Citizen Suits Against the Federal Government and Tribes

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