General Electric Co. v. Environmental Protection Agency

Notice: This opinion is subject to formal revision before publication in the

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2003 Decided March 2, 2004

No. 03-5114

GENERAL ELECTRIC COMPANY,

APPELLANT

v.

ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL O. LEAVITT, ADMINISTRATOR,

U.S. ENVIRONMENTAL PROTECTION AGENCY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02855)

Laurence H. Tribe argued the cause for appellant. With

him on the briefs were Benjamin W. Heineman, Jr., Brackett

B. Denniston III, Stephen D. Ramsey, Carter G. Phillips,

Angus Macbeth, Thomas G. Echikson, and Brian T. Fitz-

patrick.

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

2

Todd S. Kim, Attorney, U.S. Department of Justice, argued

the cause for appellees. With him on the brief were Jeffrey

Bossert Clark, Deputy Assistant Attorney General, Wendy L.

Blake and John A. Bryson, Attorneys, and Alan Carpien,

Attorney, U.S. Environmental Protection Agency.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: The General Electric Company appeals the

dismissal of its amended complaint alleging that the adminis-

trative orders regime of §§ 106, 107(c)(3), and 113(h) of the

Comprehensive Environmental Response, Compensation, and

Liability Act (‘‘CERCLA’’), 42 U.S.C. §§ 9606, 9607(c)(3), and

9613(h), violates the Due Process Clause of the Fifth Amend-

ment. The only issue on appeal is whether the district court

erred in dismissing the amended complaint for lack of subject

matter jurisdiction under § 113(h). We hold that the plain

text of § 113(h) does not bar GE’s facial constitutional chal-

lenge to CERCLA and accordingly, we reverse and remand

the case to the district court.

I.

Congress enacted CERCLA to address ‘‘environmental and

health risks posed by industrial pollution.’’ United States v.

Bestfoods, 524 U.S. 51, 55 (1998). The statute grants the

President and, by delegation, the Administrator of the Envi-

ronmental Protection Agency (‘‘EPA’’), ‘‘broad power to com-

mand government agencies and private parties to clean up

hazardous waste sites’’ by or at the expense of the parties

responsible for the contamination. Key Tronic Corp. v. Unit-

ed States, 511 U.S. 809, 814 (1994). At issue is CERCLA’s

provision on the timing of judicial review. Section 113(h), 42

U.S.C. § 9613(h), provides, with five exceptions not relevant

here, that:

No federal court shall have jurisdiction under Federal

law other than under section 1332 of Title 28 (relating to

diversity of citizenship jurisdiction) or under State law

3

which is applicable or relevant and appropriate under

section 9621 of this title (relating to cleanup standards)

to review any challenges to removal or remedial action

selected under section 9604 of this title, or to review any

order issued under section 9606(a) of this title, in any

action except one of the following [exceptions]TTTT (em-

phasis added).[1]

CERCLA § 104, the first section referenced in § 113(h),

authorizes EPA, whenever any hazardous substance is re-

leased or is threatened to be released into the environment,

to undertake two types of response actions: (1) to remove or

arrange for the removal of the hazardous substance; and (2)

to provide for remedial actions relating to the release or

‘‘substantial threat of release’’ of the substance. 42 U.S.C.

§ 9604. Removal actions are short-term remedies, designed

to cleanup, monitor, assess, and evaluate the release or

threatened release of hazardous substances. Remedial ac-

tions are longer-term, more permanent remedies to ‘‘minimize

the release of hazardous substances so that they do not

migrate to cause substantial danger to present or future

public health or welfare or the environment.’’ CERCLA

§ 101, 42 U.S.C. § 9601. EPA is authorized to select a

particular response action and develop an administrative rec-

ord without conducting an adjudicatory hearing. Id.

§ 113(k)(2)(c). Potentially responsible parties (‘‘PRPs’’), like

GE, can participate in a notice and comment process and

attend a public meeting in the affected area before EPA lists

a particular site on the National Priorities List, develops an

administrative record, and makes a final selection of the

1 The five enumerated exceptions in § 113(h) are: (1) actions

under CERCLA § 107 to recover response costs or damages or

actions for contribution; (2) actions to enforce § 106(a) orders or to

recover a penalty for violation of such orders; (3) actions for

reimbursement under § 106(b)(2); (4) citizen suits under 42 U.S.C.

§ 9659 alleging that the removal or remedial action taken under

CERCLA § 104 violated statutory requirements; and (5) actions

under § 106 in which the United States has moved to compel a

remedial action.

