Seminole Tribe's Impact on Environmental Suits Against States in Federal Court

• Jurisdiction: United States,Federal
• Citation: Vol. 26 No. 9 Pg. 105
• Pages: 105
• Publication year: 1997

26 Colo.Law. 105 Colorado Lawyer 1997.

1997, September, Pg. 105. Seminole Tribe's Impact on Environmental Suits Against States in Federal Court

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105

Vol. 26, No. 9, Pg. 105

The Colorado Lawyer
September 1997
Vol. 26, No. 9 [Page 105]

Specialty Law Columns
Natural Resource and Environmental Notes
Seminole Tribe's Impact on Environmental Suits Against States in Federal Court
by F. J. "Rick" Dindinger

On March 27, 1996, the U.S. Supreme Court held in Seminole Tribe v. Florida1 that the Eleventh Amendment bars suits in federal courts by Indian tribes seeking to enforce the Indian Gaming Regulatory Act against states. The ramifications of this holding extend beyond the Seminole Tribe facts. Indeed the Court's decision potentially extends to all federal statutes enacted pursuant to Commerce Clause power that purport to create federal court jurisdiction over states among them the many environmental statutes governing mining oil and gas, and other resource development.

The Eleventh Amendment

The Eleventh Amendment provides: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any Foreign State."2 While the amendment's language speaks only of suits by citizens from other states, the Supreme Court has consistently interpreted it to preclude all suits against a state in federal court.3

The Eleventh Amendment's jurisdictional bar is not absolute. A state may waive its immunity and consent to suit in federal court.4 In addition, the Ex Parte Young5 doctrine allows plaintiffs to sue individual state officials in federal court for declaratory and injunctive relief to stop continuing violations of federal law.6 Finally, under some circumstances Congress may abrogate a state's Eleventh Amendment immunity.7

The Eleventh Amendment potentially applies to all actions brought against states under environmental laws. On its face and as consistently interpreted, the amendment serves to prevent any such suit brought in federal court by environmentally concerned citizens and environmental organizations. Nevertheless, if one of the exceptions to Eleventh Amendment immunity applies, states may still be subject to these private environmental suits.

The Seminole Tribe Decision

Prior to Seminole Tribe, the Supreme Court permitted congressional abrogation of a state's Eleventh Amendment immunity in two instances. In Fitzpatrick v. Bitzer,8 the Court authorized abrogation whenever Congress legislates pursuant to § 5 of the Fourteenth Amendment, since the enforcement provisions of § 5 "necessarily limited" antecedent Constitutional provisions.9 In Pennsylvania v. Union Gas Co.,10 the Supreme Court recognized congressional power to abrogate immunity pursuant to the Interstate Commerce Clause11 on the theory that the clause granted Congress similar power as § 5 of the Fourteenth Amendment.12

Seminole Tribe addressed these two instances and held that Union Gas improperly extended Fitzpatrick in permitting abrogation of Eleventh Amendment immunity under the Commerce Clause. The Fitzpatrick decision relied on the rationale that the Fourteenth Amendment limited state authority possessed under preceding Constitutional provisions and thereby altered the existing balance between state and federal power,13 but, according to Seminole Tribe, this rationale cannot serve to abrogate Eleventh Amendment immunity under the Commerce Clause, since the amendment came after the clause in time and therefore worked to expand state authority at the expense of power previously conferred on Congress by the Commerce Cause.14

In addition to this "last-in-time-controls" rationale, the Court rejected Fitzpatrick's application because the Fourteenth Amendment contained express terms directed at the states that were intended to limit a state's power, while the Commerce Clause contained no such language.15 Consequently, the Seminole Tribe decision expressly overruled Union Gas and restored Eleventh Amendment immunity to statutory schemes created by Congress pursuant to the Commerce Clause.16

