Judges Toss Due Process Claim Against EPA

(CN) - The Goodrich Corporation can't pursue a claim that the Environmental Protection Agency institutes a "pattern and practice" of issuing illegitimate emergency cleanup orders under the Superfund law, the 9th Circuit ruled.

Goodrich sought to use the administrative review process of the Comprehensive Environmental Response, Compensation, and Liability Act to challenge the EPA's issuance of unilateral administrative orders, which force companies to clean up contaminated sites.

The company was ultimately disputing a 2003 order that demanded cleanup of the 160-acre Rialto Superfund site, which Goodrich ran from 1957 to 1962.

An amended complaint alleged that the EPA "routinely" issues such orders without an emergency, also obstructing judicial review of the orders and manipulating the decisions that come out of them.

U.S. District Judge Philip Gutierrez in Los Angeles ruled that the district court lacked jurisdiction over the "pattern and practice" claim under the Superfund law, which strictly limits judicial review procedures.

The Pasadena-based appellate panel affirmed the federal court's lack of jurisdiction.

Use of "the phrase 'pattern and practice' is not an automatic shortcut to federal court jurisdiction," Judge Graber wrote for the three-judge panel.

The opinion distilled from case law two guiding principles for legitimate use of judicial review: It may be used if no other meaningful opportunities are available, and only when a claim is ripe.

Applying these guidelines, the 9th Circuit found that under the Superfund law, Goodrich would have ample opportunity to challenge the order after it completes the Rialto site cleanup. Goodrich's claim also lacks ripeness, the court ruled, because it hasn't experienced any harm yet. And, because Goodrich could only claim harm resulting from the specific order directed toward it, the company lacks standing to assert a "pattern and practice" of violating due process, the court concluded.

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