Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

As I noted earlier this month, the Supreme Court denied GE’s certiorari petition seeking to challenge the constitutionality of EPA’s use of unilateral administrative orders issued under section 106 of CERCLA. It thus comes as something of a surprise that the Court today accepted a certiorari petition in Sackett v. EPA. The Sackets are appealing a decision by the 9^th Circuit Court of Appeals holding that pre-enforcement review is not available to challenge unilateral administrative orders issued by EPA pursuant to section 319 of the Clean Water Act. Lest anyone think that this is simply the Court reining in that liberal 9^th Circuit, the 9^th Circuit decision followed the lead of all four other circuit courts that have already addressed the question.

So, not only did the Supreme Court grant cert. in a CWA case even though it denied cert. challenging a very similar provision under CERCLA, it did so without a circuit split to resolve.

CERCLA’s order provision does differ slightly from that of the CWA. CERCLA explicitly prohibits pre-enforcement review; the CWA does not. It seemed to me that, while I am firmly on the side of the challengers as to the practical import of unilateral orders, EPA’s legal authority remains fairly solid. As the Court of Appeals noted, even in the absence of a specific statutory prohibition, judicial review is prohibited as long as preclusion “is fairly discernible in the statutory scheme.” Given the distinction between orders and civil enforcement, which is separately provided for in the CWA, and that the CWA does provide for judicial review of civil penalties imposed by EPA, a fair reading of the statute would seem to preclude pre-enforcement review of orders. This conclusion is buttressed by the purpose of the order provision, which is allow EPA to move quickly in particular cases, and the legislative history, which also seems to support preclusion.

The Court’s order granting cert. identified two questions – both the statutory interpretation question and the assertion that a ban on pre-enforcement review violates the due process clause. However, the constitutional claim is precisely what the Court refused to hear in the GE case. Obviously, that is not binding precedent, but why would the Court deny cert. to GE only to grant it three weeks later to the Sacketts?

Whatever the answer, there is a lot riding on this case. Notwithstanding the denial of cert. in the GE case, if the Supreme Court allows pre-enforcement review of orders under the CWA, it will have repercussions beyond the CWA. The CAA order provision would certainly be on shaky ground and, if the Court’s opinion were predicated on constitutional concerns rather than statutory interpretation, CERCLA’s order authority would seem to fail as well.

I should be telling my clients not to get their hopes up, but it's hard not to get one's hopes up.

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Last year, I analogized PRP efforts to have CERCLA’s unilateral administrative order provisions declared unconstitutional to Chevy Chase’s repeated announcements during the first year of Saturday Night Live that Francisco Franco was still dead. Eventually, that joke wore out. With yesterday’s decision by the D. C. Circuit Court of Appeals, in General Electric v. Jackson, upholding EPA’s UAO authority, these legal challenges may be similarly about to wear out. 

The analysis in GE v. Jackson is pretty straightforward. EPA may not obtain fines or treble damages if a PRP defies a UAO unless the agency goes to court and the court concludes that the PRP is in fact liable under CERCLA and that none of the statutory defenses apply. Because PRPs thus have a “pre-deprivation” remedy, there is no due process violation. At a formal level, that’s hard to dispute. The formal pre-deprivation remedy and the absence of a circuit split make it unlikely that the Supreme Court will have any interest in hearing this case.

GE’s most cogent argument, to me, is that, as a practical matter, the deck is so heavily stacked in EPA’s favor that it really is very difficult for PRPs to take advantage of the due process rights that CERCLA provides. The Court gave this argument short shrift, noting that, out of 1,638 recent UAOs, PRPs had refused to comply with 75, or 4.6%. However, we do not know the details underlying these data. Many of these 75 non-complying PRPs could simply be deadbeats, rather than viable PRPs who considered themselves not liable or had reason to believe that EPA’s remedy was arbitrary and capricious. 

There are limits to the use of anecdotal evidence, but does anyone who has a lot of CERCLA experience really deny that the coercion faced by PRPs is extreme? This is why liberal friends of mine who consider themselves environmentalists, but who aren’t lawyers and don’t know how CERCLA works, are often shocked when I describe some of these cases – in an unbiased way, of course – and ask how CERCLA can be constitutional.

My own sense is that the D.C. Circuit decision is probably right as a matter of constitutional law. Not every law that is unfair is unconstitutional. I certainly think that CERCLA’s UAO provisions are unfair. I also think that they are bad law, masquerading as “polluter pays” provisions. However, to the extent one can really even speak about Congressional intent given the haphazard way CERCLA was drafted, Section 106, as interpreted in GE v. Jackson, is pretty clearly what Congress intended and, for now, it’s the law. 

Francisco Franco is still dead, and so are constitutional challenges to EPA's UAO authority under CERCLA.

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Last Friday, the Court of Appeals for the 5^th Circuit issued an order – boggling the minds of lawyers and non-lawyers alike – dismissing the plaintiffs' appeal in Comer v. Murphy Oil, one of the climate change nuisance cases. As the order and dissents make clear, it’s quite a set of circumstances. The District Court dismissed the case. A panel of the 5^th Circuit reversed. A request to rehear the case en banc was made. Seven out of 16 judges recused themselves. Of the nine remaining judges, six voted to rehear the case en banc. 

Three months later, one of the nine judges who voted on the en banc petition recused herself, leaving only eight – or half – of the judges. After requesting and receiving letter briefs from the parties, five of the remaining eight judges concluded that the last recusal deprived the Court of Appeals of a quorum, which means that the Court cannot hear or decide the appeal. Since the Court had already determined that, pursuant to its rules, the original panel decision was vacated when the decision to hear the case en banc was made, there is now no Court of Appeals decision; nor will there ever be one. The District Court decision dismissing the case, which had been reversed by the panel, is now in effect again, and the plaintiffs’ only remedy is a Supreme Court appeal.

As readers of this blog know, I’m not a believer in climate change nuisance litigation. As a formal matter, I think plaintiffs probably lack standing in these cases. As a practical matter, nuisance litigation is not the right way to regulate GHG emissions. However, I have to admit that I find the order breathtaking. The plaintiffs have a formal statutory right of appeal. As Judge Dennis pointed out in a scathing dissent,

federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred…. Just as courts have an “absolute duty … to hear and decide cases within their jurisdiction, [] litigants have a corresponding due process right to have their cases decided when they are properly before the federal courts.”

I’ll spare you the details, but Judge Dennis provided several different practical solutions that the Court could have utilized to hear the case.

My initial reaction is that this will slow Supreme Court review of this issue. The 5^th Circuit was likely to affirm the District Court decision, which would have created a split with the Second Circuit. The order issued last week means that there is no circuit split at this point. While the plaintiffs can appeal the order to the Supreme Court. even if the Supreme Court were to reverse the order, it would only be to order the 5^th Circuit to hear the appeal on the merits. If the 5^th Circuit is to hear the case, it’s years away at this point. 

Jarndyce v. Jarndyce, anyone?

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