Amicus Curiae Brief — General Electric Co. v. Jackson

NO. 10-87]

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Petition for a Writ of Certiorari t

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BRIE FOR THE CHAMBER OF COMMERCE ¢

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INTEREST OF AMICUS CURIAE !

The Chamber of Commerce of the United States

of America (the Chamber) is the world’s largest

business federation. The Chamber represents

300,000 direct members and indirectly represents

the interests of more than three million companies

and professional organizations of every size, in every

industry, from every region of the country. At least

98% of the Chamber’s members are small businesses

with 100 or fewer employees. An important function

of the Chamber is to represent the interests of its

members in matters before Congress, the Executive

Branch, and the courts. To that end, the Chamber

regularly files amicus curiae briefs in cases that

raise issues of vital concern to the Nation’s business

community. The Chamber participated as an amicus

in this case before both the court of appeals and the

district court.

This case is especially important to the Chamber

because of the Environmental Protection Agency’s

(“EPA’s”) longstanding pattern and _ practice of

issuing Unilateral Administrative Orders (“‘UAQOs’”)

as a matter of course, in non-emergency situations,

Pursuant to Sup. Ct R. 37 2(a), amicus cunae notified the

parties of its intent to file this brief 10 days prior to the date of

filing. The parties have consented to the filing of this bnef in

letters submitted herewith or on file with the Clerk. No

counsel for any party authored this brief in whole or in part,

and no person or entity, other than amicus cunae and its

counsel, made a monetary contribution intended to fund the

preparation or submission of this brief.

without providing any pre-deprivation process before

a neutral decisionmaker.

Administrative law is full of flexible procedures

that constitutionally balance the government’s need

for flexibility with private citizens’ right to due

process, including the right to a hearing before a

neutral decisionmaker before (or, in an emergency,

promptly after) any deprivation occurs. Nonetheless,

the D.C. Circuit blessed the Environmental

Protection Agency's (“EPA’s”) aberrational practice

of routinely issuing in non-emergency situations

aptly named Unilateral Administrative Orders,

without pre-issuance process before a_ neutral

decisionmaker, to any company it deems potentially

responsible for a violation of the Comprehensive

Environmental Response, Compensation, and

Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq

The D.C. Circuit's decision encourages EPA's

unbridled use of the coercive tool of UAOs to compel

companies to undertake costly site clean-ups,

irrespective of their liability for the underlying

environmental damage. That practice exposes

Chamber members to billions of dollars in costs,

damages, and devastating market impacts.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The question in this case is essentially whether

due process jurisprudence should account for the

enormous consequences EPA imposes when it

routinely employs a drastic administrative weapon

Congress designed only for emergencies. The court

of appeals acknowledged that the “consequences of

UAOs can be substantial.” Pet. App. 32a. Indeed, as

the district court found, UAOs can drive companies

out of business.

Companies have devoted billions of dollars to

complying with UAOs. But the consequences of non-

compliance, which are at issue here, are even

greater. A UAO immediately adjudicates the

company legally culpable and recalcitrant if it opts

not to comply. A UAO reduces the company’s stock

value and credit rating, which increases. the

company’s cost of capital. A UAO impairs the

company’s right to dispose of the relevant real

property. And companies have no realistic way to

challenge UAOQOs because there is no right to timely

judicial review (whether they comply or not).

Nonetheless, the D.C. Circuit held that those

substantial consequences trigger mo due_ process

scrutiny because they do not amount to a deprivation

of property. If that were correct, the Due Process

Clause would provide far more protection for the

repossession of a toaster than for the destruction of

millions of dollars in market value, and_ the

attendant limitations on the alienability of the

affected real property.

But the court of appeals’ extreme position

that “consequential” injuries categorically do not so

much as trigger due process concerns, in any

circumstances and no matter how grave the injury —

is incorrect. Indeed, it is contrary to this Court’s 20-

year-old decision in Connecticut v. Doehr, 501 U.S. 1

(1991), which recognizes that liens and_ similar

attachments may trigger due process protections.

