Friday, March 05, 2004
By Devlin Barrett, Associated Press
WASHINGTON — A federal appeals court has revived a lawsuit challenging
the constitutionality of the 1980 Superfund law that allows the
government to assess polluters for cleaning up toxic waste sites.
The unanimous decision by a three-judge panel of the U.S. Court
of Appeals directs a lower court judge to reopen General Electric
Co.'s suit against the Environmental Protection Agency arising out
of a planned $500 million cleanup of the upper Hudson River.
U.S. District Court Judge John D. Bates wrongly dismissed the suit
a year ago when he ruled GE didn't have standing to bring it until
after EPA issued a cleanup order requiring the company to pay the
entire cost of removing carcinogenic PCBs it had dumped into the
river since the mid-1940s, the panel said.
Environmental groups decried the ruling released this week, fearing
it could set a precedent that would allow other toxic polluters
to stall cleanups. The 1980 law provides that companies proven to
have dumped toxic chemicals have to pay to clean them up.
Katherine Kennedy of the Natural Resources Defense Council said
lawsuits like GE's can "slow down the process by the inherent
threat, by saying they're cooperating in New York at the same time
they're pressing this legal claim in Washington."
The EPA has issued more than 1,000 such orders since the Superfund
program was created. GE filed a suit challenging the constitutionality
of the Superfund law in November 2000, just before the EPA announced
a preliminary plan for dredging PCB-contaminated pockets along the
upper Hudson River.
The lawsuit claimed the Superfund statute violates due process
rights by giving regulators unchecked authority to order costly,
intrusive cleanups with no chance at a timely review by the courts.
In its 12-page ruling, the three-judge panel took note of the government's
claim that a GE victory in the case "would have the effect
of interfering with EPA's ability to issue orders and enforce clean-up
operations."
"These concerns cannot lightly be dismissed given the nature
of the hazards to health and the environment addressed (by the law),"
the panel said. But it said an early court decision on GE's claim
would likely remove the possibility of a similar legal delay later.
EPA spokeswoman Bonnie Bellows cited the failure of previous legal
challenges to the Superfund law.
"At this point, we are proceeding with our enforcement powers
under the existing law and we're also optimistic that the court
will uphold the constitutionality of Superfund," said Bellows.
Kennedy said she was confident the EPA would ultimately win the
case, and that such a victory would then dissuade other companies
from using the courts to delay or deter enforcement.
GE spokesman Mark Behan said the company should be allowed to dispute
an EPA Superfund decision early in the bureaucratic process, before
it has shelled out millions of dollars.
"Just as every person in America faced with a government order
has the right to appeal to an impartial judge, a company faced with
an order from the Environmental Protection Agency to undertake a
project of unlimited scope and duration has the right to a timely
hearing in front of an impartial judge," Behan said.
GE negotiated two agreements with the EPA in 2002 for designing
the PCB-dredging project. The company is currently negotiating a
third, final agreement on the cleanup itself.
Behan said GE already has already spent about $70 million on planning
the dredging operation.
More than a million pounds of PCBs, or polychlorinated biphenyls,
were released by two General Electric plants into the river between
1946 and 1977, the year the federal government banned chemical compound
as a probable carcinogen. A 197-mile stretch of the river has been
declared a Superfund site.
The appeals court decision was written by Judges Douglas Ginsburg,
Judith Rogers, and David Tatel. Ginsburg was appointed to the court
by President Ronald Reagan. Rogers and Tatel were appointed by President
Bill Clinton.
In trading, GE shares were up 5 cents to close at $32.90 on the
New York Stock Exchange.
Source: Associated Press |