General Electric Co. v. Jackson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 18, 2010 Decided June 29, 2010

No. 09-5092

GENERAL ELECTRIC COMPANY,
APPELLANT

v.

LISA PEREZ JACKSON, ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY AND ENVIRONMENTAL
PROTECTION AGENCY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cv-02855-JDB)

Carter G. Phillips argued the cause for appellant. With
him on the briefs were Donald W. Fowler and Eric G. Lasker.
Thomas G. Echikson entered an appearance.

Martin S. Kaufman and Quentin Riegel were on the brief
for amicus curiae National Association of Manufacturers in
support of appellant.

Robin S. Conrad, Amar D. Sarwal, Paul D. Clement,
Daryl L. Joseffer, and Charles Fried were on the brief for
 2
amicus curiae Chamber of Commerce of the United States of
America in support of appellant.

Sambhav N. Sankar, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
was John C. Cruden, Deputy Assistant Attorney General.

Christopher J. Wright was on the brief for amici curiae
Natural Resources Defense Council, et al. in support of
appellees.

Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.

Opinion for the court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: 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
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 decisionmaker. We disagree. To the extent the UAO
regime implicates constitutionally protected property interests
by imposing compliance costs and threatening fines and
punitive damages, it satisfies due process because UAO
recipients may obtain a pre-deprivation hearing by refusing to
comply and forcing EPA to sue in federal court. Appellant
insists that the UAO scheme and EPA‘s implementation of it
nonetheless violate due process because the mere issuance of
a UAO can inflict immediate, serious, and irreparable damage
by depressing the recipient‘s stock price, harming its brand
value, and increasing its cost of financing. But such
―consequential‖ injuries—injuries resulting not from EPA‘s
 3
issuance of the UAO, but from market reactions to it—are
insufficient to merit Due Process Clause protection. We
therefore affirm the district court‘s grant of summary
judgment to EPA.

I.
Congress enacted the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA) ―in
response to the serious environmental and health risks posed
by industrial pollution.‖ United States v. Bestfoods, 524 U.S.
51, 55 (1998). CERCLA seeks to promote prompt cleanup of
hazardous waste sites and to ensure that responsible parties
foot the bill. See, e.g., Gen. Elec. Co. v Whitman (GE I), 257
F. Supp. 2d 8, 12 (D.D.C. 2003). Although CERCLA speaks
in terms of the President, the President has delegated his UAO
authority to EPA, so throughout this opinion we shall refer
only to EPA. See Exec. Order No. 12,580, 52 Fed. Reg. 2923
(Jan. 23, 1987).

Under CERCLA, EPA may itself conduct, or may order
responsible parties to conduct, two types of ―response
actions‖: removal actions are short-term remedies ―designed
to cleanup, monitor, assess, and evaluate the release or
threatened release of hazardous substances,‖ while remedial
actions are ―longer-term, more permanent remedies to
‗minimize the release of hazardous substances so that they do
not migrate to cause substantial danger to present or future
public health or welfare or the environment.‘‖ Gen. Elec. Co.
v. EPA (GE II), 360 F.3d 188, 189 (D.C. Cir. 2004) (per
curiam) (quoting 42 U.S.C. § 9601); see also 42 U.S.C.
§ 9604 (providing authority for removal and remedial
actions). CERCLA imposes strict liability on several classes
of responsible parties, including current and former facility
owners and operators, as well as parties that ―arrange[] for‖
 4
the transport, treatment, or disposal of hazardous substances.
42 U.S.C. § 9607.

When EPA determines that an environmental cleanup is
necessary at a contaminated site, CERCLA gives the agency
four options: (1) it may negotiate a settlement with potentially
responsible parties (PRPs), id. § 9622; (2) it may conduct the
cleanup with ―Superfund‖ money and then seek
reimbursement from PRPs by filing suit, id. §§ 9604(a),
9607(a)(4)(A); (3) it may file an abatement action in federal
district court to compel PRPs to conduct the cleanup, id.
§ 9606; or (4) it may issue a UAO instructing PRPs to clean
the site, id. This last option, authorized by CERCLA section
106, is the focus of this case.

To use its UAO authority, EPA must first determine ―that
there may be an imminent and substantial endangerment to
the public health or welfare or the environment because of an
actual or threatened release of a hazardous substance from a
facility.‖ Id. If EPA makes such a determination, it must
then compile an administrative record and select a response
action. Id. § 9613(k)(1). For remedial actions, the longer-
term option, CERCLA requires EPA to ―provide for the
participation of interested persons, including [PRPs], in the
development of the administrative record.‖ Id.
§ 9613(k)(2)(B). Specifically, EPA must provide ―[n]otice to
potentially affected persons and the public,‖ ―[a] reasonable
opportunity to comment and provide information regarding
the [remedial] plan,‖ ―[a]n opportunity for a public meeting in
the affected area,‖ ―[a] response to each of the significant
comments, criticisms, and new data submitted in written or
oral presentations,‖ and ―[a] statement of the basis and
purpose of the selected action.‖ Id.; see also § 9617(a)–(b)
(requiring public notice of all remedial actions). EPA
regulations also require public notice and comment for the
 5
shorter-term removal actions. See 40 C.F.R. §§ 300.415(n)
(requiring community notice of removal actions), 300.810–
300.820 (describing contents of administrative record and
mandating public comment period for remedial and removal
actions).

Once EPA issues a UAO, the recipient PRP has two
choices. It may comply and, after completing the cleanup,
seek reimbursement from EPA. 42 U.S.C. § 9606(b)(2)(A).
If EPA refuses reimbursement, the PRP may sue the agency
in federal district court to recover its costs on the grounds that
(1) it was not liable for the cleanup, id. § 9606(b)(2)(B)–(C);
or (2) it was liable but EPA‘s selected response action (or
some portion thereof) was ―arbitrary and capricious or . . .
otherwise not in accordance with law,‖ id. § 9606(b)(2)(D).
Alternatively, the PRP may refuse to comply with the UAO,
in which case EPA may either bring an action in federal
district court to enforce the UAO against the noncomplying
PRP, id. § 9606(b)(1), or clean the site itself and then sue the
PRP to recover its costs, id. § 9607(c)(3). In either
proceeding, if the court concludes that the PRP ―willfully‖
failed to comply with an order ―without sufficient cause,‖ it
―may‖ (but need not) impose fines, id. § 9606(b)(1), which
are currently set at $37,500 per day, see 73 Fed. Reg. 75,340,
75,340–46 (Dec. 11, 2008), and accumulate until EPA brings
a recovery or enforcement action—a period of up to six years,
see 28 U.S.C. § 2462 (statute of limitations for enforcement
action is five years from the date a PRP violates a UAO); 42
U.S.C. § 9613(g)(2) (statute of limitations for recovery of
costs is three years for a removal action and six years for a
remedial action). If EPA itself undertakes the cleanup and the
district court finds that the PRP ―fail[ed] without sufficient
cause‖ to comply with the UAO, the court ―may‖ impose
punitive damages of up to ―three times[] the amount of any
costs‖ the agency incurs. 42 U.S.C. § 9607(c)(3).
 6
Central to this case, these two options—comply and seek
reimbursement, or refuse to comply and wait for EPA to bring
an enforcement or cost recovery action—are exclusive.
CERCLA section 113(h) bars PRPs from obtaining immediate
judicial review of a UAO. Id. § 9613(h). See generally
Reardon v. United States, 947 F.2d 1509, 1512 (1st Cir. 1991)
(en banc). That section provides that ―No Federal court shall
have jurisdiction . . . to review any order issued under section
[106]‖ until the PRP completes the work and seeks
reimbursement, id. § 9613(h)(3), or until EPA brings an
enforcement action or seeks to recover fines and damages for
noncompliance, id. § 9613(h)(1)–(2).