The court of appeals’ strained interpretation,

moreover, would have dramatic consequences if left

uncorrected. A company’s impaired capacity to enter

into the financial markets and to secure equity and

debt financing critically undermines its ability to

provide services, make products, hire and retain

employees, pursue business opportunities and

upgrades, and make vital investments in research

and development in today’s economy. In dismissing

such harms to businesses’ fundamental property

rights as being constitutionally inconsequential, the

decision below sets a dangerous precedent by which

the executive and legislative branches can adjudicate

industry liability and coerce industry compliance

without the checks and balances of independent

judicial review afforded by the Due Process Clause.

The court of appeals further erred when it

concluded that the UAO scheme is insufficiently

coercive to violate the Due Process Clause under Ex

Parte Young, 209 U.S. 123 (1908), and its progeny.

The D.C. Circuit invoked the illusory specter that

UAO recipients may challenge them in court by

opting not to comply and awaiting an enforcement

action even though enormous daily penalties

could continue to accrue while EPA took full

advantage of a lengthy statute of limitations to let

the potential penalties become unbearable before the

agency would so much as file an enforcement action.

The extensive record in this case proves that the

penalties for noncompliance are so coercive that

nearly all UAO recipients have capitulated and paid

bilhons of dollars in clean-up costs rather than

invoke their right to judicial review. UAO recipients

simply cannot risk the consequences’. of

noncompliance. Those very real burdens cannot be

discounted, and they give rise to a violation of the

Due Process Clause under kx Parte Young

Precisely because EPA’s unilateral order

violate the most basic due process rights, they are an

outher in administrative’ law Numerou:

administrative law schemes provide pre-deprivation

process, or at least prompt post-deprivation proces:

in situations involving genuine emergencies. but

KPA admits that it does not use UAOs im

emergencies; instead, it uses them as a matter of

course in routine CERCLA matters and ha

therefore issued more than 1,700 UAQOs to more than

5,400 companies. Requiring EPA to provide basic

due process protections would merely bring its UAO

scheme into line with other regulatory schemes. In

contrast, sanctioning this UAO regime would give

other agencies every incentive to mimic it, furthe:

underscoring the importance of the issue

ARGUMENT

THE DECISION BELOW UNDULY LIMITS

CONSTITUTIONALLY COGNIZABLE

DEPRIVATIONS OF “PROPERTY.”

\. The Decision Below Creates Confusion

Over Whether Consequential Injuries

Trigger Due Process Protections.

Questions of procedural due process entail a

familiar two-step inquiry: first, whether’ the

challenged deprivation was a demal of “property” o1

“hberty” within the meaning of the due proces:

clause; and _ second, whether’ the procedure:

attendant to any deprivation are constitutionally

sufficient. See Ky. Dep't of Corr. v. Thompson, 490

6

U.S. 454, 460 (1989). The decision below strained to

dismiss the significant harms that UAQOs effect on

recipient companies at the first, threshold step

holding categorically that “consequential injuries,”

no matter how severe, do not implicate due process

at all. Pet. App. 13a-23a.

While not every injury amounts to a cognizable

denial of “property,” see Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972), this Court has continually

made clear that whether a challenged deprivation

triggers due process protections depends very much

on its consequences. In Peralta v. Heights Med. Ctr.,

Inc., 485 U.S. 80 (1988), for example, this Court held

that “state procedures for creating and enforcing

liens are subject to the strictures of due process’

where the lien’s very issuance triggers “serious

consequences.” Id. at 85; see also id. at 8&6

(emphasizing “substantial adverse consequences’ )

The Court explained that even when no execution

sale of the property has yet occurred, the very filing

of the hen creates “a cloud on appellant's title,”

“encumber|[s] the property and impair[s] appellant's

ability to mortgage or alienate it.” /d. at 82, 85

That the “judgment against [a party] and the

ensuing consequences occurred without notice ... and

an opportunity to be heard” amounted to a duc

process violation. Jd. at 86 (emphasis added); see

also Mitchell v. W.T. Grant Co., 416 U.S. 600, 604

(1974); lodge v. Muscatine County, 196 U.S. 276,

281 (1905).

