Legal Commentary

Superfund Is Constitutional

By Jonathan H. Adler

This morning the U.S. Court of Appeals for the D.C. Circuit rejected General Electric?s constitutional challenge to the Environmental Protection Agency?s use of administrative orders under the Comprehensive Emergency Response Cleanup and Liability Act (aka ?Superfund?).  Here is how the opinion begins:

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?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 blogged briefly on this case before here.

UPDATE: The AP reports on the decision here.

Full post as published by The Volokh Conspiracy on June 29, 2010 (boomark / email).