Over the years, appellant General Electric (GE) has
received at least 68 UAOs. See Gen. Elec. Co. v. Jackson
(GE IV), 595 F. Supp. 2d 8, 17 (D.D.C. 2009). In addition,
GE ―is currently participating in response actions at 79 active
CERCLA sites‖ where UAOs may issue, Reply Br. 22,
including the cleanup of some 200 miles of the Hudson River
stretching from Hudson Falls to the southern tip of
Manhattan. According to EPA and its amicus, from 1947 to
1977, two GE manufacturing plants near Hudson Falls
contributed to the river‘s pollution by discharging
polychlorinated biphenyls, considered a probable human
carcinogen. Nat‘l Res. Def. Council et al. Amicus Br. 2
(―NRDC Amicus Br.‖); see also United States v. Gen. Elec.
Co., 460 F. Supp. 2d 395, 396 (N.D.N.Y. 2006). Although
EPA has yet to issue GE a UAO for the Hudson River, the
agency has reserved the right to do so, see NRDC Amicus Br.
7, and the company suspects it will receive UAOs at other
sites as well.

In 2000, GE filed suit in the United States District Court
for the District of Columbia challenging CERCLA‘s UAO
regime. In its amended complaint, GE alleged that the statute
 7
violates the Fifth Amendment to the United States
Constitution because it ―deprive[s] persons of their
fundamental right to liberty and property without . . .
constitutionally adequate procedural safeguards.‖ Am.
Compl. ¶ 2. According to GE, ―[t]he unilateral orders regime
. . . imposes a classic and unconstitutional Hobson‘s choice‖:
because refusing to comply ―risk[s] severe punishment [i.e.,
fines and treble damages],‖ UAO recipients‘ only real option
is to ―comply . . . before having any opportunity to be heard
on the legality and rationality of the underlying order.‖ Id.
¶ 4. GE also alleged that it ―has been and is aggrieved by
CERCLA‘s fundamental constitutional deficiencies‖ because
it has repeatedly received UAOs and is likely to receive them
in the future. Id. ¶ 7; see also id. ¶¶ 31–47. GE sought ―[a]
declaratory judgment that the provisions of CERCLA relating
to unilateral administrative orders . . . are unconstitutional.‖
Id. Prayer for Relief ¶ 1.

The district court dismissed GE‘s amended complaint for
lack of jurisdiction. According to the district court, section
113(h) prohibits ―broad, pre-enforcement due process
challenge[s] to the statute . . . until EPA seeks enforcement or
remediation is complete‖ on a particular UAO. GE I, 257 F.
Supp. 2d at 31. We reversed, ruling that section 113(h)
presented no bar to GE‘s lawsuit because the company ―does
not challenge any particular action or order by EPA.‖ GE II,
360 F.3d at 191.

On remand, the district court issued two decisions that
GE now appeals. In the first, issued in 2005, the district court
granted EPA‘s motion for summary judgment on GE‘s facial
due process challenge. Gen. Elec. Co. v. Johnson (GE III),
362 F. Supp. 2d 327 (D.D.C. 2005). The district court held
that the statute provides constitutionally sufficient process
because by refusing to comply with a UAO, a PRP can force
 8
EPA to bring a court action in which the PRP can challenge
the order. The court also rejected GE‘s claim that CERCLA‘s
fines and treble damages are so severe that, as a practical
matter, they foreclose judicial review. In the alternative, the
district court applied the ―Salerno doctrine,‖ which prohibits
facial invalidation of a statute unless the statute ―is
unconstitutional in every application.‖ Id. at 343; see United
States v. Salerno, 481 U.S. 739, 745 (1987). According to the
court, even if CERCLA‘s fines and damages make pre-
compliance review unavailable as a practical matter, the
statute can still be applied constitutionally in emergency
situations. Finally, the district court concluded that it had
jurisdiction to address what it called GE‘s ―pattern and
practice‖ challenge to EPA‘s administration of CERCLA‘s
UAO provisions, i.e., GE‘s argument that EPA‘s policies and
procedures for issuing UAOs exacerbate CERCLA‘s
constitutional deficiencies, and it allowed discovery on that
claim to proceed. GE III, 362 F. Supp. 2d at 333–37.

Following discovery, the district court granted EPA‘s
motion for summary judgment on the pattern and practice
challenge as well. The court began by finding that certain
―consequential injuries‖ that PRPs allegedly suffer as a result
of UAOs—including decline in stock price, loss of brand
value, and increased cost of financing—qualify as property
interests entitled to due process protection. GE IV, 595 F.
Supp. 2d at 20–21. What‘s more, the court found that GE had
shown that harm to these interests was ―significant,‖ because
noncomplying PRPs suffer millions of dollars in damages to
brand and market value. Id. at 30. The district court
nonetheless concluded that the significance of these interests,
when balanced against the government‘s interest and the risk
of error in UAO procedures, was insufficient to render EPA‘s
practices unconstitutional. Id. at 32–39; see Matthews v.
Eldridge, 424 U.S. 319 (1976).
 9
GE appeals both decisions. We review the district
court‘s entry of summary judgment de novo. See, e.g.,
Capitol Hill Group v. Pillsbury, Winthrop, Shaw, Pittman,
LLC, 569 F.3d 485, 489 (D.C. Cir. 2009).

II.
We begin with GE‘s facial challenge. ―A facial
challenge to a legislative Act is, of course, the most difficult
challenge to mount successfully.‖ Salerno, 481 U.S. at 745.
Although the precise standard for facial challenges remains ―a
matter of dispute,‖ United States v. Stevens, 130 S. Ct. 1577,
1587 (2010), to prevail GE must establish either ―‗that no set
of circumstances exists under which [CERCLA‘s UAO
provisions] would be valid,‘ or that [those provisions] lack[]
any ‗plainly legitimate sweep,‘‖ id. (quoting Salerno, 481
U.S. at 745, and Washington v. Glucksberg, 521 U.S. 702,
740 n. 7 (1997) (Stevens, J., concurring in the judgments)
(citation omitted)); see Troxel v. Granville, 530 U.S. 57, 85
(2000) (Stevens, J., dissenting) (explaining that facial
invalidation is inappropriate under the ―plainly legitimate
sweep‖ standard where the statute‘s application would be
constitutional ―in many circumstances‖).

