HOW CLEARLY DOES CONGRESS NEED TO WAIVE SOVEREIGN IMMUNITY? ENVIRONMENTAL IMPLICATIONS OF THE CLEAR STATEMENT RULE.

• Author: Allen, Gregory A.
• Position: Ninth Circuit Environmental Review

1. Introduction 586 II. Background on the Waiver of Sovereign Immunity 589 A. The Origins of Sovereign Immunity and the Development of Modern Clear Statement Jurisprudence 589 B. United States Department of Energy v. Ohio 591 C. Circuit Split Regarding the Clean Air Act 595 III. The Modern Supreme Court 598 A. Justice Thomas 598 B. Chief Justice Roberts 601 C. Justice Alito 604 D. Justice Sotomayor 607 E. Justice Kagan 609 F. Justice Gorsuch 611 G.Justice Kavanaugh 615 H. Justice Barrett 617 IV. Conclusion 619 I. INTRODUCTION

   In Deschutes River Alliance v. Portland General Electric (DRA), (1) the Ninth Circuit held that Congress did not abrogate tribal sovereign immunity in a Clean Water Act (CWA) (2) citizen-suit enforcement action for injunctive relief. (3) Since the tribe was a necessary party as a cooperator of the hydroelectric facility whose CWA [section] 401 certification (4) was being challenged, the Ninth Circuit reversed the district court's ruling that the CWA abrogated tribal sovereign immunity and dismissed the case for failure to join the tribe as a necessary party. (5) The Ninth Circuit--splitting from the Eighth and Tenth Circuits (6)--applied a strict clear statement rule: to abrogate tribal sovereign immunity, Congress must do so clearly and unequivocally. (7) The Ninth Circuit found no abrogation in the CWA, despite language in the statute that waives sovereign immunity against "any person" and later defines "person" to include "municipalities" and "municipalities" to include "an Indian tribe." (8)

   The Ninth Circuit reasoned that Congress did not abrogate tribal sovereign immunity in the CWA because Congress did not explicitly include tribes, unlike how it included states and the federal government, in the citizen-suit waiver provision. (9) This holding contradicted the Eighth Circuit's interpretation of the parallel provisions in the Resource Conservation and Recovery Act (RCRA) (10) as abrogating tribal sovereign immunity. (11) The Eighth Circuit had reasoned that RCRA abrogates tribal sovereign immunity because, like the CWA, it abrogates the sovereign immunity of any "person" and defines "person" to include tribes. (12) The Eighth Circuit also relied on legislative history to support its finding that Congress meant for RCRA to apply to tribes, (13) whereas the Ninth Circuit bolstered its reading with legislative history from the CWA (14) to conclude that Congress included tribes within the definition of "municipalities" only to make tribes eligible for federal grants--not to subject them to unconsented suits. (15) The Ninth Circuit also split from the Tenth Circuit, differentiating the Safe Drinking Water Act (SDWA) (16) from the CWA. (17) The Ninth Circuit noted that the citizen-suit provision of the SDWA, unlike the citizen-suit provision of the CWA, does not explicitly waive the sovereign immunity of the federal or state governments, and therefore Congress's inclusion of tribes within the definition of "municipalities" in the SDWA is a clearer abrogation of tribal sovereign immunity than in the CWA. (18)

   The Ninth Circuit's strict application of the clear statement rule for abrogation of tribal sovereign immunity implies that environmental regulations against any tribally operated or co-operated facility might be practically impossible to enforce, by a citizen suit or even by the Environmental Protection Agency. (19) This ruling followed a trend in Supreme Court sovereign immunity jurisprudence: to apply a strict clear statement standard despite seemingly obvious congressional intent. (20) In the context of the Clean Air Act (CAA), (21) however, the circuit courts are split on the issue of whether Congress waived federal sovereign immunity for the purposes of punitive fines. (22) Some circuits have followed the reasoning of United States Department of Energy v. Ohio {Dep't of Energy v. Ohio) (23)--where the Supreme Court interpreted the CWA and RCRA as not waiving federal sovereign immunity for punitive fines despite seemingly clear congressional intent--and have applied the strict clear statement rule. (24) Other circuits have found material differences between the relevant provisions of the CWA and the CAA, and have relied on legislative history to conclude that Congress did waive federal sovereign immunity for punitive fines in the CAA. (25)