In Connecticut v. Doehr, 501 U.S. 1 (1991), this

Court directly imported that holding about lens into

the context of attachments and similar

encumbrances on property “Without doubt,” the

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Burns v. Pa. Dep't of Corr., 544 F.3d 279, 281, 288-91

(3d Cir. 2008) (assessment of inmate account. for

medical expenses, even absent deduction of funds,

was cognizable deprivation of property); Tenn. Valley

Auth. v. Whitman, 336 F.3d 1236, 1258-59 (Lith Cir

2003) (administrative complance order was more

than “merely a complaint-lhke instrument with no

legal significance” and violated due process); (U/nited

States v. 408 Peyton Road SW, 162 F.3d 644, 650-51

(lith Cir. 1998) (en banc) (arrest and seizure

warrants for property, even absent physical seizure,

were cognizable deprivations of property); Reardon

v. United States, 947 F.2d 1509, 1523 (1st Cur. 1991)

(en banc) (CERCLA len, even absent a final lability

determination, was cognizable due process

deprivation).

The D.C. Circuit, however, adopted the extreme

position that “nothing” even “implies” — that

consequential injuries can merit due process

protection. Pet. App. 6a. The D.C. Circuit read

Doehr only for the narrow and limited proposition

that consequential mnjuries may impact. how much

process 1s due, but not the antecedent issue “whether

attachment requires due process protection.” Pet

App. 15a-17a (emphasis 1n original). That strained

parsing cannot be squared with this Court’s opinion,

which explicitly desecnmbed the aforementioned

“consequences” on title, alienability, and financing as

“property interests that attachment affects” and that

“trigger due process concern.” 501 U.S. at 11-12

(emphasis added).

Nor can that narrow view of the relevance of

consequential injuries be squared with decisions of

the First, Second, and Third Circuits and numerous

1]

consequences can literally put smaller businesses

out of business, as the district court recognized. Pet.

App. 77a. And while a company may or may not be

greater than the sum of its parts, its very existence

is surely a weightier due process interest than the

toaster in its lunch room, which cannot be reclaimed

without due process protections. Cf. Fuentes v.

Shevin, 407 U.S. 67, 89-90 (1972).

It is also completely unnecessary for EPA to

Impose those burdens unilaterally, without process

before a neutral decisionmaker. KPA has

alternatives for forcing a party to clean up a site in a

non-emergency situation that comply with due

process. lor example, Congress authorized EPA to

seek an order from a federal district court compelling

a company to perform a= clean-up. iZ U.S.C.

§ 9606(a). But few seek judicial approval for that

which they can compel unilaterally, and thus EPA

has preferred UAQOs to the rigors of providing notice

and an opportunity to be heard. Asa result, EPA no

longer goes to court to seek a clean-up. order.

Instead, 1t relies upon the expedience of UAOs and

has issued over 1,700 of them to more than 5,400

companies Which averages “approximately six

UAQOs to nineteen {companies] every month.” Pet

App. 82a. It is certainly understandable that HPA

would choose to issue unilateral orders rather than

prove its case before a neutral decisionmaker. But

the Due Process Clause does not leave that choice

Nevertheless, the decision below treats the

severe burdens that UAOs pose on their recipients

as legally irrelevant. It ignores how, in the modern

economy, Impauring businesses’ capacity to enter into

ie

the financial markets and to secure equity and debt

financing dramatically undercuts their provision of

good and services, hiring, and critical investments In

business upgrades and research and development

See Pet. 27-28. By giving EPA a blank check to

impose such devastating burdens on the property

rights of businesses through routine adjudicatory

acts, the decision below sets a troubling precedent,

encouraging other agencies to adopt similar schemes

insulated from the checks and_ balances’ of

independent judicial review. The D.C. Circuit's

opinion, if left unreviewed, invites” regulatory

overreach with rippling effects well beyond the

CERCLA context. CERCLA alone has generated

well over $5 billion in response costs by complying

recipients. If the executive and legislative branches

use umlateral orders to adjudicate industry habuility

other contexts without heed to economic realities or

due process restrictions, businesses will no doubt be

saddled with billions more in coerced complance

costs and exponentially greater harms.

Il. THE UAO REGIME IS

EXTRAORDINARILY COERCIVE.

The UAO scheme violates due process for the

additional reason that CERCLA’s penalties are “so

enormous ... as to intimidate” UAO recipients from

“resorting to the courts to test [an order’s}] validity”

before complying with it. Ex Parte Young, 209 U.S.