The Fifth Amendment to the United States Constitution
provides that ―No person shall . . . be deprived of life, liberty,
or property, without due process of law.‖ U.S. Const. amend.
V. ―The first inquiry in every due process challenge is
whether the plaintiff has been deprived of a protected interest
in ‗liberty‘ or ‗property.‘ Only after finding the deprivation
of a protected interest do we look to see if the [government‘s]
procedures comport with due process.‖ Amer. Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 59 (1999) (citations omitted). At
this second step, we apply the now-familiar Matthews v.
Eldridge balancing test, considering (1) the significance of the
private party‘s protected interest, (2) the government‘s
 10
interest, and (3) the risk of erroneous deprivation and ―the
probable value, if any, of additional or substitute procedural
safeguards.‖ 424 U.S. at 335.

GE asserts that UAOs deprive PRPs of two types of
protected property: (1) the money PRPs must spend to comply
with a UAO or the daily fines and treble damages they face
should they refuse to comply; and (2) the PRPs‘ stock price,
brand value, and cost of financing, all of which, GE contends,
are adversely affected by the issuance of a UAO. We address
each of these alleged deprivations in turn.

Costs of Compliance, Fines, and Damages
The parties agree that the costs of compliance and the
monetary fines and damages associated with noncompliance
qualify as protected property interests. They disagree,
however, as to whether judicial review is available before any
deprivation occurs. EPA contends that CERCLA gives PRPs
the right to pre-deprivation judicial review: by refusing to
comply with a UAO, a PRP can force EPA to file suit in
federal court, where the PRP can challenge the order‘s
validity before spending a single dollar on compliance costs,
damages, or fines. GE responds that noncompliance—and
thus pre-deprivation judicial review—is but a theoretical
option. According to GE, daily fines and treble damages ―are
so severe that they . . . intimidate[] PRPs from exercising the
purported option of electing not to comply with a UAO so as
to test an order‘s validity‖ via judicial review. Appellant‘s
Br. 49. PRPs are thus forced to comply and spend substantial
sums prior to any hearing before a neutral decisionmaker.
Because ―the government is never relieved of its duty to
provide some notice and some opportunity to be heard prior to
a final deprivation of a property interest,‖ GE argues,
CERCLA‘s failure to provide any realistic avenue for pre-
deprivation review is fatal to the Act‘s constitutionality.
 11
Appellant‘s Br. 24 (quoting Propert v. District of Columbia,
948 F.2d 1327, 1332 (D.C. Cir. 1991)) (internal quotation
marks omitted).

GE‘s argument hinges on the Supreme Court‘s decision
in Ex Parte Young, 209 U.S. 123 (1908), and its progeny.
Under those cases, a statutory scheme violates due process if
―the penalties for disobedience are by fines so enormous . . .
as to intimidate the [affected party] from resorting to the
courts to test the validity of the legislation [because] the result
is the same as if the law in terms prohibited the [party] from
seeking judicial [review]‖ at all. Id. at 147. The Supreme
Court has made clear, however, that statutes imposing fines—
even ―enormous‖ fines—on noncomplying parties may satisfy
due process if such fines are subject to a ―good faith‖ or
―reasonable ground[s]‖ defense. See Reisman v. Caplin, 375
U.S. 440, 446–50 (1964); Okla. Operating Co. v. Love, 252
U.S. 331, 338 (1920). Courts have also held that ―there is no
constitutional violation if the imposition of penalties is subject
to judicial discretion.‖ Wagner Seed Co. v. Daggett, 800 F.2d
310, 316 (2d Cir. 1986); cf. Brown & Williamson Tobacco
Corp. v. Engman, 527 F.2d 1115, 1121 & n.8 (2d Cir. 1975).

CERCLA guarantees these safeguards. Indeed, the
statute offers noncomplying PRPs several levels of protection:
a PRP faces daily fines and treble damages only if a federal
court finds (1) that the UAO was proper; (2) that the PRP
―willfully‖ failed to comply ―without sufficient cause‖; and
(3) that, in the court‘s discretion, fines and treble damages are
appropriate. 42 U.S.C. §§ 9606(b)(1), 9607(c)(3). As to the
first of these findings—the propriety of the UAO—the district
court reviews EPA‘s determination de novo: although the
PRP must prove that it is not liable by a preponderance of the
evidence, EPA‘s liability determination warrants no judicial
deference. See Kelley v. EPA, 15 F.3d 1100, 1107–08 (D.C.
 12
Cir. 1994) (―Congress . . . designated the courts and not EPA
as the adjudicator of the scope of CERCLA liability.‖). As to
the second, CERCLA‘s ―willfulness‖ and ―sufficient cause‖
requirements are quite similar to the good faith and
reasonable grounds defenses the Supreme Court has found
sufficient to satisfy due process, and GE does not argue
otherwise. See Resiman, 375 U.S. at 446–50 (penalty for
challenging a summons did not violate due process where
fines were unavailable for a good-faith challenge); Okla.
Operating Co., 252 U.S. at 337 (permanent injunction against
enforcement of daily fines for noncompliance with allegedly
confiscatory rates would be appropriate if ―plaintiff had
reasonable ground to contest‖ them); see also Solid State
Circuits, Inc. v. EPA, 812 F.2d 383, 391–92 (8th Cir. 1987)
(finding that CERCLA‘s ―sufficient cause‖ defense is
constitutionally equivalent to a good faith defense and thus
satisfies due process). Moreover, PRPs receive added
protection from the fact that the district court has authority to
decide not to impose fines even if it concludes that a recipient
―without sufficient cause, willfully violate[d], or fail[ed] or
refuse[d] to comply with‖ a UAO. 42 U.S.C. § 9606(b)(1);
see also id. § 9607(c)(3) (district court ―may‖ impose treble
damages if a person ―who is liable . . . fails without sufficient
cause‖ to comply with a UAO). Given these safeguards, we
have no basis for concluding that ―[t]he necessary effect and
result of [CERCLA] must be to preclude a resort to the courts
. . . for the purpose of testing [a UAO‘s] validity.‖ Young,
209 U.S. at 146. Contrary to GE‘s claim, then, PRPs face no
Hobson‘s choice. We therefore join three of our sister circuits
that have rejected similar Ex Parte Young challenges to
CERCLA‘s UAO regime. Employers Ins. of Wausau v.
Browner, 52 F.3d 656, 664 (7th Cir. 1995); Solid State
Circuits, 812 F.2d at 391–92; Wagner Seed Co., 800 F.2d at
316; see also City of Rialto v. West Coast Loading Corp., 581
F.3d 865, 872 (9th Cir. 2009) (expressing approval of this
 13
holding); cf. S. Pines Assocs. v. United States, 912 F.2d 713,
717 (4th Cir. 1990) (rejecting due process challenge to Clean
Water Act compliance orders because recipients are ―not
subject to . . . penalties until EPA pursues an enforcement
proceeding.‖).

