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GE Wins Challenge Against USEPA Superfund Order

Superfund may have just lost its cape of impenetrability. The United States Court of Appeals for the District of Columbia ruled yesterday that General Electric can sue the USEPA over a unilateral order it issued to clean up the Hudson River from years of PCB contamination.

The ruling is one of the most significant challenges to the power of the USEPA to clean up contamination under CERCLA.

GE based its challenge on due process. Lawrence Tribe argued for GE that without the right to challenge a "unilateral ruling," the combination of the absence of preenforcement review and heavy penalties "imposes a classic and unconstitutional Hobson's choice: either do nothing and risk severe punishment or comply and wait indefinitely before having any opportunity to be heard on the legality and rationality of the underlying order."

In other words, a conundrum.

The ruling overturns Judge John D. Bates' earlier order upholding the USEPA's position. The reversal on appeal opens up the entire CERCLA statute to constitutional scrutiny. We may have a very different landscape in several years after this case winds its way through the appellate process.

So, now GE has the right to sue the USEPA, a first in CERCLA. Depending on how this case turns out, there are over 1,000 cleanup orders issued by the USEPA that will be subject to challenge.

Environmentalists are incensed. The NRDC believes the decision will weaken Superfund laws.

GE hasn't commented yet. But it's probably happy it doesn't yet have to spend almost $500 million dredging the Hudson River.

Posted by J. Craig Williams on Friday, March 05, 2004


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