123, 147 (1908). The D.C. Circuit based its contrary

holding on the assumption that recipients can

readily obtain pre-deprivation judicial review of a

UAO by refusing to comply and forcing EPA to sue

them in court. That assumption blinks reality.

13

It ignores statistical realities, as borne out by

the uniquely developed record in this case.

Kixperience amassed over the last three decades has

shown that of the more than 5,400 recipients of

UAQOs, “very few ... have ever dared defy a UAO in

order to challenge its validity through independent

judicial review.” Pet. 25; see also Pet. 20-21. Only a

bare handful of UAO recipients have ever sought or

obtained independent judicial review of an order.

See Pet. 8, 21.

It also blinks economic realities. The costs of

comphance are significant; UAO recipients have

spent over $5 billion in response costs at CERCLA

sites over the past thirty years. See Pet. 3. But the

costs of non-compliance are undeniably greater. A

party that does not greet a UAO with immediate

complhance faces penalties of up to $37,500 per day.

See id.; see also 42 U.S.C. §§ 9606(b)(1), 9607(c)(3);

40 C.F.R. § 19.4. These severe penalties accrue until

EPA, 1n its sole discretion, decides to bring suit after

the agency has funded a clean-up. Penalties can

total $36 million when, as in the average case, the

clean-up takes three years. Penalties can top $130

million when EPA waits the full six years to bring

suit against the UAO recipient, as is its statutory

right. See 42 U.S.C. § 9613(g)(2). EPA, moreover,

may seek punitive damages of up to three times the

clean-up costs. See 42 U.S.C. § 9607(c)(3). This is,

quite simply, regulation-by-sledgehammer.

At the same time, a non-complying UAO suffers

market impacts on its stock price, brand value, and

cost of financing that dwarf these severe fines and

penalties. Those market impacts have immediate

real-world impact on a company’s ability to hire and

14

its relationships with stakeholders. Worse, those

impacts can plague a company for years as the

government “take[s] its own sweet time before

suing,” Pet. 21 (citation omitted) —- leaving the

company with no _ hearing before a_ neutral

decisionmaker until EPA brings suit many years

later. See 28 U.S.C. § 2462.

At bottom, UAQOs are so highly coercive that the

recipient has no real choice but to comply. Although

the D.C. Circuit inexplicably deemed the non-

compliance rate “sufficiently numerous” to foreclose

any suggestion that UAO recipients are coerced into

compliance, id., that completely misses the mark.

By any measure, very few UAO recipients have ever

opted not to comply with a UAO 1n order to challenge

it in court.

Given the substantial costs of comphance, the

real question is why any company would foot the bill

before its day in court. The fact that all but a

handful of the thousands of UAO recipients pay the

substantial costs of compliance is_ irrefutable

evidence that the coercion is_ real. The few

companies that elected to seek judicial review are

isolated exceptions that merely prove the rule —

companies that either lacked the resources to comply

with a UAO and were forced to take their chances, or

perhaps miscalculated and served as a cautionary

tale for industry peers. For all but the truly

desperate or reckless, non-complhance is only an

illusory option — available in theory, but not a

meaningful path to judicial review in practice. The

“result is the same as if the law in terms prohibited

the [party] from seeking judicial [review]}” at all. Ex

Parte Young, 209 U.S. at 147.

a

15

Thus, despite the impositions of thousands of

UAOs and bilhons of dollars in attendant labilities

over three decades, courts have played little role in

overseeing UAOs. In effect, legal standards

governing UAQOs and EPA's issuance of them remain

as non-existent as they were at the incipience of

EPA’s UAO practice.

The court of appeals erred by treating the

theoretical availability of judicial review, instead of

the proven reality of the situation, as dispositive. Ex

Parte Young explicitly called for courts to look not to

possibilities in the abstract, but to concrete

“result{s}].”. Jd. Yet the D.C. Circuit erroneously

determined that UAO recipients face no dilemma

only by discarding the “result[s]” of the last three

decades. The D.C. Circuit stated that a non-

complying company would not necessarily face the

onerous fines and penalties associated with non-

compliance, because a court must find that the UAO

was proper and that the recipient “willfully” failed to

comply “without sufficient cause,” see 42 U.S.C.