Given the foregoing, we need not address EPA‘s
argument that the statute is, at a minimum, constitutional in
emergency situations. Nor for the same reason need we
consider GE‘s response that EPA does not actually issue
UAOs in emergencies.

Stock Price, Brand Value, and Cost of Financing
GE contends that, in addition to potential cleanup costs,
fines, and damages, issuance of a UAO ―immediately tag[s]‖
a PRP ―with a massive contingent liability,‖ Appellant‘s Br.
14, which in turn depresses its stock price, harms its brand
value, and increases its cost of financing. According to GE,
these adverse impacts are ―irreparable and cannot be remedied
through a later, delayed challenge to [a] UAO.‖ Id. at 34.
Perhaps so, but we must first address an antecedent question:
does the Due Process Clause protect PRPs‘ interest in the
market‘s assessment of their stock, brand, and credit
worthiness? See supra at 9–10.

As the Supreme Court has repeatedly stated, ―the range
of interests protected by procedural due process is not
infinite.‖ E.g., Bd. of Regents of State Colls. v. Roth, 408 U.S.
564, 570 (1972). Moreover, ―[p]roperty interests . . . are not
created by the Constitution. Rather they are created and their
dimensions are defined by existing rules or understandings
that stem from an independent source such as state law—rules
or understandings that secure certain benefits and that support
claims of entitlement to those benefits.‖ Id. at 577; see also
Paul v. Davis, 424 U.S. 693, 710 (1976). For due process
 14
purposes, then, it is not enough that one has ―an abstract need
or desire‖ for the asserted property; to merit due process
protection, ―[h]e must . . . have a legitimate claim for
entitlement to it.‖ Roth, 408 U.S. at 577.

GE points to no ―independent source such as state law,‖
id., for its purported property interests. Nor does it deny, as
EPA points out, that the company‘s claimed injuries are
consequential, i.e., that they result not from EPA‘s
―extinguish[ing] or modify[ing] a right recognized by state
law,‖ but rather from independent market reactions to the
issuance of a UAO. Appellees‘ Br. 26. GE argues only that
the Supreme Court and this court have ―repeatedly held that
consequential impacts can constitute a deprivation.‖ Reply
Br. 6.

In support, GE relies primarily on Connecticut v. Doehr,
501 U.S. 1 (1991), in which the Supreme Court held that a
state statute authorizing ex parte prejudgment attachment of
real estate violated due process. GE emphasizes the Court‘s
statement that

[T]he property interests that attachment affects are
significant. . . . [A]ttachment ordinarily clouds title;
impairs the ability to sell or otherwise alienate the
property; taints any credit rating; reduces the chance
of obtaining a home equity loan or additional
mortgage; and can even place an existing mortgage
in technical default where there is an insecurity
clause.

Id. at 11. According to GE, because ―[e]very one of the
deprivations identified by the Court . . . entailed nothing but
consequential market reactions to the attachment,‖ Reply Br.
6, Doehr stands for the proposition that consequential injuries
 15
merit due process protection. GE also relies on the Court‘s
statement that although the effects of attachment ―do not
amount to a complete, physical, or permanent deprivation of
real property[,] . . . the Court has never held that only such
extreme deprivations trigger due process concern.‖ 501 U.S.
at 12. Indeed, the Court continued, ―even the temporary or
partial impairments to property rights that attachments, liens,
and similar encumbrances entail are sufficient to merit due
process protection.‖ Id. This language, GE argues,
demonstrates that PRPs are entitled to procedures that satisfy
due process before EPA can issue a UAO that results in
―temporary or partial impairments‖ to stock price, brand
value, or cost of financing.

We disagree with GE‘s reading of Doehr‘s discussion of
consequential injuries. The quoted text comes not from the
Court‘s analysis of whether attachment requires due process
protection, but instead from the portion of its opinion
weighing the significance of the private interests at stake—the
first of the three factors Matthews instructs courts to consider
when determining what process is due in situations where a
constitutional deprivation has in fact occurred. See id. at 11.
The Court addressed this latter question only after finding that
real property attachments qualify as deprivations within the
meaning of the Due Process Clause. Id. at 9 (―With this case
we return to the question of what process must be afforded by
a state statute enabling an individual to enlist the aid of the
State to deprive another of his or her property by means of
prejudgment attachment or similar procedure.‖). Although
the Court devoted few words to this threshold inquiry, it is
well accepted that attachments themselves constitute property
deprivations because, as EPA points out, they ―pluck a stick
from the property owner‘s bundle and hold it as surety.‖
Appellees‘ Br. 32; see Lugar v. Edmonson Oil Co., 457 U.S.
922, 932–33 (1982) (noting that ―the Court has consistently
 16
held that constitutional requirements of due process apply to
garnishment and prejudgment attachment procedures‖). Thus,
although Doehr does hold that direct, partial impairments of
property rights may well warrant due process safeguards,
nothing in the opinion implies that consequential injuries,
standing alone, merit due process protection. See Doehr, 501
U.S. at 29 (Rehnquist, C.J., concurring in part and concurring
in the judgment) (noting that the filing of a lis pendens may
reduce the market value of property without triggering due
process because it ―creates no additional right in the
property‖); United States v. Register, 182 F.3d 820, 836–37
(11th Cir. 1999) (same). Rather, Doehr stands for the
proposition that consequential injuries can affect the
significance of the private interests at stake and thus the
nature of the procedures required.

