Environmental Law - Travis M. Trimble

• Publication year: 2004

Environmental Lawby Travis M. Trimble^*

In 2003 the United States Court of Appeals for the Eleventh Circuit decided two cases concerning the Clean Air Act,¹ holding that provisions allowing the Environmental Protection Agency ("EPA") to address compliance issues through the issuance of administrative compliance orders are unconstitutional² and that the Clean Air Act does not waive the United States's defense of sovereign immunity in an action for punitive penalties for past violations of air pollution laws.³ The court also considered for the first time the circumstances under which a state enforcement action would preempt a citizen suit under the Clean Water Act.⁴ This Article also discusses a district court case that decides two issues which have not yet been addressed by the Eleventh Circuit: (1) whether and to what extent the Supreme Court's decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers⁵ changed the definition of "navigable waters" under the Clean Water Act and the Oil Pollution Act;⁶ and (2) what standards, if any, apply to a government cleanup under the Oil Pollution Act for the purpose of determining whether the cleanup costs were reasonable.⁷ This Article then discusses a district court case holding that a county government was acting as a market participant in the solid waste collection and disposal markets, and thus, its contract with a private waste hauler was not subject to review under the Commerce Clause of the United States Constitution.⁸ Finally, this Article briefly reviews a district court holding remanding an Army Corps of Engineers issuance of a "Finding of No Significant Impact" under the National Environmental Policy Act⁹ in connection with a dam project in Alabama,¹⁰ and an Eleventh Circuit decision awarding litigation costs to plaintiffs under the Clean Water Act for fees paid to an expert for monitoring compliance with a consent order.¹¹

I. THE CLEAN AIR ACT

A. Constitutionality

In Tennessee Valley Authority v. Whitman,¹² the Eleventh Circuit held unconstitutional those provisions of the Clean Air Act ("CAA") that allow the EPA to address various alleged violations of the Act by issuing an administrative compliance order ("ACO").¹³ The court concluded that under the plain language of the CAA, the EPA could issue an ACO having the force and effect of law, with civil and criminal penalties possible for noncompliance, without the affected party having an opportunity to challenge judicially the substantive allegations of the ACO.¹⁴ For these reasons, the ACO provisions violate the Due Process Clause of the Fifth Amendment of the United States Constitution.¹⁵

In this case, between 1982 and 1996, the Tennessee Valley Authority ("TVA") replaced boilers at nine of its coal-fired electrical power plants without obtaining permits from the EPA. In 1999 the EPA contended that these projects triggered New Source Review under the CAA and that the TVA was required to have met New Source Performance Standards ("NSPS") for the replacement boilers.¹⁶ The TVA contended that the projects constituted "routine maintenance" at the plants, which was exempt from NSPS.¹⁷ The EPA issued an ACO, which required theTVA to obtain permits for the projects and to bring the plants into compliance with the NSPS. The TVA disputed the findings of the ACO on several grounds. Subsequently, the EPA issued a notice to the TVA that it would reconsider the ACO but directed the TVA to comply with the ACO pending its reconsideration. The EPA undertook its reconsideration by referring to the Environmental Appeals Board ("EAB") for adjudication of the issue of whether the TVA violated the CAA by replacing the boilers in its plants without permits. The EAB, after a hearing,¹⁸ affirmed most of the ACO, which directed the TVA to obtain permits and comply with the NSPS at its plants that had undergone boiler replacement. The TVA petitioned the Eleventh Circuit for review of the EPA's notice of reconsideration, which referred the matter to the EAB for adjudication and review of the EAB's decision.¹⁹

The threshold issue before the court, and the one on which the case turned, was whether the EAB decision affirming the ACO was a final decision and therefore subject to judicial review.²⁰ After analyzing the ACO provisions in context with other enforcement actions available to the EPA under the CAA and the statutory history of the Act itself, the court concluded that Congress likely did not intend for an ACO to be a final order.²¹ However, in looking to the "unambiguous language" of the ACO provisions themselves,²² the court concluded that "Congress established a scheme in which noncompliance with an ACO issued 'on the basis of any information available' can lead to the imposition of severe civil penalties and imprisonment — even if the EPA is incapable of proving an act of illegal pollution in court."²³ The court noted that under the statute, court review of an ACO was limited to two issues: (1) whether the ACO was issued, and (2) whether the ACO was in fact violated.²⁴ Thus, a party receiving an ACO, such as the TVA, would have no opportunity to challenge the substantive allegations of the order in court.²⁵

