Citizen Suits Against States and Territories and the Eleventh Amendment

AuthorRobin Kundis Craig
chapter ten
Citizen Suits Against States and
Territories and the Eleventh Amendment
From the beginning, Congress intended citizens to be able to sue states as well as
the United States for violations of the Clean Water Act (CWA or the Act). Thus, the
1972 citizen suit provision, like the current §505, provided that “any citizen may
commence a civil action on his own behalf . . . against any person (including . . .
any other governmental instrumentality or agency to the extent permitted by the
eleventh amendment to the Constitution). . . .1 Moreover, the Act clearly includes
states and “political subdivision[s] of a State” as “persons” subject to both the
citizen suit and the civil penalty provisions.2
As §505 also makes clear, however, citizen suits against states are subject to
the Eleventh Amendment to the U.S. Constitution. This amendment preserves the
states’ sovereign immunity, recognizing their status as independent if subordinate
sovereigns within the federali sm system. The Eleventh Amendment states that
“[t]he 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.”3
It functions not as a defense to liability, but rather as a constitutional limitation
on the jurisdiction of the federal courts, including their jurisdiction to hear CWA
citizen suits.4
I. Congress’ Attempt to Abrogate State Sovereign Immunity in the CWA
and the U.S. Supreme Court’s Eleventh Amendment Jurisprudence
On its face, the Eleventh Amendment does not appear to signif‌icantly limit citizen
suits against states. Its plain language only prohibits federal courts from hearing
lawsuits brought against a state by citizens of another state or citizens of a foreign
nation, and thus the federal courts would appear to have authority to hear environ-
mental citizen suits brought by a citizen against that citizen’s own state. However,
1. 33 U.S.C. §1365(a)(1) (2000).
2. Id. §1362(5).
3. U.S. Const. amend XI.
4. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).
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the Supreme Court has construed the Eleventh Amendment to apply to all private
lawsuits against states.5 Thus, states enjoy Eleventh Amendment immunity from
environmental citizen suits—unless Congress had both the authority and the intent
to abrogate such sovereign immunity through the citizen suit provision.
Like the United States, a state can waive its sovereign immunity and consent to
lawsuits against itself.6 However, because the states are subordinate sovereigns, like
tribes, Congress can also, in certain circumstances, peremptorily waive, or abro-
gate, states’ sovereign immunity, even over the states’ protest. Arguably, Congress’
authority to override the Eleventh Amendment derives most generally from the fact
that, after winning the Revolutionary War, the states voluntarily subordinated their
own sovereign powers to the United States. However, Congress’ clearest authority
to abrogate state sovereign immunity derives from the post-Civil War amendments,
especially §5 of the Fourteenth Amendment.7
Nevertheless, two Eleventh Amendment issues arose with regard to environmen-
tal citizen suits brought against states. First, it was unclear whether Congress had
authority pursuant to its Commerce Clause powers to abrogate the states’ Eleventh
Amendment sovereign immunity. Second, even if Congress had such constitutional
authority, the apparent reservation of states’ Eleventh Amendment rights in envi-
234 the cle an water act a nd t he cons tit ution
5. See, e.g., Tennessee Student Assistance Corp. v. Hood, 541 U.S. 446 (2004) (noting that “we have
recognized that the States’ sovereign immunity is not limited to the literal terms of the Eleventh Amend-
ment” (citations omitted)); Metcalf & Eddy, 506 U.S. at 144, 146 (noting that “[t]he Amendment is rooted
in a recognition that the States, although a union, maintain certain attributes of sovereignty, including
sovereign immunity” and aff‌irming that the Eleventh Amendment’s limitations extend beyond diversity
jurisdiction); Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991) (conf‌irming that the
Eleventh Amendment prohibits lawsuits based on federal question jurisdiction as well as lawsuits based
on diversity jurisdiction); Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990) (same);
Dellmuth v. Muth, 491 U.S. 223, 227-29 & n.2 (1989) (same); Welch v. Texas Dep’t of Highways & Pub.
Transp., 483 U.S. 468, 472-74 (1987) (same); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 237-
28 (1985) (same); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 97-100 (1984) (same);
Cory v. White, 457 U.S. 85, 89 (1982) (same); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974) (same);
Employees of Dep’t of Pub. Health & Welfare of Mo. v. Department of Pub. Health & Welfare of Mo.,
411 U.S. 279, 280 (1973) (same); United States v. Mississippi, 380 U.S. 128, 140 (1965) (same); Parden
v. Terminal Ry. of Ala. Docks Dep’t, 377 U.S. 184, 186 (1964) (same); Georgia R.R. & Banking Co.
v. Redwine, 342 U.S. 299, 304 n.13 (1952) (same); Ford Motor Co. v. Department of Treasury of Ind.,
323 U.S. 459, 464 (1945); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944) (same); Missouri v.
Fiske, 290 U.S. 18, 26 (1933) (same); Ex Parte New York, 256 U.S. 490, 497 (1921) (same); Duhne v.
New Jersey, 251 U.S. 311, 313 (1920) (same); Palmer v. Ohio, 248 U.S. 32, 34 (1918) (same); Smith
v. Reeves, 178 U.S. 436, 446 (1900) (same); Fitts v. McGhee, 172 U.S. 516, 524 (1899) (same); North
Carolina v. Temple, 134 U.S. 22, 30 (1890) (same); Hans v. Louisiana, 134 U.S. 1, 13, 15 (1890) (assert-
ing that federal jurisdiction over suits against states “was not contemplated by the Constitution when
establishing the judicial power of the United States”).
6. Lapides v. Board of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618-19 (2002); Scanlon, 473 U.S.
at 238; Clark v. Barnard, 108 U.S. 436, 447 (1883).
7. See, e.g., United States v. Georgia, 546 U.S. 151, 158 (2006); Tennessee v. Lane, 541 U.S. 509,
530-35 (2004) (both holding that Title II of the Americans With Disabilities Act validly abrogated state
Eleventh Amendment immunity because it was based on Congress’ authority under §5 of the Fourteenth
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