Stripped of its reliance on Doehr, GE‘s case boils down
to this: by declaring that a PRP is responsible for cleaning up
a hazardous waste site, a UAO harms the PRP‘s reputation,
and the market, in turn, devalues its stock, brand, and credit
rating. Viewed this way, GE‘s argument is foreclosed by
Paul v. Davis, 424 U.S. 693. There the Supreme Court held
that a sheriff‘s inclusion of Davis‘s name and photograph on a
flyer captioned ―Active Shoplifters‖ implicated no due
process interest. Although the poster alerted the public to a
potentially damaging allegation about Davis and may have
seriously limited his future employment opportunities, id. at
697, the Court found that it extinguished none of Davis‘s
previously held legal rights—state ―law [did] not extend to
[him] any legal guarantee of present enjoyment of
reputation,‖ id. at 711–12. In so holding, the Court
distinguished Wisconsin v. Constantineau, 400 U.S. 433
(1971), which ruled that a law allowing for ―posting‖—
forbidding the sale of alcoholic beverages to persons
determined to have become hazards based on their ―excessive
 17
drinking‖—violated due process. As the Court explained in
Davis, the law at issue in Constantineau went beyond mere
stigma, depriving the plaintiff ―of a right previously held
under state law . . . to purchase or obtain liquor in common
with the rest of the citizenry.‖ Davis, 424 U.S. at 708. ―[I]t
was that alteration of legal status which, combined with the
injury resulting from the defamation, justified the invocation
of procedural safeguards‖ in Constantineau. Id. at 708–09.
Davis‘s rule is thus clear: stigma alone is insufficient to
invoke due process protections. See id. at 704–06; see also
Siegert v. Gilley, 500 U.S. 226, 234 (1991) (―[S]o long as . . .
damage flows from injury caused by the defendant to a
plaintiff‘s reputation,‖ no constitutional claim is alleged).

Our cases elaborating on Davis‘s so-called stigma-plus
rule find it satisfied only where plaintiffs show, in addition to
reputational harm, that (1) the government has deprived them
of some benefit to which they have a legal right, e.g., the
―right to be considered for government contracts in common
with all other persons,‖ Doe v. United States Dep’t of Justice,
753 F.2d 1092, 1108–09 (D.C. Cir. 1985) (quoting Mosrie v.
Barry, 718 F.2d 1151, 1161 (D.C. Cir. 1983)) (internal
quotation marks omitted); or (2) the government-imposed
stigma is so severe that it ―broadly precludes‖ plaintiffs from
pursuing ―a chosen trade or business,‖ Trifax Corp. v. District
of Columbia, 314 F.3d 641, 644 (D.C. Cir. 2003). Here,
although a UAO may well damage the PRP‘s reputation, GE
alleges neither of these additional injuries. This case is thus
controlled by Davis, not Constantineau.

Our conclusion is unaffected by the fact that GE alleges
―property‖ harm while Davis addresses a ―liberty‖ claim.
Like other circuits, we have applied the stigma-plus
framework to property claims, requiring plaintiffs to show
that alleged reputational harm completely destroys the value
 18
of their property. For example, in Industrial Safety
Equipment Ass’n v. EPA, 837 F.2d 1115, 1121-22 (D.C. Cir.
1988), we concluded that EPA‘s issuance of a report warning
against the use of certain asbestos-protection respirators, but
not prohibiting them, did not deprive manufacturers of their
property interest in the respirators‘ EPA certifications.
Although the report would surely make the respirators less
popular and therefore less profitable, and although there was
―no question that [the manufacturers] possess[ed] cognizable
property interests in their respirator certifications,‖ ―[t]his
indirect effect . . . [could] hardly be said to constitute a
constitutional deprivation of property deserving fifth
amendment protection‖ because it ―in no way . . . rendered
valueless‖ plaintiffs‘ certifications. Id. at 1122; see also
WMX Techs., Inc. v. Miller, 197 F.3d 367, 373–76 (9th Cir.
1999) (en banc) (damage to business goodwill did not
implicate the Due Process Clause because the asserted injury
affected only reputation); Wells Fargo Armored Serv. Corp. v.
Ga. Pub. Serv. Comm’n, 547 F.2d 938, 941 (5th Cir. 1977)
(indirect injuries to property right in state motor carrier
license implicate the Due Process Clause only where they
―effectively render the property valueless‖).

The Second Circuit‘s application of Davis to a statutory
scheme quite similar to CERCLA provides additional support
for our conclusion. In Asbestec Construction Services v. EPA,
849 F.2d 765, 767, 769 (2d Cir. 1988), the court considered a
due process challenge to a Clean Air Act ―compliance order‖
that, like a UAO, found that the recipient had violated federal
law, ordered specified compliance actions, and threatened ―an
EPA court action for relief‖ if the recipient failed to comply.
According to the recipient, the compliance order implicated
its property and liberty rights under the Fifth Amendment by
―inhibit[ing] its ability to obtain asbestos removal contracts.‖
Id. at 769. The Second Circuit rejected both arguments. As
 19
to the property claim, the court noted that the recipient had
pointed to no ―certain benefits,‖ such as government
contracts, from which the order excluded it. Id. at 770. As to
the recipient‘s liberty argument, the court concluded that
―[t]he possible adverse effect of the order on petitioner‘s
future business prospects is insufficient by itself to give rise to
a claim that one has been deprived of a liberty interest.‖ Id. at
769. Attempting to distinguish Asbestec, GE points out that
the compliance order at issue there required no remedial
action, but this difference is irrelevant because the property
interest alleged in Asbestec—a right to a positive business
reputation and the profits it yields—is, in essence, the same
interest GE alleges here.

GE nonetheless insists that this court has ―held that
consequential impacts can constitute a deprivation.‖ Reply
Br. 6. The cases GE cites, however, simply reiterate Davis‘s
stigma-plus principle. Thus, in Doe v. United States
Department of Justice, we found that a government
employee‘s liberty rights were implicated by a ―discharge[]
from government employment amidst stigmatizing allegations
which have effectively foreclosed future employment
opportunities with the government as well as private
employers.‖ 753 F.2d at 1110. Similarly, in Reeve Aleutian
Airways, Inc. v. United States, we held that the government‘s
suspension of an airline from a military airlift transportation
program ―based on stigmatizing charges‖ that the airline was
unsafe did affect its liberty interest. 982 F.2d 594, 598 (D.C.
Cir. 1993). Here, even assuming UAOs are stigmatizing,
their consequences fall far short of completely foreclosing
employment (Doe), or suspending a government contract
(Reeve Aleutian Airways).

Finally, seeking to distinguish UAOs from government
actions ―like filing a complaint or issuing a policy report,‖
 20
Reply Br. 8 (quoting Appellees‘ Br. 19) (internal quotation
marks omitted), GE insists that the issuance of a UAO
triggers due process protections because it follows a fact-
finding, adjudicatory proceeding. In support, the company
cites two cases, Jenkins v. McKeithen, 395 U.S. 411 (1969)
(plurality opinion), and Hannah v. Larche, 363 U.S. 420
(1960). GE, however, failed to make this argument or discuss
these cases until its reply brief, thus depriving EPA of an
opportunity to respond. ―To prevent this sort of
sandbagging . . . , we have generally held that issues not
raised until the reply brief are waived.‖ Bd. of Regents of
Univ. of Wash. v. EPA, 86 F.3d 1214, 1221 (D.C. Cir. 1996)
(citations omitted). We do so here as well.