§§ 9606(b)(1), 9607(c)(3), and retains the discretion

to withhold fines and treble damages.

In actuality, the purported “safeguards” afford

cold comfort to UAO recipients — which is why

recipients overwhelmingly choose to incur the high

costs of compliance. Pet. App. lla. That companies

could theoretically avoid a massive contingent

liability if they had “sufficient cause” not to comply

is of litthe moment where recipients are at a loss as

to what defenses are “sufficient.” See Solid State

Circutts, Inc. v. EPA, 812 F.2d 383, 391 (8th Cir.

1987) (calling on EPA to develop guidance on the

contours of “sufficient cause”); cf. Reisman v. Caplin,

16

375 U.S. 440, 446-50 (1964) (contemplating less

vague “good faith” defense). Similarly, that courts

theoretically “may” exercise judicial discretion over

CERCLA penalties is of little significance where

companies have little inkling as to whether or how a

court would exercise that discretion in any given

case. And the proof is in the proverbial pudding —

the fact that virtually every UAO recipient chooses

to incur high compliance costs instead of risk the

consequences of non-compliance is all one needs to

know about the unilateral orders’ extremely coercive

effect.

Wi. THE UAO SCHEME IS AN ABERRATION

AMONG ADMINISTRATIVE LAW

STATUTES.

The UAO scheme’s deviation from fundamental

due process principles is underscored by its deviation

from other administrative law regimes. EPA’s

unilateral orders are so coercive, and_ their

consequences so dire, that one would expect

heightened procedures to apply to their issuance.

Yet EPA routinely issues UAQOs with significantly

less process than other agencies use in

circumstances implicating far less weighty private

interests and far greater exigencies.

Other comparable regulatory schemes afford

recipients of adjudicatory orders either a_ prior

hearing before a neutral decisionmaker or a prompt

opportunity for independent review after the order is

issued. See Pet. 23 & n.11. CERCLA’s UAO scheme

does neither. Indeed, it not only fails to provide

prompt’ pre-deprivation review, it expressly

precludes such review by stripping federal courts of

17

jurisdiction to hear declaratory challenges. See 42

U.S.C. § 9613(h) (precluding federal court challenges

to UAOs until orders are complied with or EPA

brings suit). Holding EPA to bedrock constitutional

requirements would hardly threaten the operation of

the modern administrative state. To the contrary, it

would bring the aberrational UAO scheme in line

with the procedures already adhered to by other

agencies.

1. Most administrative law statutes provide

pre-deprivation process. That 1s so even when the

private interests are less weighty and there is a

more pronounced governmental urgency. The

Consumer Product Safety Act, 15 U.S.C. §§ 2051-

2089, for example, requires the Consumer Product

Safety Commission (“CPSC”) to file a district court

action against an “imminently hazardous consumer

product” and its manufacturer, distributor, or

retailer, where the product presents an’ “imminent

and unreasonable risk of death, serious illness, or

severe personal injury.” Id. § 206 1(a).

Notwithstanding the grave hazards posed by the

product, Congress still requires the CPSC to bring

an action in an Article III court before halting the

manufacture or distribution of the product. See id.

§§ 206 1(a), (b).

In similar fashion, the Occupational Safety and

Health Act, 29 U.S.C. §§ 651-678, requires the

Secretary of Labor to petition a federal district court

if it seeks to “restrain any conditions or practices in

any place of employment.” Jd. § 662(a). Again, the

statute requires such pre-deprivation judicial

process even where the underlying violations can

18

reasonably be expected to “cause death or serious

physical harm immediately.” Jd.

Likewise, the Toxic Substances Control Act, 15

U.S.C. §§ 2601-2692, requires the EPA

Administrator to commence a civil action in federal

district court in order to seize an “imminently

hazardous chemical substance” or obtain relief

against persons who manufacture, process,

distribute, or use such substances. See id. § 2606.

In regulatory schemes that do not involve a

pronounced interest in speed, as_ here, pre-

deprivation process is even more common. _ For

instance, under the Federal Trade Commission Act,

15 U.S.C. §§ 41-58, the Federal Trade Commission

may bring suit in federal district court to seek an

injunction where a person “is violating, or is about to

violate, any provision of law enforced by the

[Commission]” and an injunction “would be in the

interest of the public.” Jd. § 53(b).