4

appropriate response action. See id. § 113(k)(2), 42 U.S.C.

§§ 9613(k)(2), 9605(a)(8)(b).

CERCLA § 106(a), the second section referenced in

§ 113(h), involves EPA’s authority to issue unilateral orders

to PRPs. 42 U.S.C. § 9606(a). CERCLA provides a number

of options for EPA to accomplish the clean-up work. First,

EPA may perform the work itself and then file in the district

court to recover its response costs from the PRP pursuant to

CERCLA § 107. See CERCLA § 104, 42 U.S.C. § 9604(a);

CERCLA § 107, 42 U.S.C. § 9607(a)(4)(A). Second, EPA

may initiate settlement negotiations. See CERCLA § 122, 42

U.S.C. § 9622. Third, under § 106(a), EPA may issue unilat-

eral administrative orders (‘‘UAOs’’) after notice to the affect-

ed state, directing the responsible parties to clean up the

hazardous sites ‘‘as may be necessary to protect public health

and welfare and the environment.’’ CERCLA § 106(a), 42

U.S.C. § 9606(a). Before issuing a UAO, EPA must deter-

mine ‘‘that there may be an imminent and substantial endan-

germent to the public health or welfare or the environment

because of an actual or threatened release of a hazardous

substance from a facility.’’ Id. If a party fails to comply,

EPA may file a civil action in the district court to enforce the

UAO. Id. Under the UAO regime, a PRP may perform the

required work and then petition EPA to recoup its costs; if

EPA refuses to pay the PRP can sue the agency in the

district court. Id. § 9606(b)(2)(A) & (B). Fourth, in the case

of imminent threat or harm, EPA may file suit in the district

court to compel the PRP to abate the danger or threat. Id.

CERCLA establishes various penalties, including punitive

damages, in the event of noncompliance with a UAO by a

PRP. Under § 106(b), the district court may, in the absence

of ‘‘sufficient cause,’’ impose daily fines of up to $27,500 for a

willful violation, refusal, or failure to comply with a UAO. 42

U.S.C. § 9606(b)(1); 40 C.F.R. § 19.4. In addition, under

§ 107(c)(3), the court may impose punitive damages ‘‘in an

amount at least equal to, and not more than three times, the

amount of any costs incurred by the Fund as a result of such

failure to take proper action.’’ Id. § 9607(c)(3).

5

GE filed suit against the Administrator of EPA and EPA

seeking a declaratory judgment that the provisions of

CERCLA relating to the unilateral administrative orders

regime, namely §§ 106(a), 107(c)(3), and 113(h), are unconsti-

tutional under the Due Process Clause of the Fifth Amend-

ment. GE alleged that the combination of the absence of pre-

enforcement review and massive penalties for noncompliance

with a UAO ‘‘imposes a classic and unconstitutional Hobson’s

choice: Either do nothing and risk severe punishment with-

out meaningful recourse or comply and wait indefinitely be-

fore having any opportunity to be heard on the legality and

rationality of the underlying order.’’ Am. Compl. at ¶ 4.

EPA moved to dismiss the amended complaint for lack of

jurisdiction on the ground that § 113(h) postpones judicial

review of any action under CERCLA until EPA seeks to

enforce its remedial orders in court or the PRP sues to

recoup its expenses for undertaking the clean-up. Alterna-

tively, EPA moved for summary judgment on the grounds

that there was no violation of due process, and that a facial

attack on CERCLA would fail because there were circum-

stances in which the UAO regime could be applied in a

constitutional manner. The district court dismissed GE’s

amended complaint for lack of subject matter jurisdiction

under § 113(h), concluding that GE’s facial constitutional

claim was the type of pre-enforcement challenge that Con-

gress intended to preclude. General Electric Co. v. Whit-

man, 257 F. Supp.2d 8, 31 (D.D.C. 2003).

II.

This court’s review of the order dismissing GE’s amended

complaint for lack of subject matter jurisdiction is de novo.

Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003); Sturm,

Ruger & Co., Inc. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002);

Ryan v. Reno, 168 F.3d 520, 521 (D.C. Cir. 1999). For the

reasons that follow, we begin and end with the language of

§ 113(h), because when the statutory text is straightforward,

there is no need to resort to legislative history. See United

States v. Gonzales, 520 U.S. 1, 6 (1997); Ratzlaf v. United

6

States, 510 U.S. 135, 147–48 (1994); Conn. Nat. Bank v.

Germain, 503 U.S. 249, 254 (1992).