That said, given the extent to which GE emphasized this
argument both in its reply brief and at oral argument, it is
worth pointing out that Hannah and Jenkins are not nearly as
broad as the company claims. In Hannah, the Supreme Court
upheld the Civil Rights Commission‘s rules of procedure,
finding that the Commission‘s refusal to identify those who
submitted complaints or to allow for cross-examination of
witnesses did not violate the Due Process Clause. The Court
relied on the fact that the Commission functioned as an
investigative entity:

It does not adjudicate. It does not hold trials or
determine anyone‘s civil or criminal liability. It does
not issue orders. Nor does it indict, punish, or
impose any legal sanctions. It does not make
determinations depriving anyone of his life, liberty,
or property. In short, the Commission does not and
cannot take any affirmative action which will affect
an individual‘s legal rights.
 21
Hannah, 363 U.S. at 441. Nine years later, in Jenkins, the
Supreme Court reached the opposite result with respect to the
constitutionality of a statute that created the Louisiana Labor-
Management Commission of Inquiry, a body whose
members—appointed by the Governor and empowered to act
only upon his referral—investigated possible criminal
violations in the field of labor-management relations. The
Commission was ―required to determine, in public findings,
whether there [was] probable cause to believe violations of
the criminal laws ha[d] occurred,‖ Jenkins, 395 U.S. at 416,
and the plaintiff ―alleged that [its] very purpose . . . [was] to
find persons guilty of violating criminal laws without trial or
procedural safeguards‖ such as the right to present evidence
or to confront witnesses, id. at 424. Although noting that ―the
structure and powers of the Commission [at issue in Jenkins]
[were] similar to those of the Civil Rights Commission‖
upheld in Hannah, id. at 425, the Jenkins plurality found that
the Louisiana body ―exercise[d] a function very much akin to
making an official adjudication of criminal culpability,‖ i.e.,
―find[ing] named individuals guilty of violating the criminal
laws . . . and . . . brand[ing] them as criminals in public,‖ id.
at 427–28. As a result, the Court concluded, ―the minimal
requirements‖ of due process applied. Id. at 428.

GE argues that Hannah and Jenkins, taken together,
establish that ―where government action moves from
investigatory to adjudicatory, the government must provide
pre-deprivation hearings.‖ Reply Br. 12. To be sure, some of
Jenkins‘s language, considered in isolation, might suggest
such a rule. But we think the better reading is that in Jenkins
the Court was addressing only adjudications of criminal
culpability. In distinguishing Hannah, the Court relied
heavily on the fact that the Louisiana Commission was
―concerned only with . . . find[ing] named individuals guilty
of violating the criminal laws . . . and . . . brand[ing] them as
 22
criminals in public.‖ Jenkins, 395 U.S. at 427–28. Indeed, in
a discussion consuming only a single page of the U.S.
Reports, the Court mentioned no fewer than six times that the
Commission was charged with accusing individuals of
criminal conduct. Id. The Court emphasized the same point
in Davis when distinguishing Jenkins. Although the Davis
majority and dissent disagreed as to whether Davis‘s holding
contradicted Jenkins, they found common ground in
characterizing Jenkins as a case involving adjudications of
criminal liability. The majority described the Louisiana
Commission as ―an agency whose sole or predominant
function, without serving any other public interest, is to
expose and publicize the names of persons it finds guilty of
wrongdoing.‖ Davis, 424 U.S. at 706 n.4 (quoting Jenkins,
395 U.S. at 438 (Harlan, J., dissenting)) (internal quotation
marks omitted). Similarly, the dissent summarized Jenkins as
holding that ―the official characterization of an individual as a
criminal affects a constitutional ‗liberty‘ interest.‖ 424 U.S.
at 727 (Brennan, J., dissenting). Moreover, in the forty years
since the Court decided Jenkins, it has never cited the case for
the broader proposition advocated by GE, i.e., that the Due
Process Clause is implicated whenever the government uses
an adjudicatory process to find facts with respect to a
particular individual or corporation. Cf. Donaldson v. United
States, 400 U.S. 517, 540 (1971) (Douglas, J., concurring)
(Jenkins ―held that the commission exercised an accusatory
function and was empowered to brand people as criminals.
Therefore, due process required‖ certain procedural
protections) (citation omitted). Given this, and given
Jenkins‘s repeated emphasis on criminal culpability, the
decision has no applicability to CERCLA‘s UAO procedures,
which are not only entirely civil, but fall far short of
transforming EPA into a body ―concerned only with‖ labeling
PRPs as polluters. Jenkins, 395 U.S. at 427.
 23
III.
GE contends that even if CERCLA‘s UAO provisions are
facially constitutional, EPA administers the statute in a way
that denies PRPs due process. Before addressing the merits of
this ―pattern and practice claim,‖ however, we must consider
EPA‘s argument that the district court lacked jurisdiction to
entertain it.

Jurisdiction
EPA‘s jurisdictional argument rests on CERCLA section
113(h), which provides that ―[n]o Federal court shall have
jurisdiction . . . to review . . . any [unilateral administrative]
order,‖ until either cleanup work is complete or EPA brings
an enforcement action. 42 U.S.C. § 9613(h). According to
EPA, ―GE‘s . . . ‗pattern and practice‘ claim[] necessarily
forced the district court to ‗review‘ individual UAOs in
violation of CERCLA section 113(h).‖ Appellees‘ Br. 40–41.
GE responds that because it seeks no relief as to any
particular UAO, its pattern and practice claim falls outside
section 113(h)‘s jurisdictional bar. What‘s more, GE argues,
this court already held in GE II that the district court had
jurisdiction over its pattern and practice claim.

We disagree with GE‘s reading of GE II. For one thing,
in GE II we repeatedly referred to the company‘s challenge as
a ―facial‖ attack. See GE II, 360 F.3d at 189, 190, 191, 192.
Indeed, we said only that ―[w]e hold that the plain text of
§ 113(h) does not bar GE‘s facial constitutional challenge to
CERCLA.‖ Id. at 189 (emphasis added). In its GE II briefs,
moreover, the company never even hinted that it meant to
bring a pattern and practice challenge to EPA‘s administration
of the statute. For example, in its opening brief GE
repeatedly characterized its claim as facial, emphasizing that
―nothing about the resolution of the merits of GE‘s
 24
constitutional claim would change in the slightest even if EPA
had never taken a single § 104 [removal or remedial] action or
issued a single § 106(a) [unilateral administrative] order
anywhere in the United States.‖ Brief of Appellant at 20, GE
II (No. 03–5118). It is true, as GE points out, that in GE II we
relied on McNary v. Haitian Refugee Center, Inc., 498 U.S.
479 (1991), in which the Supreme Court allowed a pattern
and practice due process challenge to the way in which the
Immigration and Naturalization Service was enforcing the
immigration laws. But we cited McNary only to support our
narrow reading of section 113(h)‘s text, i.e., that the provision
presents no bar to a facial challenge. See GE II, 360 F.3d at
192–93; see also City of Rialto, 581 F.3d at 880
(characterizing GE II as holding only that ―a facial challenge
was not barred‖).

