An inapt fiction: the use of the Ex parte Young doctrine for environmental citizen suits against states after Seminole Tribe.

• Author: Flora, Courtney E.
• Position: 1996 Ninth Circuit Environmental Review

1. INTRODUCTION

   Seminole Tribe of Florida v. Florida,(1) the Supreme Court's latest effort to explicate the constitutional limits on federal power, resulted in an opinion diluted by ambiguity and dissent.(2) The majority held that Congress lacks power to abrogate state sovereign immunity in statutes enacted under the Indian Commerce Clause,(3) specifically, the Indian Gaming and Regulatory Act (IGRA).(4) Seminole Tribe expressly overruled Pennsylvania v. Union Gas Co.,(5) in which the Supreme Court had permitted a citizen suit against the state for cleanup contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(6) Union Gas stood for the proposition that while states are presumptively immune from suit by virtue of the Eleventh Amendment, the presumption can be overcome by Congress' clear expression of intent in the statute.(7) However, because this contention was voiced in a plurality opinion and because Chief Justice Rehnquist, as well as Justices O'Connor, Scalia, and Kennedy dissented,(8) Union Gas was an unstable precedent, as evidenced by Seminole Tribe.

   Seminole Tribe has two distinct aspects. First, the Court prohibited Congress from abrogating state immunity under the Indian Commerce Clause.(9) Seminole Tribe left untouched the well-settled notion that Congress can abrogate state immunity when enacting legislation pursuant to the Fourteenth Amendment.(10) Second, the Supreme Court found that because the IGRA contained intricate remedial procedures, the Ex parte Young doctrine was inapplicable in the Tribe's suit against the state of Florida.(11) In an attempt to quell environmental enforcement concerns raised by this decision, Justice Rehnquist included a footnote in his majority opinion indicating that this decision would not affect the use of Ex parte Young in connection with other statutes with limited remedial schemes enacted under the Commerce Clause such as the Clean Water Act-the environmental statute most commonly litigated by citizens.(12) Despite Rehnquist's palliation, the implications of Seminole Tribe on citizen suit enforcement of statutes enacted under the Commerce Clause are not perfectly clear. What is clear is that states are again immune from suit by individuals in federal court when the claim does not arise under the Fourteenth Amendment, but state action is not immune by suing a state official, a citizen can enjoin state action which is violative of federal law.

   In September 1998, the Ninth Circuit applied the first aspect of the Seminole Tribe holding to a suit brought by the Natural Resources Defense Council (NRDC) against the California Department of transportation (Caltrans), and its Director, James Van Loben Sels, for failing to control polluted stormwater runoff from roadways and maintenance yards in Southern California as required by Caltrans' state Clean Water Act (CWA) permit.(13) Because of Eleventh Amendment sovereign immunity constraints posed by the Seminole Tribe holding that Congress could not abrogate state immunity pursuant to Commerce Clause statutes,(14) NRDC dropped the claim against Caltrans, an "arm of the state."(15) However, the Ninth Circuit took Justice Rehnquist's Seminole Tribe footnote to heart and allowed NRDC's claim against Van Loben Sels for prospective injunctive relief to advance under Ex parte Young.(16)

   Caltrans is significant because it is the first Ninth Circuit decision applying the Ex parte Young doctrine after Seminole Tribe. Caltrans used the doctrine to circumvent state immunity pursuant to a federal statute which did not directly affect individual rights of the plaintiffs. In Caltrans, Judges O'Scannlain and Kleinfeld exhibited their skepticism regarding this development in a concurring opinion, but agreed that the Supreme Court had advocated this result in Seminole [tribe. Judges O'scannlain and Kleinfeld expressed concern about the "persistent erosion of the Eleventh Amendment by expanding judicial exceptions within this circuit,"(17) and noted that the Supreme Court had granted certiorari in another Ninth Circuit case, Coeur d'Alene Tribe v. Idaho,(18) which could clarify the Supreme Court's view on both sovereign immunity and the Ex parte Young issue. In Coeur d'Alene, and its predecessor, Almond Hill School v. U.S. Dep't of Agriculture,(19) the Ninth Circuit allowed private plaintiffs to sue state officials for violating federal law. Although both cases loosely characterized the Ex parte Young doctrine as applying to any situation where a state official violates federal law, the cases had significant constitutional civil rights aspects as well.(20) Caltrans broadened the scope of Ex parte Young by relying on this imprecise characterization of Ex parte Young as applicable to any federal statute to sanction a citizen suit against an official in the absence of a constitutional claim. The Ninth Circuit undoubtedly gained confidence to expand the doctrine from Justice Rehnquist's Seminole Tribe footnote.(21)

