Academic journal article Environmental Law

When Plain Language May Not Be Plain: Whether CERCLA's Preclusion of Pre-Enforcement Judicial Review Is Limited to Actions under CERCLA

Academic journal article Environmental Law

When Plain Language May Not Be Plain: Whether CERCLA's Preclusion of Pre-Enforcement Judicial Review Is Limited to Actions under CERCLA

Article excerpt

I. INTRODUCTION

During the past three decades, Congress has passed numerous laws designed to meet a variety of environmental problems. The same environmental problem may be subject to several different statutes dictating conflicting solutions. For example, hazardous waste disposal and cleanup is an area that is controlled by two main statutes, the Resource Conservation and Recovery Act (RCRA)(1) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).(2) Congress enacted RCRA in 1976 as a comprehensive approach to hazardous waste disposal--a "cradle-to-grave" statute for hazardous waste.(3) However, not long after RCRA's passage, Congress realized that while RCRA addresses active hazardous waste sites, it leaves the problem of inactive or aban doned hazardous waste sites unsolved.(4) In response, CERCLA established a liability system designed to ensure the cleanup of sites contaminated by hazardous waste.(5) In 1986, Congress amended CERCLA with the Superfund Amendments and Reauthorization Act of 1986 (SARA).(6)

CERCLA gives judicial review authority exclusively to federal courts.(7) However, section 113(h) of CERCLA bars federal jurisdiction over challenges to ongoing cleanup actions taken under CERCLA.(8) For example, if the Environmental Protection Agency (EPA) orders a party to undertake a cleanup at a site,(9) section 113(h) does not allow the party to challenge the order, or even liability in general, until EPA has taken some enforcement action against the party.(10) A potentially responsible party (PRP)(11) who wishes to challenge the legality of the order has two choices. She may comply with the administrative order and petition for reimbursement of costs incurred(12) or she may violate the administrative order. If the EPA then cleans up the site, the PRP may be liable for the cost of the cleanup under section 106 and potentially even punitive damages.(13) PRPs are not the only parties who may be affected by section 113(h). Similarly, citizens' groups who wish to challenge the cleanup must wait until the cleanup action has been "taken."(14) For groups alleging that the cleanup violates environmental laws such as RCRA or the Clean Water Act,(15) challenging the cleanup after it has occurred will be too late; the violation may have already happened.

The dilemma faced by those who wish to challenge cleanups has led parties to try to circumvent section 113(h) by asserting that the section does not apply to challenges brought under laws other than CERCLA.(16) Most courts have rejected this argument.(17) Although barring federal jurisdiction over challenges "may in some cases delay judicial review for years, if not permanently, and may result in irreparable harm to other important interests,"(11) allowing federal jurisdiction for a suit brought under RCRA or the CWA involving an ongoing removal or remedial action could delay the CERCLA cleanup. This delay could potentially result in further environmental degradation.

While most of the case law has been consistent in holding that section 113(h) applies to laws other than CERCLA, there are two exceptions in the federal circuits. The Tenth Circuit, in United States v. Colorado,(19) allowed Colorado to bring a suit under RCRA while a CERCLA action was still underway,(20) and the Third Circuit, in United States v. Princeton Gamma-Tech, Inc.,(21) recently recognized an exception to section 113(h) when the challenged cleanup could cause "irreparable harm to the public health or the environment."(22) These cases stand in marked contrast to the Ninth Circuit decisions dealing with section 113(h), McClellan Ecological Seep age Situation v. Perry(23) and Razore v. Tulalip Tribes of Washington,(24) which interpreted the section more broadly. This Chapter will discuss the proper reading of section 113(h), and whether the holdings in United States v. Colorado and Princeton Gamma-Tech should influence future decisions regarding pre-enforcement judicial review. …

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