graphic image depicting green amicus briefs for Atlantic Legal Foundation Amicus Brief Summary

Administrative Deprivation: How Expensive is Due Process?

In this case, appellant challenges the constitutionality of a statutory scheme that authorizes the Environmental Protection Agency to issue orders, known as unilateral administrative orders (UAOs), directing companies and others to clean up hazardous waste for which they are (according to a member of the executive branch and therefore merely allegedly) responsible. Appellant argues that the statute, as well as the way in which EPA administers it, violates the Due Process Clause because EPA issues UAOs without a hearing before a neutral decision-maker.

EPA issues Unilateral Administrative Orders which may be a death sentence for a PRP subject to it. A PRP may either attempt to comply, which itself is a costly (on average costing 4 million dollars) and lengthy three year process, or be fined $32,500 a day for non compliance which could add up to “something less than 72 million dollars,” which does not take into consideration the harm to a company’s long term business prospects as it attempts to secure investments, business contracts, and credit. The trial court found that these pre-hearing deprivations which accompany executive fiat were permissible under the Due Process clause. 

Issue Areas:

Individual Liberty, Property Rights

Question(s) Presented:

Whether EPA may deprive potentially responsible parties (PRP’s) of property interests without access to a neutral hearing before hand?

ALF’s Amicus Brief:

ALF argues that the trial court’s reasoning placed executive expediency ahead of the PRP’s constitutionally protected rights.  The court below concluded that hearings before a neutral decision-maker would “impose burdens on EPA,” that were too great to protect the tremendous “private interests at stake.” The evidence for this conclusion was based on an erroneous aggregation of the total costs of such hearings, despite having no data to support such an aggregation. The district court asserted that these conjectural costs were not justified by the EPA’s “rate of error,” which it placed the burden of proving on the defendant. This approach ignores the separation of powers principle that protects United States citizens from corruption, malfeasance, and rule by arbitrary decree. Allowing an administrator to rule by decree and to require a defendant to expend millions of dollars in order to even access a neutral court of justice is antithetical to Due Process. The Supreme Court has previously required that waiving pre-deprivation hearings is only permissible in emergencies, and unsurprisingly the executive branch is attempting to waive the emergency requirement in favor of expediency. No one should ever be a judge in their own case, least of all a regulator that is structurally empowered to abuse its authority.  


On Jun 29, 2010, the DC Circuit issued an adverse opinion.

Petition for certiorari denied on June 6, 2011.

Date Originally Posted: September 22, 2009

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