The Union Gas Decision

Union Gas, in a plurality decision, found congressional authority to abrogate Eleventh Amendment immunity under Commerce Clause legislation, specifically the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 ("CERCLA").17 Under CERCLA, the U.S. government sued Union Gas Co. for cleanup costs at a dismantled coal gasification plant.18 Union Gas filed a third-party complaint against Pennsylvania on grounds that the Commonwealth was an "owner or operator" of the plant, and Pennsylvania sought dismissal of that complaint on grounds that Eleventh Amendment immunity barred the suit.19

The Union Gas plurality first evaluated whether CERCLA clearly expresses an intent to hold states liable, and concluded that Congress intended that states be liable along with everyone else for cleanup costs recoverable under CERCLA. After concluding that CERCLA permits suits against states in federal court, Union Gas analyzed whether the Commerce Clause granted Congress the power to enact such a statute. By analogy to Fitzpatrick's abrogation of Eleventh Amendment immunity under the Fourteenth Amendment, the plurality ruled that the clause expands federal power while contracting state power. Finally, the plurality noted the need for congressional solutions to environmental problems.20 Based on these factors, the Union Gas plurality held that Congress possesses authority pursuant to the Commerce Clause to render states liable.21

Four justices dissented,22 acknowledging that Congress intended for CERCLA to render states "liable for money damages in private suits."23 However, they declared this intent, even with CERCLA's textual imposition of liability upon states, insufficient to abrogate Eleventh Amendment immunity. The dissenter's position stemmed, fundamentally, from the rationale that "state immunity from suit in federal courts is a structural component of federalism, and not merely a default disposition that can be altered by actions of Congress pursuant to its Article I powers."24

The Seminole Tribe Decision

The case involved the Seminole Tribe's suit against Florida for its failure to negotiate with the Tribe as required under the Indian Gaming Regulatory Act ("IGRA").25 Congress passed the IGRA pursuant to the Commerce Clause provision vesting plenary authority in Congress over Indian commerce and Indian tribes.26 The IGRA requires tribes to obtain a state's cooperation prior to operating casino-style gaming27 and requires states to negotiate "with the Indian tribe in good faith to enter such a compact."28 Finally, it expressly authorizes tribes to sue states in federal courts if a state fails to conduct such negotiations in good faith.29

"If one of the exceptions to Eleventh Amendment immunity applies, states may still be subject to private environmental suits."

Florida moved to dismiss on grounds that the case violated the state's sovereign immunity from suit in federal court.30 After the district court denied Florida's motion,31 the Eleventh Circuit reversed, holding that the Eleventh Amendment barred the suit.32 The Supreme Court granted certiorari33 and affirmed the Eleventh Circuit by holding that none of the powers conferred by Article I of the Constitution authorize Congress to abrogate Eleventh Amendment immunity.

The Supreme Court reached its decision by applying a two-pronged conjunctive test. Under the first branch of the test, the Court determined that Congress unequivocally expressed an intent to abrogate states' Eleventh Amendment immunity.34 The Court reached this conclusion without requiring a specific statutory reference to the Eleventh Amendment, which signifies that Congress need not refer explicitly to the amendment in a statute in order for that statute to enjoy the requisite intent to abrogate a state's immunity.

Once the Court made a positive determination under the test's first prong, it then addressed whether Congress acted "pursuant to a valid exercise of power"35 and evaluated whether the Commerce Clause empowered Congress to abrogate Eleventh Amendment immunity. The Supreme Court stated that Union Gas stands as the only case recognizing such power and concluded that no "principled distinction" exists between the Indian Commerce Clause and the Interstate Commerce Clause.36 This conclusion resulted in Seminole Tribe's complete review of the Union Gas decision.

The consequence of the Court's review led it to explicitly overrule Union Gas. The Court reached its decision by relying on the position that the Eleventh Amendment limited federal courts' Article III jurisdiction by barring all suits by any citizens against any state. Although the amendment's text speaks only of suits against a state by citizens from other states, the Seminole Tribe majority relied on stare decisis from Hans v. Louisiana for the...