June 30, 2010

Siros_Steven_COLORBy Steven M. Siros


On June 29, 2010, the United States Court of Appeals for the District of Columbia affirmed a district court's grant of summary judgment in favor of the United States Environmental Protection Agency ("U.S. EPA") in General Electric Company v. Jackson. In a case that was originally filed in 2000, General Electric challenged U.S. EPA's use of unilateral administrative orders ("UAOs") to compel parties to remediate contaminated properties as being violative of the Fifth Amendment's due process clause. More specifically, General Electric argued that the issuance of a UAO violates the rights of Potentially Responsible Parties ("PRPs") to due process, because a PRP cannot challenge an UAO until after the remedial work required by the UAO has been performed.  As a result, according to General Electric, the UAO process, in violation of the Fifth Amendment, deprives the PRP of two types of protected property interests: (1) the money that a PRP must spend to comply with the UAO or face the threat of daily fines and treble damages for non-compliance and (2) an impaired market and brand value, and an impaired ability to obtain financing, all of which, General Electric argued, were a result of the issuance of an UAO. Because the UAO process does not afford a party the right to seek judicial review prior to carrying out the order, General Electric contended that CERCLA's UAO provisions violated the due process clause.