ELR Citation: ELR 20170
No(s). 09-5092 (D.C. Cir. Jun 29, 2010)

The D.C. Circuit upheld the constitutionality of EPA's authority under CERCLA to issue unilateral administrative orders (UAOs) directing companies and others to clean up hazardous waste for which they are responsible. A company argued that the statute, as well as the way in which EPA administers it, violates the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. The court disagreed. To the extent the UAO regime implicates constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court. The company argued that the UAO scheme and EPA's implementation of it nonetheless violate due process because the mere issuance of a UAO can inflict immediate, serious, and irreparable damage by depressing the recipient's stock price, harming its brand value, and increasing its cost of financing. But such consequential injuries—injuries resulting not from EPA's issuance of the UAO, but from market reactions to it—are insufficient to merit Due Process Clause protection.

[Prior decisions in this litigation can be found at 33 ELR 20167, 34 ELR 20020, and 39 ELR 20022.]