General Electric Co. v. Jackson

610 F.3d 110 (D.C. Cir. 2010)


P filed suit in the United States District Court for the District of Columbia challenging CERCLA's UAO regime. P alleged that the statute violates the Fifth Amendment to the United States Constitution because it 'deprives persons of their fundamental right to liberty and property without . . . constitutionally adequate procedural safeguards.' 'The unilateral orders regime. . . imposes a classic and unconstitutional Hobson's choice': because refusing to comply 'risks severe punishment [i.e., fines and treble damages],' UAO recipients' only real option is to 'comply . . . before having any opportunity to be heard on the legality and rationality of the underlying order.' The district court dismissed P's amended complaint for lack of jurisdiction. The appeals court reversed, ruling that section 113(h) presented no bar to P's lawsuit because the company 'does not challenge any particular action or order by EPA.' On remand, the district court issued two decisions that P now appeals. The district court granted EPA's motion for summary judgment on P's facial due process challenge. The court rejected P's claim that CERCLA's fines and treble damages are so severe that, as a practical matter, they foreclose judicial review. In the alternative, the district court applied the 'Salerno doctrine,' which prohibits facial invalidation of a statute unless the statute 'is unconstitutional in every application.' According to the court, even if CERCLA's fines and damages make pre-compliance review unavailable as a practical matter, the statute can still be applied constitutionally in emergency situations. Finally, the district court concluded that it had jurisdiction to address what it called P's 'pattern and practice' challenge to EPA's administration of CERCLA's UAO provisions, i.e., P's argument that EPA's policies and procedures for issuing UAOs exacerbate CERCLA's constitutional deficiencies, and it allowed discovery on that claim to proceed. The district court granted EPA's motion for summary judgment on the pattern and practice challenge as well. P appeals both decisions.