Federal sovereign immunity versus state environmental fines.

• Date: 22 March 2006
• Author: Hughes, Harry M.

1. INTRODUCTION II. BACKGROUND A. Fiscal Law Concerns B. History of Sovereign Immunity III. OVERVIEW OF MAJOR ENVIRONMENTAL LEGISLATION A. Acts Not Subjecting Federal Facilities to State Fines 1. Clean Water Act 2. Comprehensive Environmental Response, Compensation and Liability Act 3. Toxic Substances Control Act 4. Emergency Planning and Community Right-to-Know Act 5. Pollution Prevention Act B. Acts Subjecting Federal Facilities to State Fines 1. Resource Conservation and Recovery Act 2. Safe Drinking Water Act 3. Toxic Substances Control Act: Lead-Based Paint C. Act Where State Fine Issue is Unsettled: Clean Air Act IV. CONCLUSION I. INTRODUCTION

   Over the past several decades, Congress has enacted numerous laws designed to protect human health and the environment. All major environmental statutes provide a mechanism for individual states to assume the primary responsibility for enforcing these laws and regulations. In order for a state to receive the delegation of authority to run a particular environmental program, the state must first enact adequate laws and regulations to satisfy the U.S. Environmental Protection Agency (EPA) that the state can properly enforce environmental standards as least as stringent as those imposed by federal law. "Cooperative federalism" is a system whereby the federal government establishes statutory minimum standards and procedural requirements and then the states enact implementation and enforcement programs subject to EPA approval and oversight. (1) The delegation of primary responsibilities to the states has led to a complex system of intertwining federal and state environmental statutes and regulations.

   Congress has amended most federal environmental statutes several times over the years to improve upon or expand the original design of the environmental protection schemes. Congress has also amended environmental laws to clarify its intent in the face of contrary court opinions. (2) This is particularly true with regard to waivers of federal sovereign immunity. (3) Without a clear and unambiguous waiver of sovereign immunity, federal law prohibits agencies from expending funds to comply with state environmental laws and regulations. (4)

   Federal facilities take a particularly staunch stance on this concept when it comes to the payment of state environmental fines and penalties. States are clearly responsible for the majority of environmental enforcement actions (5) and some argue that federal facilities are among the worst at environmental compliance. (6) One of the primary goals of environmental enforcement is deterrence. (7) Conceptually, the fear that they will be substantially fined if they are caught is a deterrent to violating environmental laws. It is not difficult to see the conflict between the states' responsibility to enforce environmental compliance and a federal facility's claim that it does not have to pay fines for particular environmental violations. (8)

   States assert that, without the authority to impose monetary fines against federal facilities, they are powerless to ensure environmental compliance. Such claims imply that federal facilities will not comply with environmental laws absent the threat of a punitive fine. This implication is erroneous. Over the years, federal facilities have worked hard to correct violations cited in enforcement actions, and the vast majority of these had no fines associated with them. The availability of sovereign immunity as a defense against punitive fines only acts as a shield to the payment of the fine, not as a sword against complying with the underlying statute. The implication also ignores the fact that federal employees are still subject to criminal prosecution. (9)

   This article addresses the current status of the ever-changing nature of the law regarding federal sovereign immunity as it relates to the payment of state-imposed environmental fines. (10) Prior to exploring the current status of the law in this area, the article provides background information regarding the doctrine of sovereign immunity. The review of the major environmental legislation is organized into three categories: those not subjecting federal facilities to state fines, those that do, and those where the issue is unsettled. Federal facilities are not subject to punitive state fines under the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Emergency Planning and Community Right-to-Know Act, and the Pollution Prevention Act. Federal facilities are subject to state fines for violations of hazardous waste regulations under the Resource Conservation and Recovery Act including its Underground Storage Tank provisions, the Safe Drinking Water Act, and the Toxic Substances Control Act's lead-based paint provisions.

   Lastly, the authority for states to fine federal facilities under the Clean Air Act is in active litigation. After reviewing the current state of the law, it will become apparent that the trend is toward greater state authority. In that regard, another one of the great timbers in the sovereign immunity palisade will soon fall as federal facilities begin paying state fines for Clean Air Act violations.

2. BACKGROUND

   1. Fiscal Law Concerns

      When laced with having to pay a relatively minor fine for an undisputable environmental violation, installations often would prefer to just pay the fine to achieve a quick solution, without regard to sovereign immunity. The primary reason for this attitude is that installations value existing goodwill with the regulatory agencies and fear damaging the relationship if they balk at paying the fine. However, when installations explain why federal law prevents payment of the fine, usually good installation-regulator relationships remain intact. That is not to say, however, that state regulators always agree with the application of sovereign immunity--as evidenced by the body of case law resulting from litigation over the issue.

      As a general proposition, federal agencies have no authority to use appropriated funds to pay fines or penalties resulting from their activities. (11) Only when an express statutory waiver of sovereign immunity exists may a federal agency do so. (12) The reason is that the Anti-Deficiency Act (ADA), (13) prohibits federal agencies from expending appropriated funds unless authorized by law. (14) Most importantly for those involved, federal employees are subject to adverse personnel actions (15) and criminal sanctions (16) for violating the ADA. Regulators are usually sensitive to the fact that installation personnel could possibly go to jail for paying a fine for which sovereign immunity has not been waived. Experienced regulators know that sometimes they have to agree to disagree, and, if necessary, let the lawyers sort out the conflicting legal interests.

   2. History of Sovereign Immunity

      The United States, as sovereign, is immune from suit except when it consents to be sued. (17) A court's jurisdiction to entertain a suit against the United States is defined by the terms of the consent. (18) Similarly, states may not enforce their regulations upon the United States and its agencies unless the United States consents to such regulation. (19)

      Most courts and commentators agree that the idea behind our doctrine of sovereign immunity originated in the British common law with the axiom "the king can do no wrong" and the resulting inability of British subjects to sue the king in his own courts. (20) However, not all commentators agree that that is an accurate interpretation of the British history or that the doctrine was appropriately derived from that history. Some courts and commentators argue that British subjects had avenues of recourse against the king if he "did wrong," and some argue that the axiom "the king can do no wrong" really meant that the king was obliged to do no wrong because of his position of responsibility over his subjects. (21) In addition, some courts and commentators have argued that the assertion that British common law is the basis for our doctrine of sovereign immunity is incongruous with the ideals on which this country was founded and that, in fact, there is consent to suit contained in our Constitution. (22)

      Although the history regarding the British common law is not clear, it is clear that British common law in some way initially contributed to what has evolved into the contemporary doctrine of sovereign immunity that we have in the United States. The idea that the sovereign could not be sued in his own courts was adopted in the United States, regardless of the reliability of the perceived history.

      Unlike state sovereign immunity, however, federal sovereign immunity has no constitutional basis in the United States. (23) The doctrine of sovereign immunity in the United States has been established by the courts rather than the Constitution and, it can be argued, also has contemporary bases for its existence. (24)

      In 1821, Justice Marshall decided a case in favor of the United States on the grounds that it could not be sued: "The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits." (25) The first Supreme Court to decide a case solely upon the idea that the federal government is immune from suit did so in 1846. (26) This Court found that "There was no jurisdiction of this case in the Circuit Court, as the government is not liable to be sued, except with its own consent, given by law. Nor can a decree or judgment be entered against the government for costs." (27) The Supreme Court continued to find that the federal government holds such a protection. (28)

      Edwin M. Borchard is credited with inventing the phrase "sovereign immunity" in his article, Government Liability in Tort, published in the Yale Law Journal in 1921. (29) Courts began quoting Borchard's article and using the label "sovereign immunity" after...