Although we thus read GE II as holding only that the
district court had jurisdiction over GE‘s facial challenge, we
nonetheless agree with GE that the district court had
jurisdiction to entertain its pattern and practice claim as well.
Section 113(h) is quite clear: it only prohibits district courts
from reviewing UAOs before enforcement or reimbursement
proceedings have been initiated. Nothing in the provision
bars a pattern and practice challenge that seeks no relief with
respect to any particular UAO. To be sure, as EPA
emphasizes, the district court did calculate a UAO error rate.
But significantly for the section 113(h) issue before us, GE
sought no relief with respect to individual UAOs, nor did the
district court grant any.

This case is therefore controlled by McNary. There the
Supreme Court concluded that the plain language of the
immigration statute—which barred review ―of a
determination respecting an application‖ for special
agricultural worker (SAW) status, 8 U.S.C. § 1160(e)(1)—
 25
referred only to judicial review of ―a single act rather than . . .
a practice or procedure employed in making decisions,‖ 498
U.S. at 492. Thus, although the statute prohibited courts from
reviewing denials of individual applications for SAW status,
district courts could nonetheless consider ―general collateral
challenges to unconstitutional practices and policies used by
the agency in processing applications.‖ Id. The same
principle applies to CERCLA section 113(h).

EPA argues that McNary‘s outcome was dictated by a
consideration not present here. In McNary, the Supreme
Court pointed out that because the statute provided for review
of SAW determinations only in deportation proceedings and
only on a limited record, barring pattern and practice
challenges would result in ―a total denial of judicial review of
[plaintiffs‘] . . . constitutional and statutory claims.‖ 498 U.S.
at 497. According to EPA, McNary therefore requires that
plaintiffs like GE who seek to bring pattern and practice
challenges first show that the statute provides no meaningful
judicial review for their claims. Because GE could pursue its
due process claims in an enforcement or reimbursement
proceeding, EPA argues, the district court lacked jurisdiction
over the company‘s pattern and practice challenge.

Properly read, however, McNary‘s conclusion that the
immigration statute‘s jurisdiction-stripping provision
presented no bar to a pattern and practice suit did not depend
on the unavailability of alternative means of judicial review.
Instead, it rested entirely on the Court‘s analysis of the
jurisdictional provision‘s text: ―Given Congress‘ choice of
statutory language, we conclude that challenges to the
procedures used by INS do not fall within the scope of [the
jurisdictional bar]. Rather, we hold that [that provision]
applies only to review of denials of individual SAW
applications.‖ Id. at 494. Not until the next section of its
 26
opinion, in which it distinguished Heckler v. Ringer, 466 U.S.
602 (1984), did the Court address the availability of
alternative routes of judicial review. In Ringer, four plaintiffs
seeking Medicare reimbursement challenged a policy adopted
by the Secretary of Health and Human Services pursuant to
the Medicare statute, but in doing so they also sought to
establish a right to reimbursement in their particular cases.
The Court concluded that because the plaintiffs‘ claims were
―at bottom, . . . claim[s] that they should be paid‖ for their
particular procedures—which, under the statute, required
administrative exhaustion—the district court had no
jurisdiction to review them outside the administrative scheme.
Id. at 614; see id. at 620. In so holding, the Court emphasized
that plaintiffs‘ claims were neither separate from nor
collateral to their individual Medicare determinations: the
relief they sought ―to redress their supposed ‗procedural‘
objections‖ included ―a ‗substantive‘ declaration . . . that the
expenses of [their surgeries were] reimbursable under the
Medicare Act.‖ Id. at 614. Distinguishing Ringer in McNary,
the Court pointed out that the McNary plaintiffs sought no
ruling on their individual determinations, and that ―[u]nlike
the situation in [Ringer],‖ a ruling in their favor would not
―have the effect of establishing their entitlement to SAW
status‖ outside the exclusive statutory regime. McNary, 498
U.S. at 495. Likewise, because a ruling in GE‘s favor would
invalidate not a single UAO, section 113(h) presents no bar to
the company‘s pattern and practice claim.

Although occasionally speaking in broad terms, our cases
interpreting McNary hew to this distinction between collateral
and particularized claims. For example, in Daniels v. Union
Pacific Railroad Co., 530 F.3d 936, 943–44 (D.C. Cir. 2008),
we held that McNary did not give the district court
jurisdiction over a due process challenge to railroad
employees‘ demotions, i.e., individual challenges to particular
 27
agency actions that were otherwise reviewable exclusively in
the court of appeals. True, we stated that ―the availability of
effective judicial review is the touchstone of the McNary
exception,‖ id. at 943, but we said that only in concluding that
the constitutional nature of plaintiffs‘ claims was insufficient,
standing alone, to avoid the statutory bar on district court
review of precisely the type of individualized claims plaintiffs
had brought. Indeed, the plaintiffs‘ claims were akin to
Ringer not McNary: among other things, they sought
―reinstate[ment] . . . with full back-pay and benefits,‖ id. at
942 n.11 (internal quotation marks omitted), relief in no way
collateral to their substantive claims. Similarly, in John Doe,
Inc. v. DEA, 484 F.3d 561 (D.C. Cir. 2007), we rejected a
drug manufacturer‘s argument that McNary allowed the
district court to review the denial of a permit otherwise
reviewable only in the court of appeals. Although we did say
that ―the holding in McNary cannot be divorced from the
Court‘s obvious concern that, absent district court review of
the plaintiffs‘ claims, meaningful judicial review would have
been entirely foreclosed,‖ id. at 569, we made that
observation in the context of a Ringer-like challenge—the
drug manufacturer sought review of a particular order denying
his permit application, a claim the statute required to be heard
in the court of appeals. See id. at 564. In fact, Doe made no
claims at all relating to DEA ―patterns‖ or ―practices.‖ See id.
at 570–73; see also Fornaro v. James, 416 F.3d 63, 68 (D.C.
Cir. 2005) (finding that McNary did not support district court
jurisdiction outside of administrative review process where
plaintiffs sought a ruling that would require the payment of
benefits in particular cases); City of Rialto, 581 F.3d at 877
(finding that district court lacked jurisdiction over claim that
―[l]ike the claims in Ringer . . . [was] nothing more than a
request for direct review of the validity‖ of a UAO).
Accordingly, our cases interpreting McNary only bar
claimants from circumventing statutory provisions that give
 28
appellate courts jurisdiction to hear their individual
challenges. Those cases leave undisturbed McNary‘s holding
that claims falling outside the text of a jurisdiction-channeling
provision—like GE‘s pattern and practice challenge—may
proceed in the district court.