2. In true emergencies readily distinguishable

from the circumstances in which EPA employs

UAOs, administrative law statutes typically provide,

at a minimum, for prompt post-deprivation process.

The Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.,

authorizes the Secretary of Energy to issue orders to

“prohibit the dissemination” of sensitive information

related to nuclear weapons and atomic energy, in

light of the critical governmental interests in secrecy

concerning nuclear weapons and energy and the

prevention of nuclear proliferation. Jd. § 2168(a)(2).

The Secretary may issue such orders where

“dissemination of such information could reasonably

be expected to have a significant adverse effect on

the health and safety of the public or the common

defense and security by significantly increasing the

likelihood of (A) illegal production of nuclear

weapons, or (B) theft, diversion, or sabotage of

nuclear materials, equipment, or facilities.” /d. But

anyone affected by such an order may seek

immediate judicial review. See id. § 2168(d) (citing 5

U.S.C. § 552(a)(4)(B)). Even in this near-doomsday

scenario, the statutory regime provide: for

immediate post-deprivation review

Similarly, the Securities Exchange Act of 1934

15 U.S.C. §§ 78a et seq., compensates for the lack of a

pre-deprivation remedy by providing prompt post

deprivation process Id. § 7T8y(a) The Act

authorizes the Securities and Exchange Commission

(“SEC”) to summarily take action to restore order to

financial markets and ensure proper settlement of

transactions in emergencies namely, “major

market disturbance[s]” such as “sudden and

excessive fluctuations of securities prices generally”

or major disruption to “the functioning of securitie:

markets.” Jd. §§ 78l(k)(2), (7)(A). Even in these

emergency situations, however, the Act provides for

expeditious post-deprivation review in a United

States Court of Appeals. Id. § 78y(a)

The Commodity Futures Trading Commussion

Act, 7 U.S.C. §§ 1 et seq., likewise allows unilateral

action in emergencies but permits post-deprivation

judicial review. The Act authorizes the Commodity

futures Trading Commission (“CITC”) “to direct”

certain parties to set “temporary emergency margin

levels on any futures contract” when the Commission

“has reason to believe that an emergency exists.” Id

§ 12a(9). But it also permits an affected party t

seck review immediately before a United State:

Court of Appeals. Jd

Meanwhile, the Clean Air Act, 42 U.S.C. §§& 740]

et seq., allows the EPA Administrator to issue

“emergency orders where “necessary to protect

public health or welfare or the environment” without

filing a civil action in federal court, as it would in an

ordinary abatement action. /d. § 76638. But even

these emergency orders can remain in effect for “not

more than 60 days,” unless the KPA Administrator

brings an action in federal court to seek an

extension. [Id

3 Another category of administrative law

statutes provides dual tracks for emergency and non

emergency situations Those statutes — reflect

Congress's understanding that the degree of du

process protection 1s appropriately tethered to thi

degree of underlying exigency

Under the Federal Aviation Act, 49 U.S.C

§§ 40101 et seqg., the Admunistrator of the Federal

Aviation Administration may suspend or revoke an

operating license for purposes of safety or otherwise

to protect the public interest. Jd. § 44709(b). Notice

and “an opportunity to answer” are mandated,

“le}Jxcept in an emergency. ZJd. § 44709(c). In an

emergency, the Administrator's order become:

effective immediately, id. § 44709(e)(2), but the

affected party may immediately submit a petition for

review by the National Transportation Safety Board

(“NTSB”), 1d. § 44709(e)(3). The NTSB must review

and decide the petition no more than five days afte:

it is filed. Id

‘>

4

The Surface Mining Control and Reclamation

Act, 30 U.S.C. §§ 1201-1328, employs a similar dual

scheme. In non-emergency situations, the Secretary

of the Interior, who has authority to investigate

violations, must “issue a notice to the permittee” and

“providi[e} opportunity for public hearing.” Id.

§ 1271(a)(3). By contrast, in emergency situations

involving “imminent danger to the health or safety of

the public” or “imminent environmental harm,” the

Secretary has authority to issue a cessation order

without providing pre-deprivation process. ld.

