CERCLA authorizes EPA to undertake removal and remedial actions and to issue unilateral administrative orders under § 106(a) directing potentially responsible parties to clean up hazardous sites. A party that fails to comply with such an order may face daily fines and punitive damages, while a complying party may later seek reimbursement. GE filed suit challenging the constitutionality of CERCLA's administrative orders regime, specifically §§ 106, 107(c)(3), and 113(h), alleging that the lack of pre-enforcement review combined with severe penalties created an unconstitutional choice. GE did not challenge any particular EPA cleanup action or any specific § 106(a) order in this suit.
Issue
Does CERCLA § 113(h), which bars federal courts from reviewing challenges to removal or remedial actions selected under § 104 or orders issued under § 106(a) before enforcement, also bar a pre-enforcement facial constitutional challenge to the CERCLA statute itself?
Rule
Under the plain text of CERCLA § 113(h), federal courts lack jurisdiction only over challenges to removal or remedial actions selected under § 104 and review of orders issued under § 106(a). A facial constitutional challenge to the CERCLA statute itself, as distinct from a challenge to EPA's administration of the statute in a particular action or order, is not barred by § 113(h).
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Redstone Plating, a manufacturer in Cleveland, receives several letters from a federal environmental agency warning that it may be a potentially responsible party at contaminated properties around Ohio. Before any enforcement suit is filed, Redstone sues in federal court seeking a declaration that the statute's unilateral cleanup-order scheme is facially unconstitutional because it combines no pre-enforcement hearing with severe penalties for noncompliance. The complaint does not ask the court to invalidate any identified cleanup decision or any particular administrative order.
Is the suit barred for lack of subject matter jurisdiction under the statute's timing-of-review provision?
Explanation. The majority held that the jurisdictional bar applies only to the categories named in the text: challenges to removal or remedial action selected under § 104 and review of orders issued under § 106(a). A facial due process attack on the statutory regime itself falls outside that text when it does not challenge any particular agency action or order. The court rejected the broader view that all pre-enforcement suits connected to CERCLA are barred.