Most people would assume that, when the United States takes action directly impacting an individual, constitutional due process would ensure that individual has an opportunity to test the government’s action in court. That assumption, however, has been sorely tested in the past few decades as the government in more and more contexts is asserting that Congress has created “dark pathways” around due process. The most obvious instance of such dark pathways are the secret FISC courts created by the Foreign Intelligence Surveillance Act, which allow the government to subpoena from telephone and internet companies vast amounts of information about their customers’ communications while prohibiting those companies from even advising the affected customers that their records are being turned over to the government.
Environmental law is no stranger to these dark pathways around due process. In El Paso Natural Gas Company v. Navajo Nation, the DC Court of Appeals recited with obvious distaste the way the EPA construed Section 113(h) of CERCLA to potentially bar forever any judicial review of EPA’s remedy selection decisions:
The Government’s position is dubious, to say the least: If EPA’s ipse dixit is enough to trigger §113(h), and if EPA can also do nothing for as long as it pleases, then CERCLA §113(h) becomes a license for EPA to do as it will for as long as it would like, all the while free of judicial review. And where federal facilities are involved, this carte blanche has the potential to be used by the Government to avoid liability. We doubt this is what Congress intended in CERCLA §113(h).
Faced with these dark pathways, the judicial response has been to complain but accede to the government’s position. In El Paso, after exposing the fundamental unfairness of the government’s position that there need not be any required judicial review of EPA’s remedy selection decisions, the court, like the Seventh Circuit Frey v. EPA, chose only to complain about EPA’s position to Congress: “[It is enough for this court to join the Seventh Circuit in highlight the problem as one that is ripe for congressional consideration.” In a similar vein, federal judges trapped in the dark pathways of FISC have resorted to complaints about governmental over-reaching, such as the following footnote from a recently unsealed October 2011 FISC decision: “The Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the govenrment has disclosed a substantial misrepresentation regarding the scope of a major collection program.”
It is curious that, when confronted with the government’s invocation of its purported right to circumvent due process, courts have chosen to become whistleblowers rather than Article III courts empowered to enforce constitutional protections.