§ 1271(a)(2).. The adversely affected party, however,

may immediately seek relief from the order, and the

Secretary must respond to the request within five

days. Jd. § 1275(c). If unsuccessful, the affected

party may then seek an_ adjudicatory hearing

followed by judicial review. Id. § 1276. Because the

“mine operators are afforded prompt and adequate

post-deprivation administrative hearings and an

opportunity for judicial review,” these emergency

cessation orders. provide adequate due process.

Hodel, 452 U.S. at 303.

Likewise, the Federal Insecticide, Fungicide and

Rodenticide Act, 7 U.S.C. §§ 136-136y, distinguishes

between “imminent hazard” situations and

“emergency situations. See id. § 136d(c). If the

KPA Administrator determines that suspension of a

pesticide registration 1s necessary to prevent an

“Imminent hazard,” he or she must notify the

registrant prior to any suspension so the registrant

has an opportunity to seek an administrative

hearing as to whether an “imminent hazard” in fact

exists. Jd. § 136d(c)Q1). Any hearing, moreover,

must take place witiun five days of the request for

that hearing. Jd. § 136d(c)(2). Any final order

following an expedited hearing is then subject to

immediate judicial review in district court. /d.

§ 136d(c)(4). If, on the other hand, the EPA

Administrator determines that an “emergency”

prevents a pre-suspension administrative hearing,

the suspension is immediately reviewable by a

district court. Id. § 136d(c)(3)-(4).

4. Against that broader background © of

administrative practice, EPA’s UAO | scheme

represents an extreme outler. To be sure, as the

D.C. Circuit noted, EPA issues similar orders under

other environmental statutes and requires recipients

to comply without affording prior trial-type hearings.

See Pet. App. 33a (citing C.A. Amicus Br. of Nat.

Res. Def. Council, et al. 30-33, which cited provisions

of the Clean Air Act, 42 U.S.C. § 7413, Clean Water

Act, 33 U.S.C. § 1319, and Resource Conservation

and Recovery Act, 42 U.S.C. §§ 6934, 6973). But the

EPA’s broader pattern and practice of issuing

onerous unilateral admunistrative orders only

underscores the practical importance of the issue.

Tellingly, a number of lower courts have

expressed skepticism of the constitutionality of the

orders EPA issues under other environmental

statutes. In the most striking example, the Eleventh

Circuit held unconstitutional the Clean Air Act’s

scheme for issuing “administrative compliance

orders.” Tenn. Valley Auth., 336 F.3d at 1258-59; 42

U.S.C. § 7413. The Eleventh Circuit reasoned that,

to the extent that noncomplhance with the orders

triggered severe civil and criminal penalties without

a “full and fair hearing before an impartial tribunal,”

the statute violated fundamental principles of due

ye

process. Tenn. Valley Auth., 336 F.3d at 1258-60; see

also Sackett v. EPA, 622 F.3d 1139, 1145 (9th Cir.

2010) (adopting narrowing construction of Clean

Water Act comphance orders provision but noting

that “literal” reading of CWA ... could indeed create

a due process problem”); Armco, Inc. v. EPA, 124 F.

Supp. 2d 474, 477-78 (N.D. Ohio 1999) (concluding

that a Resource Conservation and Recovery Act

order comported with due process, but warning EPA

that “the Court can conceive of some _pre-

enforcement orders where due process concerns

would be implicated’).

That makes this Court’s review of the UAO

scheme all the more critical. There 1s nothing

unique about EPA, CERCLA, or any other

environmental statute that would warrant an

exception to the fundamental principles of due

process that are widely applied by other agencies.

To the contrary, as noted above, some. other

environmental statutes require EPA to follow

traditional due process principles, and there 1s no

indication that those statutes have proven to be

unworkable. In addition, EPA’s capacity under

CERCLA to seek an abatement order in court or to

undertake clean-ups directly shows that there is no

need for EPA to issue UAOs even in true

emergencies. Pet. App. 182a. In fact, EPA has

admitted that it does not issue UAOs in true

emergencies. ‘That makes it absurd for EPA to issue

UAOs without traditional due process protections in

routine, non-emergency = situations, especially

considering the severe and immediate consequences

for UAO recipients.

:ul D. Clemen

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