District of Columbia Circuit Allows Constitutional Challenge to CERCLA

Originally published 2^nd Quarter, 2004

On March 2, 2004, the U.S. Court of Appeals for the District of Columbia Circuit upheld the right of General Electric Company (GE) to challenge the constitutionality of the unilateral administrative order (UAO) scheme authorized by Section 106 of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), 42 U.S.C. §§ 9606, and related provisions. The appeals court in General Electric Co. v. Environmental Protection Agency, Case No. 03-5114, overturned the ruling of the District of Columbia District Court, which had concluded that Section 113(h) of CERCLA, 42 U.S.C. § 9613, prohibited GE’s challenge.

Under Section 106, EPA is authorized to issue UAOs to parties deemed potentially responsible for the costs of environmental cleanup. If the recipient of such an order fails to comply, EPA is authorized to file a civil action in federal district court to enforce the order. A recalcitrant party is potentially subject to the