The plain text of § 113(h) affords no indication that Con-

gress intended to preclude all pre-enforcement review of

constitutional challenges to the CERCLA statute. Section

113(h) divests federal courts of jurisdiction to entertain ‘‘any

challenges to removal or remedial action selected under

[§ 104 of CERCLA] or to review any order issued under

[§ 106(a) of CERCLA].’’ 42 U.S.C. § 9613(h). Congress

thus enumerated only two types of challenges over which

federal courts lack jurisdiction—challenges to § 104 actions

and § 106(a) orders. Although, § 113(h) refers broadly to

‘‘any challenges,’’ the plain language does not bar ‘‘any chal-

lenge,’’ without qualification. Instead, § 113(h) focuses on

‘‘any challenges’’ to removal or remedial actions under §§ 104

and 106(a), as well as ‘‘any enforcement activities related to’’

response actions. 42 U.S.C. § 9601(25)(defining removal and

remedial actions to ‘‘include enforcement activities related

thereto.’’).

GE’s due process challenge to CERCLA’s administrative

orders regime is not a challenge to the way in which EPA is

administering the statute in any particular removal or reme-

dial action or order, but rather it is a challenge to the

CERCLA statute itself. As such, GE’s facial constitutional

challenge does not fit within the plain text of § 113(h)’s

reference to ‘‘any challenges to removal or remedial action

selected under section 9604 of this title, or to review any

order issued under section 9606(a) of this title.’’ Although

GE and EPA have ongoing interactions over remediation at

several locations, see General Electric, 257 F. Supp. 2d at 24,

GE’s lawsuit does not challenge any particular action or order

by EPA. The district court’s conclusion that GE’s facial

constitutional challenge is barred by § 113(h) renders much

of this provision surplusage: gone is the limitation to chal-

lenges to removal or remediation actions. See Indep. Ins.

Agents of Am., Inc. v. Hawke, 211 F.3d 638, 645 (D.C. Cir.

2000).

7

We therefore agree with the plain text interpretation of the

en banc court in Reardon v. United States, 947 F.2d 1509,

1515 (1st Cir. 1991), that § 113(h) does not bar pre-

enforcement review of facial constitutional challenges to

CERCLA. While ‘‘[a] constitutional challenge to EPA ad-

ministration of the statute may be subject to [§ 113(h)]’s

strictures,’’ because GE’s claim does not challenge a removal

or remedial action selected under § 104 or an order issued

pursuant to § 106(a), GE’s amended complaint sets forth a

‘‘constitutional challenge to the CERCLA statute [that] is not

covered by [§ 113(h)].’’ Id. See also Employers Ins. of

Wausau v. Browner, 52 F.3d 656, 666 (7th Cir. 1995). EPA’s

effort to question the holdings of these cases is to no avail.

Although it is true, as EPA suggests, that the First Circuit,

in view of the particular circumstances of that case, see

Reardon, 947 F.2d at 1515 n.1, applied the canon of statutory

interpretation requiring Congress to speak clearly when it

seeks to preclude judicial review of constitutional claims, see

id. at 1514–15, we have no trouble agreeing with the Reardon

court’s plain language interpretation of § 113(h) here, id. at

1514, where we have no need to apply this interpretative

canon ourselves. In addition, despite the district court’s

contrary conclusion, Reardon’s reasoning was not confined to

CERCLA’s lien provisions but turned on the distinction be-

tween challenges to EPA’s administration of CERCLA, and

challenges to CERCLA itself. Id. at 1515. And while, as

EPA notes, the opinion in Wausau did not address the

particular arguments raised here, the Seventh Circuit held

that a due process challenge to CERCLA ‘‘is not precluded

by those [§ 113(h)] limitations’’ because it was ‘‘a proper

invocation of nonstatutory review.’’ Wausau, 52 F.3d at 666.

