Scott Corley


With the Deepwater Horizon oil drill disaster in 2010 and the disaster at Japan's Fukushima Dai-Ichi nuclear power plant in 2011, more attention has recently been focused on the government's role in responding to and recovering from environmental disasters. In the U.S., the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is one of the statutes that allows the EPA to respond to environmental pollution and the inappropriate disposal of hazardous wastes. Businesses have long claimed that CERCLA goes too far in the power it grants the EPA to order private parties to clean up hazardous waste sites, and this Note explores the newest claim that the courts have been asked to consider in this debate: whether the EPA's pattern and practice of enforcing the law is unconstitutional because (1) it subjects companies to the imposition of such high fines and severe penalties that they have no choice but to comply with the law, or because (2) the EPA fails to provide adequate procedural protections to businesses assessed with environmental liabilities. This Note highlights three criteria that are likely required for a successful constitutional challenge to CERCLA: (1) the challenging parties must be deprived of interests that go beyond the purely financial; (2) challenging parties must be completely precluded from any pre-enforcement review; and (3) the delay of judicial review must actually cause the complete preclusion of judicial review. After highlighting these factors, the Note examines the ironic result that the entities that have challenged CERCLA most fervently are entities that have the weakest case for a potentially successful challenge to the statute. The Note goes on to suggest that there is a class of businesses and entities affected by the statute that have a much stronger constitutional claim, but that members of this class of businesses have been unable to mount serious challenges to the statute because of the severe costs and penalties they would face if they denied an EPA order. In order to deal with this problem, this Note suggests that courts, when considering a pattern and practice challenge to CERCLA, should ask whether there is a class of businesses whose constitutional rights to due process are infringed when they are assessed environmental liabilities without any chance to challenge them. In the alternative, the EPA or Congress should establish either official rules or legislation that prevent the agency from assessing environmental liabilities against smaller, more vulnerable businesses until after the business has an opportunity to make its case before a neutral third-party decision-maker.



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