United States Environmental Protection Agency v. General Electric Co.

No. 98-6279 (212 F.3d 689) (2d Cir. May 15, 2000)

ELR Digest

The court strikes its previous holding that pursuant to the waiver of sovereign immunity in the Administrative Procedure Act (APA), 5 U.S.C. § 702, the U.S. Environmental Protection Agency's (EPA's) refusal to respond to a corporation's nonparty subpoena is subject to judicial review under the standard of review in the APA, 5 U.S.C. § 706(2)(A). The corporation makes the plausible argument that even though 5 U.S.C. § 702 provides the waiver of EPA's sovereign immunity, such waiver does not necessarily mean that the APA furnishes the appropriate standard of review. Further, the question of the appropriate standard was not reached by the district court or argued in the Second Circuit. In addition, it may be unnecessary for the standard of review to be decided in this case, but if the question must be decided, the district court will have the benefit of a full hearing. All other aspects of the previous case, however, were affirmed.

A dissenting judge would not amend the previous opinion.

[A prior decision in this litigation is published at 30 ELR 20211.]

The full text of this opinion is available from ELR (7 pp., ELR Order No. L-230).

Counsel for Appellee
Mary Jo White, U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza
100 Church St., New York NY 10007
(212) 637-2200

Counsel for Appellant
Virginia A. Seitz
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 736-8271

[30 ELR 20622]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]