Citizen Suits Against the Federal Government and Tribes

• Author: Robin Kundis Craig
• Pages: 219-231

cha pter nine

Citizen Suits Against the

Federal Government and Tribes

As was d iscussed in Cha pter 4, federal sovereig n immun ity is a penumbral

constitutional right of the federal government to be free from lawsuits unless it

expressly consents to them. Chapter 4 reviewed the Clean Water Act’s (CWA’s

or the Act’s) waiver of sovereign immunity for federal facilities, found in §313,

and the application of that waiver in state regulation and enforcement under the

Act. As a result of U.S. Supreme Court decisions and congressional amendments,

Chapter 4 concluded, states can rely on §313 to waive federal facilities’ sovereign

immunity from state permit requirements and declaratory and injunctive enforce-

ment. However, as a result of the Court’s decision in U.S. Department of Energy v.

Ohio1 and Congress’ subsequent failure to amend the CWA, §313 does not waive

federal facilities’ sovereign immunity from punitive civil penalties, both because

civil penalties assessed pursuant to delegated state permit programs do not “arise

under federal law,” as §313 requires, and because §313 clearly waives U.S. sover-

eign immunity only for coercive sanctions, such as contempt sanctions, that enforce

court or administrative processes.

Section 313, however, is not the only waiver of sovereign immunity in the CWA.

Section 505, the Act’s citizen suit provision, also waives federal immunity. More-

over, §505 seems to avoid the pitfalls that states faced in relying on §313’s waiver

of sovereign immunity, because §505 appears to subject the federal government to

both CWA liability and CWA civil penalties. The actual availability of citizen suits

against the United States and tribes is the subject of this chapter.

I. The CWA’s Waiver of Sovereign Immunity for Subsection (a)(1) Citizen

Suits Against Federal Facilities That Are Violating the Act

A. Section 505’s Procedurally Limited Waiver of Sovereign Immunity

Section 505 explicitly declares that “any citizen may commence a civil action on

his own behalf . . . against any person (including [ ] the United States . . .) who is

alleged to be in violation of (A) an eff‌luent standard or limitation under this chapter

219

1. 503 U.S. 607, 22 ELR 20804 (1992).

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