Court urged to dismiss GE lawsuit challenging Superfund law provisions
NEW YORK (April 6, 2001) - Environmentalists this week urged a federal court to dismiss a lawsuit brought by General Electric (GE) challenging provisions of the "Superfund" law that authorize the Environmental Protection Agency to order the speedy cleanup of hazardous waste sites.
The lawsuit is part of several efforts -- including an estimated $60 million anti-dredging publicity campaign -- by GE to defeat the EPA's plan for a clean up of the Hudson River to remove sediments contaminated with the toxic chemical polychlorinated biphenyls ("PCBs.") Two GE plants discharged PCBs into the Upper Hudson for over thirty years. Environmentalists claim the lawsuit was timed to coincide with the public comment period for the cleanup plan.
"Under existing Superfund law, GE will have its day in court," said Katherine Kennedy, senior attorney for NRDC. "If GE gets its wish in this case and the court allows polluters to sue before cleaning up, GE would then use its vast resources to delay the cleanup of the Hudson River for decades more."
Attorneys for NRDC (Natural Resources Defense Council) along with Georgetown University Law Center attorney Lisa Heinzerling filed a "friend of the court" brief with the United States District Court for the District of Columbia on behalf of Hudson River Sloop Clearwater, New York Rivers United, Riverkeeper, and Scenic Hudson this week.
In the pending lawsuit, GE has argued that provisions of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), commonly known as the Superfund law, are unconstitutional under the Due Process Clause of the Fifth Amendment. Numerous federal courts have held that CERCLA's administrative orders and enforcement provisions are constitutional and provide sufficient due process, according to the brief for environmental amici.
"This latest lawsuit is yet another cynical and misguided attempt by General Electric to avoid its responsibility as a polluter, both here in the Hudson Valley and across the nation," said Scenic Hudson, Inc. General Counsel Warren P. Reiss.
"The Superfund provisions that GE now challenges have been in place for many years, and have been upheld by numerous appellate courts," said Reiss. "The timing of this latest attack -- on the brink of EPA's upcoming decision on the Hudson River cleanup -- is simply further evidence of the degree to which GE will go to avoid paying the true costs of its environmental profiteering."
As the amicus brief points out, CERCLA was passed after contamination of the Love Canal site in Niagara Falls, New York in 1978 made clear that existing federal environmental and disaster relief laws were inadequate tools for disasters causing severe damage to public health and the environment.
For a thirty-year period from 1947 to 1977, GE discharged an estimated 1.3 million pounds of PCBs into the Hudson River from two GE manufacturing plants located in Fort Edward and Hudson Falls, New York. Many of these discharges remain concentrated in hot spots in the sediments of the Upper Hudson, but PCBs have polluted the entire stretch of the River below Hudson Falls as well. In 1983, as a result of GE's pollution, EPA classified a 200-mile stretch of the Hudson River from Hudson Falls to the Battery in New York City as a CERCLA Superfund site.
Attorneys Sarah Chasis and Katherine Kennedy prepared the legal brief of environmental amici with Lisa Heinzerling of the Georgetown University Law Center. General Electric has retained constitutional lawyer Lawrence Tribe.