Pay Now, Challenge Later: D.C. Circuit Court of Appeals Upholds Constitutionality of EPA Unilateral Administrative Orders in General Electric Company v. Jackson

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An important decision has upheld the government’s power to order private parties to take expensive cleanup actions with little ability to challenge the order until after completing the work. On June 29, 2010, the U.S. Court of Appeal for the D.C. Circuit upheld the constitutionality of the statutory scheme that allows the Environmental Protection Agency (“EPA”) to issue orders requiring potentially responsible parties (“PRPs”) to front the costs of hazardous waste cleanup or risk fines and punitive damages for the refusal to comply. General Elect. Co. v. Jackson, No. 1:00-cv-02855-JDB, Jun. 29, 2010. The orders, referred to as unilateral administrative orders (“UAOs”), are a major tool in EPA’s arsenal to force cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

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