GE Superfund Attack Rejected, Export-Import Bank, Heathrow & New Delhi Airports (by Bob Percival)

On Tuesday June 29 a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected General Electric (GE) Company’s decade-old challenge to the constitutionality of EPA issuing administrative cleanup order under the Superfund program. GE’s lawsuit was part of a vigorous effort to contest EPA’s issuance of a unilateral administrative order (UAO) requiring GE to clean up PCB contamination in the Hudson River. GE claimed that the Superfund law (the Comprehensive Environmental Response Compensation and Liability Act (CERCLA)) denied it due process because the only avenue it provided for challenging the UAO was to decline to obey it and to face treble damages. The court ruled that this procedure for challenging UAOs was sufficient to provide the company with due process and that any consequential injuries from a negative market reaction to the challenge did not give rise to a due process violation. A copy of the court’s decision is available HERE.

One interesting aspect of GE’s quixotic efforts to have CERCLA struck down on constitutional grounds is the liberal icon who the company hired to spearhead its legal attack - Harvard law professor Laurence Tribe. While Tribe recently joined the Justice Department and thus did not represent GE in the latest round of litigation, he began work for GE more than a decade ago when it sought to have the Clean Air Act struck down on non-delegation grounds in Whitman v. American Trucking Associations. That challenge was unanimously rejected by the U.S. Supreme Court despite an impassioned plea from Tribe for the Court to resurrect the non-delegation doctrine and invalidate EPA’s revisions of the national ambient air quality standards for ozone and particulates. Professor Tribe was equally unsuccessful in using his prestige as one of the country’s top constitutional law professors to attack the Superfund program.

After voting on June 24 not to support a sale of coal-mining equipment to India on environmental grounds, the U.S. Export-Import Bank is now reconsidering its decision. The Bank’s board had voted 2-1 to refuse support to a $600 million purchase of coal-mining equipment by Reliance Power of India from U.S.-based Bucyrus International. After Bucyrus argued that the decision could cost 1,000 jobs in Wisconsin, the Bank board reportedly is reconsidering it.

On Thursday July 1 China’s new tort law took effect. In late May I participated in a conference in Beijing that focused on the new law (see May 31, 2010 blog post), which is designed in part to make it easier for plaintiffs to recover damages for environmental harm. The law allows plaintiffs to recover punitive damages against companies that harm them. On Wednesday June 30 the U.S. Senate Environment and Public Works Committee voted to amend the Oil Pollution Act to remove its $75 million limit on economic damages from oil spills.

A major environmental initiative by the United Kingdom’s new coalition government led by Conservative David Cameron and Liberal Democrat Nick Clegg has been its rejection of plans to add an additional runway to Heathrow Airport. This decision was made largely on environmental grounds because expansion of the airport would result in significantly increased emissions from expanded UK air travel. This week a new $3 billion Terminal 3 was opened at Indira Gandhi International Airport in New Delhi, a long-overdue modernization of this aging facility that is being hailed as an illustration of a new can-do attitude toward infrastructure projects in India. A high-speed rail link from the airport to Connaught Place may open later in the year.

On Thursday night I took Vermont law professor Tseming Yang to see the Washington Nationals play the New York Mets. Tseming has just taken a leave of absence from Vermont to serve as a deputy general counsel for the U.S. Environmental Protection Agency (EPA) where he is coordinating the agency’s handling of global environmental law issues. Having him here in Washington should make it easier for us to finish the manuscript for our casebook on global environmental law. On Saturday afternoon I took Alan Miller from the International Finance Corporation, who is one of the co-authors of my environmental law casebook, to the Nationals game. Both Tseming and Alan must be good luck because the Nats rallied from behind and won both games in walk-off fashion in the bottom of the ninth.

I was intrigued to see that the four South American quarterfinalists in tthe World Cup this week were the four countries (Paraguay, Uruguay, Brazil and Argentina) who were combatants in the War of the Triple Alliance from 1864-1870. That disastrous war, in which Paraguay faced off against the other three countries, killed 95 percent of the adult male population in Paraguay. Today Paraguay’s soccer team remains the country’s number one source of national pride - justifiably so given their narrow 1-0 loss to Spain in the quarterfinals, which left Uruguay the only South American country in the semifinals.