Readers of a certain age will recall Chevy Chase’s Weekend Update segment during the first year of Saturday Night Live, when, for a number of shows, he would report that Francisco Franco was still dead. (And isn’t it great that there is actually a Wikipedia article on the subject of Franco still being dead!).
This segment was brought to mind by the report of this week’s decision out of the District Court for the District of Columbia, in the case of General Electric v. Jackson, affirming that EPA’s authority to issue unilateral administrative orders under § 106 of CERCLA had survived an as applied constitutional challenge brought by General Electric. Clients have been asking their lawyers whether CERCLA could possibly be constitutional ever since it was passed more than 28 years ago. Today, with this decision, I can report that CERCLA is still constitutional.
The same court had rejected a facial challenge to CERCLA’s constitutionality in 2005. In the recent decision, the court concluded that EPA’s “pattern and practice” in implementing § 106 also survived challenge. GE had raised two concerns. The first is that, under the decision in Ex Parte Young, EPA’s coercion of PRPs through its use of § 106 deprives PRPs of their due process rights. The court rejected this argument on the ground that the availability of the sufficient cause defense and the ultimate availability of judicial review meant that EPA’s issuance of § 106 orders is not unconstitutionally coercive.
Second, GE argued that EPA’s process for issuing § 106 orders deprives PRPs of a constitutionally protected property interest and that, in order to do so, EPA must provide more process, in particular a neutral decision-maker, prior to issuing orders. Here, while the court found that issuance of § 106 orders does deprive PRPs of a property interest, the balance of harms weighs in EPA’s favor and imposition of greater pre-issuance process would impose substantial costs on EPA without providing significant benefit to PRPs.
Francisco Franco is still dead. CERCLA is still constitutional. Plus ca change, plus c’est la même chose.