Even if § 113(h) were ambiguous regarding constitutional

challenges, our holding that GE’s constitutional challenge is

not barred by § 113(h) would comport with precedent distin-

guishing between facial, or ‘‘systemic,’’ and as-applied, or

particularized challenges. For example, in Johnson v. Robi-

son, 415 U.S. 361, 373–74 (1974), a provision barring review of

individual veterans benefit determinations did not bar a con-

stitutional challenge to the statute itself. The Court distin-

8

guished ‘‘those decisions of law or fact that arise in the

administration by the Veterans’ Administration of a statute

providing benefits for veterans’’ from constitutional chal-

lenges to ‘‘a decision of Congress.’’ Id. at 367. This circuit,

like others, has followed Robison and its progeny. See, e.g.,

Lepre v. Dep’t of Labor, 275 F.3d 59, 67–68 (D.C. Cir. 2001);

Nat’l Coalition To Save Our Mall v. Norton, 269 F.3d 1092,

1095 (D.C. Cir. 2001); Mace v. Skinner, 34 F.3d 854, 859 (9th

Cir. 1994); Disabled Am. Veterans United States Dep’t of

Veterans Affairs, 962 F.2d 136, 141 (2d Cir. 1992); Green-

wood v. United States, 858 F.2d 1056, 1059 (5th Cir. 1988);

Marozsan v. United States, 852 F.2d 1469, 1474 (7th Cir.

1988)(en banc).

More recently, in McNary v. Haitian Refugee Center, Inc.,

498 U.S. 479 (1991), the agency had argued that a lawsuit

challenging the manner in which the Special Agricultural

Worker (‘‘SAW’’) provision was being administered was

barred as an application for adjustment of status. The

Supreme Court disagreed. Looking to ‘‘[t]he critical words’’

of the immigration statute that barred review ‘‘of a determi-

nation respecting an application’’ for SAW status, the Court

observed that the words referred only to review of ‘‘a single

act rather than a group of decisions or a practice or proce-

dure employed in making decisions.’’ Id. at 492. This made

clear, the Court concluded, that Congress was referring to

denials of individual applications for SAW status, not ‘‘general

collateral challenges to unconstitutional practices and policies

used by the agency in processing applications.’’ Id. As is no

less true for CERCLA, the Court in McNary stated, ‘‘had

Congress intended the limited review provisions of § 210(e) of

the [immigration statute] to encompass [systemic, collateral]

challenges to [agency] procedures and practices, it could

easily have used broader statutory language,’’ referencing

other statutes barring judicial review of ‘‘all causes’’ and of

‘‘all questions of law and fact.’’ Id. at 494.

Even though these decisions, which involved statutes pre-

cluding judicial review altogether, applied an interpretive

canon that we need not apply here, see McNary, 498 U.S. at

496–99; Robison, 415 U.S. at 366–67, the distinction they

9

draw between systemic and particularized challenges never-

theless supports our interpretation of the plain text of

CERCLA § 113(h).

To the extent that other courts have concluded a constitu-

tional claim is barred by § 113(h), they have done so in cases

involving challenges to specific EPA orders and actions, see

Oil Chem. & Atomic Workers Int’l Union v. Richardson, 214

F.3d 1379 (D.C. Cir. 2000); McClellan Ecological Seepage

Situation v. Perry, 47 F.3d 325, 327 (9th Cir. 1995); Schalk v.

Reilly, 900 F.2d 1091, 1094 (7th Cir. 1990); Voluntary Pur-

chasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 (5th Cir.

1989), or they have not focused on the plain text of § 113(h),

see Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 293 (6th

Cir. 1991); Schalk, 900 F.2d at 1094; South Macomb Dispos-

al Auth. v. EPA, 681 F. Supp. 1244, 1251 (E.D. Mich. 1988).

EPA’s reliance on Shalala v. Illinois Council on Long Term

Care, 529 U.S. 1 (2000), is similarly unhelpful to its position.

First, the text of the statute in that case was much broader in

scope, prohibiting direct judicial review of any action ‘‘to

recover on any claim arising under’’ the Medicare Act. See

id. at 6. Second, because the text of the provision at issue, ‘‘if

read alone, [was] uncertain,’’ id. at 10, the Court relied upon

congressional purpose and its own precedents interpreting

the Medicare Act in concluding the Act barred review of

claims that certain regulations violated the Due Process

Clause. Id. at 10–15. Thus, Illinois Council is simply

inapposite.

The plain language of section § 113(h) bars pre-

enforcement review of agency actions only under §§ 104 and

106(a) of CERCLA. And while EPA would have the court

distinguish McNary on the ground that, unlike CERCLA

§ 113(h), which merely postpones judicial review, the immi-

gration statute barred all judicial review of application denials

and particular agency actions, the Court’s reasoning in

McNary was based on an interpretation of the plain text of

the statute; EPA has pointed to no principle that would make

the distinction between facial and as-applied constitutional

challenges any less relevant to a statute barring pre-

10

enforcement review of certain agency actions than to a stat-

ute precluding all judicial review.

