interest......
  • Virtus Pharm. v. Garland, Civil Action 21-2308 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 22, 2021
    ...first consider “whether the plaintiff has been deprived of a protected interest in ‘liberty' or ‘property.'” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). If so, courts then determine whether the government's attendant procedures comport with principles of due process. Id. ......
  • Request a trial to view additional results
125 cases
  • Robinson v. Wash. Metro. Area Transit Auth., Civil Action No. 15-740 (BAH)
    • United States
    • U.S. District Court — District of Columbia
    • March 8, 2016
    ...of erroneous deprivation and the probable value, if any, of additional or substitute procedural safeguards.” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C.Cir.2010) ; Mathews, 424 U.S. at 335, 96 S.Ct. 893.2. The Plaintiff Fails to Allege that He was Deprived of a Constitutionally Prote......
  • ELK Run Coal Co. v. United States Dep't of Labor, Civil Action No. 10–1056 (JEB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 18, 2011
    ...veterans' benefit determinations did not bar constitutional challenge to statute itself)). In General Electric Company v. Jackson, 610 F.3d 110 (D.C.Cir.2010) ( GE II ), the D.C. Circuit expanded its ruling in GE I to include GE's “pattern and practice” claim—that “EPA's policies and proced......
  • Wilmina Shipping AS v. U.S. Dep't of Homeland Sec., Civil Action No. 11-2184 (ABJ)
    • United States
    • U.S. District Court — District of Columbia
    • March 27, 2013
    ...property or liberty interest and that they were deprived of that interest without sufficient legal process. Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). A. Plaintiffs Have a Constitutionally Protected Property Interest To have a constitutionally protected property interest......
  • Virtus Pharm. v. Garland, Civil Action 21-2308 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • September 22, 2021
    ...first consider “whether the plaintiff has been deprived of a protected interest in ‘liberty' or ‘property.'” Gen. Elec. Co. v. Jackson, 610 F.3d 110, 117 (D.C. Cir. 2010). If so, courts then determine whether the government's attendant procedures comport with principles of due process. Id. ......
  • Request a trial to view additional results
3 books & journal articles
  • The Site Cleanup Processes
    • United States
    • Superfund Deskbook -
    • August 11, 2014
    ...42 U.S.C. §9606(b)(1); Civil Monetary Penalty Inlation Adjustment Rule, 73 Fed. Reg. 75340 (Dec. 11, 2008); Gen. Elec. Co. v. Jackson, 610 F.3d 110 (D.C. Cir. 2010), cert. denied , 131 S. Ct. 2959 (2011). 183. Gen. Elec. , 610 F.3d at 118. 184. 42 U.S.C. §§9606(b)(1), 9607(c)(3). 185. Unite......
  • Avoiding the Contribution 'Catch-22': CERCLA Administrative Orders for Cleanup Are Civil Actions
    • United States
    • Environmental Law Reporter Nbr. 46-9, September 2016
    • September 1, 2016
    ...in federal district court under CERCLA §107. 97 For shorter-term and less costly response 89. See, e.g. , General Elec. Co. v. Jackson, 610 F.3d 110, 40 ELR 20170 (D.C. Cir. 2010); City of Rialto v. West Coast Loading Corp., 581 F.3d 865, 39 ELR 20184 (9th Cir. 2009); Raytheon Aircraft Co. ......
  • ENVIRONMENTAL CRIMES
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...2116, 2130–31 (2019) (Alito, J., concurring in the judgment); id. at 2135 (Gorsuch, J., dissenting). 70. E.g., Gen. Elec. Co. v. Jackson, 610 F.3d 110, 118–19 (D.C. Cir. 2010) (f‌inding CERCLA requirement that potentially responsible parties “willfully failed to comply without suff‌icient c......

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