   This Chapter explores the question of how clearly Congress needs to indicate waiver of sovereign immunity and predicts how the modern Supreme Court would rule if the issue of waiving federal sovereign immunity for punitive fines in the CAA came before it. Part II describes the history of Supreme Court jurisprudence on waiver of sovereign immunity, the Dep't of Energy v. Ohio case, and the split in the circuits regarding the CAA. Part III surveys the sovereign immunity and clear statement jurisprudence of the modern Supreme Court justices (26) and attempts to determine how likely the current justices would find that the CAA waives federal sovereign immunity for punitive fines. Part IV concludes that the modern conservative court would most likely apply the strict clear statement rule, ignore legislative history, and find no waiver of sovereign immunity for punitive fines in the CAA. By extension, the Ninth Circuit was therefore correct in also applying the strict clear statement rule in DRA and holding that the CWA did not abrogate tribal sovereign immunity for injunctive relief, albeit with regrettable implications for the enforcement of environmental regulations.

2. BACKGROUND ON THE WAIVER OF SOVEREIGN IMMUNITY

   This Part explores how the Court's clear statement construction of the waiver of sovereign immunity evolved over time, ultimately leading to Dep't of Energy v. Ohio. It then analyzes the Court's reasoning in that case. Lastly, this Part describes the split in the circuits regarding the CAA. While some argue that strict construction of waiver of sovereign immunity protects the government's ability to function, including its treasury, (27) such values should not outweigh the value of environmental protection. The Supreme Court, however, as currently constituted, is not likely to agree, and will most likely construe the CAA as preserving federal sovereign immunity for punitive fines.

   1. The Origins of Sovereign Immunity and the Development of Modern Clear Statement Jurisprudence

      The doctrine of sovereign immunity comes from before the founding of the United States, from the English fiction that "the king can do no wrong." (28) State sovereign immunity appeared in the Constitution in the Eleventh Amendment (29) in 1794, and Chief Justice Marshall interpreted the Supremacy Clause (30) as implicitly granting federal sovereign immunity against state taxation in 1819. (31) The Supreme Court explicitly embraced the concept of federal sovereign immunity as early as 1821, (32) and over time has offered the rationale that sovereign immunity protects the public welfare by maintaining the function of government, including the public treasury. (33) It nevertheless remains unclear as to why interference with government operations should necessarily outweigh the rights of citizens or protection of the environment.

      The notion that Congress can waive sovereign immunity dates back to 1834, (34) and the Supreme Court began developing its strict construction of waiver of sovereign immunity in the ensuing decades. The Court first required waivers to be unequivocally expressed in 1868, (35) and soon after expanded the doctrine to require waivers to be construed narrowly. (36) The Court continued developing its strict

      Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.

      (citation omitted); see also Cent. Va. Cmty. Coll. v. Katz (Katz), 546 U.S. 356, 359 (2006) (finding that the Bankruptcy Clause abrogates state sovereign immunity).

      (30) U.S. CONST, art. VI, cl. 2.

      (31) McCulloch v. Maryland, 17 U.S. 316, 429-31 (1819).

      (32) Cohens v. Virginia, 19 U.S. 264, 411-12 (1821) ("The universally received opinion is, that no suit can be commenced or prosecuted against the United States.").

      (33) See, e.g., The Siren, 74 U.S. 152, 154 (1868) (stating that the public welfare would be harmed "if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government."); United States v. Lee, 106 U.S. 196, 206 (1882):

      [I]t would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money in his treasury. See also United States v. Shaw, 309 U.S. 495, 501 (1940) ("The reasons for this immunity are imbedded in our legal philosophy. They partake somewhat of dignity and decorum. somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government as distinct from its functionaries may operate undisturbed by the demands of litigants.").

      (34) See United States v. Clarke, 33 U.S. 436, 444 (1834) ("As the United States are not suable at common right, the party who institutes such suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it.").

      (35) See The Davis, 77 U.S. 15, 19 (1869) ("[N]o suit can be sustained in which the United States is made an original defendant... without some act of Congress expressly authorizing it to be done.").

      (36) See, e.g., Schillinger v. United States, 155 U.S. 163, 166 (1894) ("Beyond the letter of such consent, the courts may not go, no matter how beneficial they may deem...