For EPA to prevail, then, in contending that Congress

intended to preclude pre-enforcement constitutional chal-

lenges to the CERCLA statute, in contravention of the plain

text of § 113(h), it ‘‘must show either that, as a matter of

historical fact, Congress did not mean what it appears to have

said, or that, as a matter of logic and statutory structure, it

almost surely could not have meant it.’’ Engine Mfrs. Ass’n

v. EPA, 88 F.3d 1075, 1089 (D.C. Cir. 1996). See also

Appalachian Power Co. v. EPA, 249 F.3d 1032, 1041 (D.C.

Cir. 2001). EPA fails to meet this burden. EPA propounds

a ‘‘functional’’ interpretation, maintaining that, in light of the

congressional purposes underlying § 113(h), the applicability

of § 113(h) ‘‘turns not on the formal nature of the suit, but on

the functional question whether the suit would interfere with

a response action–or, as here, many response actions.’’ Ap-

pellees’ Brief at 19. For support, EPA culls CERCLA’s

legislative history and points to a floor statement by a single

senator that § 113(h) covers ‘‘all lawsuits, under any authori-

ty, concerning the response actions that are performed by

EPA.’’ 132 Cong. Rec. 28,441 (1986). This statement con-

trasts with the House, Senate and Conference Reports, see

H.R. Rep. No. 99–253(V), at 25–26 (1985); S. Rep. No. 99–11

at 58 (1985); H.R. Conf. Rep. No. 99–962, at 224 (1986), which

refer to legal challenges to the selection and implementation

of particular response actions, and thus the senator’s state-

ment is hardly persuasive evidence of congressional intent.

See Garcia v. United States, 469 U.S. 70, 76 (1984); United

States v. Ray, 21 F.3d 1134, 1138 (D.C. Cir. 1994). In any

event, the EPA’s functional approach ignores the plain lan-

guage of § 113(h), which limits the bar to any challenges to

removal or remedial actions under § 104 or any orders under

§ 106(a), not to facial constitutional challenges to the

CERCLA statute itself.

Finally, our interpretation of § 113(h) ‘‘does not necessarily

run counter to the purposes’’ underlying that provision.

Reardon, 947 F.2d at 1515. The concern expressed by the

district court, and echoed by EPA on appeal, was that, if

11

successful, GE’s constitutional challenge would have the effect

of hindering or delaying EPA’s cleanup of hazardous waste

sites, undermining Congress’ goals in enacting section 113(h).

General Electric, 257 F. Supp. 2d at 23. Or, as EPA con-

tends, GE’s pre-enforcement constitutional challenge is within

the scope of § 113(h) because a challenge to the CERCLA

statute is inherently a challenge to a response action when

the relief sought would have the effect of interfering with

EPA’s ability to issue orders and enforce clean-up operations.

These concerns cannot be lightly dismissed given the nature

of the hazards to health and the environment addressed by

CERCLA, and Congress’ overriding goal of preventing delays

in the cleanup of hazardous waste sites. However, the adju-

dication of a pre-enforcement constitutional challenge to

CERCLA’s UAO regime will not necessarily frustrate Con-

gress’ intent and, therefore, reliance on congressional purpose

cannot overcome our interpretation of the plain text of the

statute. A decision on GE’s due process claim that is favor-

able to GE would afford EPA an opportunity to provide due

process review at an early stage. A decision rejecting GE’s

due process claim would remove a later impediment to EPA’s

enforcement action. In addition, as the First Circuit ob-

served, the usual practical considerations counseling against

pre-enforcement review are not present in the adjudication of

a facial due process claim; it is a purely legal issue whose

resolution does not depend on the type of information avail-

able only after site clean-up is completed, and does not have

the potential of producing inconsistent programmatic results.

See Reardon, 947 F.2d at 1515.

Because Congress’s meaning as reflected in the plain text

of § 113(h) is compatible with the structure of CERCLA’s

administrative order regime, our inquiry is at an end, see

Gonzalez, 520 U.S. at 6, and we need not resort to the

doctrine of constitutional avoidance to support our interpreta-

tion of the text. See Dep’t of Hous. & Urban Dev. v. Rucker,

535 U.S. 125, 134–35 (2002); United States v. Oakland Can-

nabis Buyers’ Co-op., 532 U.S. 483, 484 (2001). Accordingly,

we hold, in light of the qualified scope of the judicial review

bar in § 113(h), that the district court erred in dismissing

12

GE’s amended complaint for lack of subject matter jurisdic-

tion, and we remand the case to the district court to address

the merits of GE’s facial due process claim.