ELR Citation: ELR 20841
No(s). 87-CV-3140-DT (E.D. Mich. Mar 11, 1988)

The court rules that §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars constitutional challenges to the Superfund Amendments and Reauthorization Act (SARA) by potentially responsible parties prior to an enforcement suit for reimbursement. The clear language of §113(h) supports the interpretation that constitutional challenges as well as statutory challenges are prohibited. The provision explicitly states that federal courts shall not have jurisdiction to review "any challenge" except for those enumerated. In addition, §113(h) precludes the use of 28 U.S.C. §1131 federal question jurisdiction to challenge a response action for which reimbursement has not been sought. The legislative history of SARA also supports the conclusion that constitutional challenges are precluded by §113(h). To allow constitutional objections to be raised at this stage of the process would impede the Environmental Protection Agency's (EPA's) ability to clean up hazardous waste sites expeditiously. The court next rules that Congress has the power to limit the jurisdiction of federal courts to hear constitutional challenges. Lower federal courts are courts of limited jurisdiction, and the limitations are established by Congress. The jurisdictional limitation established in §113 does not deprive plaintiff of its right to due process, since the limitation goes only to the time at which plaintiff's challenge may be raised, and does not withhold jurisdiction absolutely. Moreover, CERCLA §104(d)(5) contemplates judicial review at the time that EPA seeks to enter the premises to engage in a response action.

Counsel for Plaintiff
Roy W. Rogensues
35209 Utica Rd., Fraser MI 48026
(313) 294-5600

Counsel for Defendant
Arthur E. Gowran
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2754

Geneva S. Halliday, Ass't U.S. Attorney
817 Federal Bldg., 231 W. Lafayette, Detroit MI 48226
(313) 237-0400