In a move that has significant ramifications for the multi-million dollar PCB-cleanups of the Hudson and Housatonic rivers, the United States Supreme Court decided not to hear arguments in General Electric v. Lisa Jackson, administrator, Environmental Protection Agency, No. 10-871., clearly resolving the issue in favor of the US EPA.
According to Lawrence Hurley of Greenwire:
GE had previously lost both in the U.S. District Court for the District of Columbia and the U.S. Circuit Court of Appeals for the District of Columbia
The company’s lawyers, led by Kathleen Sullivan of the Quinn Emanuel Urquhart & Sullivan firm, had argued that the orders violate the due process clause of the Fifth Amendment.
The process deprives companies of due process because any judicial review is conditioned on the threat of treble damages and fines, Sullivan wrote in GE’s brief.
Furthermore, the imposition of cleanup costs reduces a company’s stock price and credit rating, which could be viewed as a “deprivation of property” under the due process clause, she added.
Since the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), popularly known as Superfund, was passed in 1980, more than 5,000 companies have been ordered to conduct cleanup operations.
Superfund provides “broad Federal authority to respond directly to releases or threatened releases of hazardous substances that may endanger public health or the environment.”
While the cleanup of the Hudson River is a direct result of a Superfund action, the cleanup of the Housatonic River in Berkshire County is proceeding under different Federal legislation, RCRA, the Resource Conservation Recovery Act. Nevertheless, Berkshire County environmentalists were worried that any Supreme Court support for GE’s position might undermine the growing demand for GE to clean the extensive PCB-contamination of the Housatonic south of Pittsfield.