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Wednesday, May 19, 2010
Environment - "Attorney for General Electric Battles EPA Use of 'Sledgehammer' in Superfund Cases"
The subhead: "Sidley's Carter Phillips argues that unilateral administrative orders were meant to be used only in emergency situations but have become a go-to enforcement tool."
Environmental lawyer-readers will recognize this as a long-running battle.
Jeff Jeffrey has the story today in The National Law Journal. Some quotes:
At the U.S. Court of Appeals for the D.C. Circuit on Tuesday morning, lawyers for the General Electric Co. and the Environmental Protection Agency sparred over the constitutionality of a legal tool used to force the cleanup of hazardous waste sites. Carter Phillips, managing partner of Sidley Austin's D.C. office, faced off against Justice Department attorney Sambhav Sankar.The D.C. Circuit appeal is the latest chapter in a decadelong effort by GE to prove that a provision of the federal Superfund statute is unconstitutional. The Superfund statute, known formally as the Comprehensive Environmental Response, Compensation and Liability Act, was passed in 1980 to ensure that polluters would pay for the environmental hazards they created. The provision in question permits the EPA to unilaterally order a private party to clean up a site that poses an "imminent and substantial" threat to public safety. Companies that fail to follow the unilateral administrative order face stiff fines.
Phillips argued that the EPA's use of such orders violates the private party's due process rights. That's because companies must spend money to clean up and take a hit to their market value caused by the bad publicity of being labeled a polluter before getting a chance to challenge the order in court, Phillips said.
"What you've got is an agency of the government engaging in a specific adjudicative process without an independent adjudicator presiding over it," Phillips told the panel composed of Judges David Tatel, Judith Rogers, and Thomas Griffith.
Even if that's true, said Griffith, any fines imposed under a unilateral administrative order can't be enforced without a court order. "The [order] is just a step in the process, not the end of the process," Griffith said. "GE doesn't have to pay a dime until an Article III court tells them too."
Phillips countered that, while a company waits for a court to determine whether it may be held liable, the public will hear that the company is in "violation" of the law, which will damage its stock value. Also, there's a $37,500 fine for each day of noncompliance, he pointed out.
Phillips said that the unilateral administrative orders, which he called the EPA's "sledgehammer," were designed to be used only in emergency situations, but have become a go-to enforcement tool.
Posted by Marcia Oddi on May 19, 2010 01:36 PM
Posted to Environment