For this reason, the court held that "[t]he Clean Air Act is unconstitutional to the extent that mere noncompliance with the terms of an ACO can be the sole basis for the imposition of severe civil and criminal penalties," and therefore, "ACOs lack finality . . .,"²⁶ depriving the court of jurisdiction to review their validity.²⁷ The court stated that for an ACO to constitute a final agency action, "[t]he EPA must do what it believes it has been required to do all along — namely, prove the existence of a CAA violation in district court, including the alleged violation that spurred the EPA to issue the ACO in this case."²⁸

B. Sovereign Immunity

In City of Jacksonville v. Department of the Navy,²⁹ the Eleventh Circuit held that the CAA did not waive the defense of sovereign immunity available to the United States when the request for relief was for punitive penalties for past, noncontinuing violations of state and local pollution control laws enacted pursuant to the CAA.³⁰

In this case, the City of Jacksonville sued the Navy in state court, alleging that from 1996 through 2001, the Navy violated various state and local air pollution laws enacted under the CAA. The City did not allege any continuing violations but instead sought punitive penalties for the past violations. The Navy answered with the defense of sovereign immunity and removed the case to district court pursuant to 28 U.S.C. Sec. 1442(a)(1).³¹ The City moved for remand, contending that the CAA implicitly precluded removal. In the meantime, the Navy moved for judgment on the pleadings as to its sovereign immunity defense. In response, the City contended that the CAA waived the United States's sovereign immunity for punitive penalty actions. The district court held that removal was proper and that the CAA did waive the Navy's sovereign immunity defense.³² The Eleventh Circuit accepted the Navy's interlocutory appeal.³³

The court first considered the City's contention that the CAA implicitly precluded the Navy's removal of the state court case to district court and held that it did not.³⁴ The City based its contention on section 304-(e)³⁵ of the CAA, a subsection of the Act's citizen suit provision.³⁶ The court noted that, in contrast to removal actions under 28 U.S.C. Sec. 1441,³⁷ there was no requirement in 28 U.S.C. Sec. 1442³⁸ that Congress "expressly override" a party's right to remove an action for Congress to preempt such removal.³⁹ However, the court stated that it was nevertheless required by precedent to find that Congress's intent to preclude such removal be "clear and manifest."⁴⁰ The court found no clearly manifested congressional intent to preclude removal in either the language of section 304(e) or in the legislative history of the CAA.⁴¹ The court also noted that a sovereign immunity defense was precisely the kind of defense Congress intended the federal courts to resolve.⁴² Thus, the court held that the Navy's removal was proper and not precluded by the CAA.⁴³

Next, the court held that the CAA did not waive the United States's sovereign immunity defense to actions for punitive penalties for past violations of the Act.⁴⁴ The court first noted, and the Navy conceded, that the CAA did waive the sovereign immunity defense for continuing violations under the federal facilities provision of the CAA.⁴⁵ The federal facilities provision provides that the federal government shall be subject "to any process and sanction, whether enforced in Federal, State, or local courts, or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law . . . ."⁴⁶ The City contended that this provision waived the defense for punitive-penalty actions as well.⁴⁷ The court noted that while no court had addressed this issue under the CAA, the Supreme Court in United States Department of Energy v. Ohio⁴⁸ addressed the issue under the Clean Water Act's federal facilities provision,⁴⁹ which has language similar to that of the CAA.⁵⁰ There, the Court held that the CWA did not waive sovereign immunity from punitive penalties.⁵¹ The court followed the Supreme Court's reasoning that the word "sanction" in the statute meant coercive sanction only, "to the exclusion of punitive fines."⁵²

The court also rejected the City's contention that the Act's citizen suit provision⁵³ waived the defense.⁵⁴ The court found that while certain language in the provision constituted a waiver of sovereign immunity, the waiver was not of greater extent than the waiver in the federal facilities provision.⁵⁵ The court concluded that because the CAA contained no "affirmative and unequivocal waiver" of the sovereign immunity defense to punitive-penalty actions, the...