   This Chapter will assess the differing interpretations of the Eleventh Amendment, the inception and evolution of the Ex parte, Young doctrine, and the appropriateness of the Seminole Tribe decision with respect to both of these aspects in citizen suits seeking to enforce environmental regulations. Part II provides a history of Eleventh Amendment sovereign immunity and current theories about the meaning of the Amendment, including those advanced by the Supreme Court in Seminole Tribe. Part III analyzes the origin of the Ex parte Young doctrine in the Supreme Court and its expansion in the Ninth Circuit. Part IV of this Chapter concludes that while courts are currently accepting Ex parte Young as a viable method for enforcing environmental statutes in federal courts, the Supreme Court should reexamine the Seminole Tribe decision in light of the more tenable Eleventh Amendment reasoning in the decision's dissenting opinions, and additionally, restore the Ex parte Young doctrine to constitutional violations.

2. The History of the Eleventh Amendment

   Though Eleventh Amendment scholarship has evolved into "little more than a hodgepodge of confusing and intellectually indefensible judge-made law,"(22) it was conceived as a simple response to an unusual circumstance. In the aftermath of the Revolutionary War, the Supreme Court allowed a breach of contract suit by a South Carolina citizen against the state of Georgia in Chisholm v. Georgia.(23) The Supreme Court rejected Georgia's contention that an unconsenting state was immune to a suit brought by an out-of-state citizen in federal court, holding that the clear language of Article III of the Constitution(24) gave the Court original jurisdiction.(25) Public outrage (the extent of which is not entirely clear)(26) over this decision instigated the enactment of the Eleventh Amendment.(27) The Eleventh Amendment states, "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."(28) Thus, sovereign immunity in federal court, at least with respect to out-of-state citizens, became a permanent fixture of the Constitution.(29)

   Though textually the Amendment does not appear to address suits by citizens against their own states, the Supreme Court, in Hans v. Louisiana,(30) held otherwise. In Hans, a Louisiana citizen sued the state of Louisiana in federal court for a violation of the Contracts Clause, and the Supreme Court barred the suit because in its view, the Eleventh Amendment prohibited in-state resident suits against states in federal court as well as suits by citizens of other states.(31) This broad restriction is currently the law, though it is widely criticized by scholars(32) and judges.(33) The Court did not explain whether the rationale for the Hans decision relied on principles of common law sovereignty or what the Court saw as a constitutional limitation on federal court subject matter jurisdiction.

   1. The Three Primary Eleventh Amendment Theories

      Scholars, historians, and courts have grappled with several interpretations of the Eleventh Amendment since its formulation and reinterpretation by the Hans decision. There are currently three primary Eleventh Amendment theories which differ considerably in defining the scope of state immunity in federal court.(34) The first theory is that the Constitution itself immunizes states from all citizen suits.(35) This broad construction of state sovereignty is explicitly recognized in the Eleventh Amendment only with respect to out-of-state citizens, but advocates of this view cite the Hans decision as including citizens of the same state in the prohibition from suit.(36) This first theory, "accords great importance to sovereign immunity and federalism, but less weight to ensuring compliance with the Constitution."(37) Chief Justice Rehnquist, as well as Justices O'Connor, Scalia, Kennedy, and Thomas adhere to this view, as evidenced by the Seminole Tribe majority opinion.(38)

      The second theory views state sovereignty as a common law right that existed before ratification of the Constitution.(39) In Chisholm, the Court held that Article m of the Constitution permits states to be sued by citizens of other states, and thus the Eleventh Amendment was needed to reinstate the common law immunity that states originally possessed with respect to out-of-state citizens.(40) According to this theory, the Eleventh Amendment creates a constitutional bar to suits brought by out-of-state citizens, even if the suit is based on a federal question.(41) Suits brought by in-state citizens are precluded only by common law immunity. Therefore, a sovereign can waive its immunity and consent to be sued by its own citizens, or this common law immunity can be overridden by statute.(42) Scholars contend that the Amendment is directed at...