Finally, EPA contends that even if section 113(h) permits
GE‘s pattern and practice claim, GE lacks standing to bring it.
See Reno v. Catholic Soc. Servs., 509 U.S. 43, 56 (1993)
(noting that if a statute with a jurisdiction-delaying provision
allows review of pattern and practice claims, those ―claims
still must satisfy the jurisdictional and justiciability
requirements that apply in the absence of a specific
congressional directive‖). Constitutional standing is satisfied
if a plaintiff demonstrates ―the now-familiar elements of
injury in fact, causation, and redressability.‖ Lance v.
Coffman, 549 U.S. 437, 439 (2007) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992)). GE easily satisfies
these requirements.

GE claims that EPA‘s allegedly unconstitutional
practices and procedures repeatedly injure the company. For
its part, ―EPA does not dispute . . . that [it] has issued 68
UAOs to GE,‖ GE IV, 595 F. Supp. 2d at 17, nor does it
challenge the company‘s allegations that it has received
additional UAOs ―during the pendency of this case,‖ and that
it ―is currently participating in response actions at 79 active
CERCLA sites at any of which it may be issued UAOs‖ in the
future, Reply Br. 22. Thus, GE has a personal stake in the
outcome of this litigation, and unlike some of the plaintiffs in
the cases EPA cites, the company alleges past injury and
threatened future harm without relying on the issuance of
UAOs to third parties. Cf. City of Rialto, 581 F.3d at 877
(finding that plaintiff lacked prudential standing to raise
claims of third parties). Finally, GE‘s injuries, if proven, are
 29
clearly attributable to EPA‘s administration of CERCLA and
redressible by a declaratory judgment finding such practices
unconstitutional.

Pattern and Practice Challenge
Having concluded that the district court had jurisdiction
to consider GE‘s pattern and practice claim, we can quickly
dispose of its merits. Although GE‘s briefs are less than
clear, we understand the company to be arguing that the way
in which EPA implements CERCLA‘s UAO provisions
increases the frequency of UAOs and decreases their
accuracy, thus tipping the Matthews v. Eldridge balance
toward a finding that the process is constitutionally defective.
For example, GE points to EPA‘s ―enforcement first‖ policy,
by which the agency issues UAOs whenever settlement
negotiations fail, as well as to the agency‘s delegation of
authority to subordinate regional employees who allegedly
issue UAOs in time to comply with internal agency reporting
deadlines. Appellant‘s Br. 45–46. GE argues that by
encouraging EPA to issue UAOs more frequently, and by
increasing the risk that those UAOs will be erroneous, these
and other policies targeted in the company‘s briefs make it
more likely that PRPs will suffer pre-hearing ―deprivations‖
in the form of damage to their stock price, brand value, and
credit rating. As GE‘s counsel conceded at oral argument,
however, if such harms are insufficient to trigger due process
protection, then this argument must fail. See Oral Arg. Tr.
21–23. Thus, because we have held that these consequential
effects do not qualify as constitutionally protected property
interests, see supra at 15–19, we need not—indeed, we may
not—apply Matthews v. Eldridge to determine what process is
due. In other words, even if GE is correct that EPA‘s
implementation of CERCLA results in more frequent and less
accurate UAOs, the company has failed to identify any
constitutionally protected property interest that could be
 30
adversely affected by such errors. See Roth, 408 U.S. at 570–
71 (―[T]o determine whether due process requirements apply
in the first place, we must look not to the ‗weight‘ but to the
nature of the interest at stake.‖).

In a few sentences in its opening brief, GE also contends
that even if CERCLA is not facially coercive, EPA
administers the statute in a way that ―intimidate[s] PRPs from
exercising the purported option of electing not to comply with
a UAO so as to test an order‘s validity, giving rise to an
independent due process violation under Ex Parte Young.‖
Appellant‘s Br. 49. To the extent GE makes this argument, it
urges us to infer coercion from the fact that the vast majority
of PRPs elect to comply with UAOs. Id. at 49–50. As GE‘s
amicus puts it, ―[t]he dearth of non-complying PRPs reflects
the exceptional coerciveness of UAOs and strongly supports
GE‘s argument that the regulatory scheme amounts to a
violation of due process under Ex Parte Young.‖ Chamber of
Commerce Amicus Br. 20.

Rejecting this argument, the district court began by
explaining, properly in our view, that the pattern and practice
claim added little to GE‘s facial Ex Parte Young challenge:
regardless of EPA‘s policies—for example, GE alleges that
the agency coerces PRPs into compliance by threatening to
seek multiple penalties for violations at a single UAO site—
―a judge ultimately decides what, if any, penalty to impose.‖
GE IV, 595 F. Supp. 2d at 18. As noted above, moreover,
CERCLA‘s sufficient cause and willfulness defenses protect
PRPs from unwarranted fines and damages. See supra at 11–
12. As to GE‘s argument that the high incidence of UAO
compliance evidences coercion, the district court found that
―GE‘s own expert . . . demonstrate[d] that instances of
noncompliance are sufficiently numerous to suggest that
PRPs are not, in fact, forced to comply.‖ GE IV, 595 F. Supp.
 31
2d at 28–29 (GE‘s expert found that ―of the 1,638 PRPs who
have been issued UAOs most recently, there were 75
instances of noncompliance—a rate of 4.6 percent.‖). And for
our part, we observe that in light of the extensive procedures
CERCLA requires EPA to follow before issuing a UAO,
including notice and comment, supra at 4–5, recipients may
be complying in large numbers not because they feel coerced,
but because they believe that UAOs are generally accurate
and would withstand judicial review. In any event, given that
GE squarely challenges neither the district court‘s factual
findings, see Fed. R. Civ. P. 52(a)(6), nor its legal
conclusions, we have no basis for second-guessing the district
court‘s resolution of this issue.

IV.
We fully understand, as GE argues, that the financial
consequences of UAOs can be substantial. We also
understand that other administrative enforcement schemes
that address matters of public health and safety may provide
greater process than does CERCLA. See Appellant‘s Br. 40–
41; Chamber of Commerce Amicus Br. 25–30; but see NRDC
Amicus Br. 30–33 (arguing that ―[n]umerous environmental
statutes other than CERCLA establish regimes in which an
agency orders an entity to comply with a statute without prior
. . . trial-type hearings‖). Such concerns, however, do not
implicate the constitutionality of CERCLA or of the policies
and practices by which EPA implements it. Even if ―[i]n the
best of all worlds,‖ greater process ―might be
desirable, . . . Congress . . . struck a different balance‖ in
designing CERCLA‘s UAO regime. Ringer, 466 U.S. at 627.
Because our judicial task is limited to determining whether
CERCLA‘s UAO provisions violate the Fifth Amendment
 32
either on their face or as administered by EPA, we affirm the
decisions of the district court.

So ordered.