Federal sovereign immunity and clean water: a Supreme misstep.

• Author: Heintz, Rebecca
• Position: Case Note

1. INTRODUCTION

   The sovereign immunity doctrine has been traced, perhaps incorrectly,(1) to the English concept of royal supremacy: "the king can do no wrong."(2) Despite never having royalty and being skeptical about federal power at its inception, the United States has retained the concept of sovereign immunity throughout its legal history.(3) Although the doctrine has suffered inconsistent and perhaps illogical treatment by the courts,(4) legal sovereign immunity lives on today.

   In its 1992 decision, United States Department of Energy v. Ohio(5) (DOE), the Supreme Court denied individual states the power to impose punitive civil fines against the United States for past violations of the Clean Water Act (CWA).(6) Although the precise consequences of this decision remain to be seen, the holding will certainly not assist states in enforcing their federally mandated water pollution laws. By the time DOE reached the Court, several circuit courts were split on the question of whether the federal government had waived its sovereign )immunity under the civil suit provisions(7) and federal facility(8) sections of the CWA.(9) One commentator argued that the CWA should be read to waive federal sovereign immunity for state civil fines mandated by the CWA on the basis of congressional intent and the Act's statutory construction.(10)

   The Supreme Court noted that federal facilities are twice as likely as private industrial facilities to violate the provisions of the CWA.(11) The federal facility at issue in DOE was a uranium processing plant that, the government conceded, had contaminated the air, water, and soil with radioactive materials and violated its state-issued permits.(12) Despite these violations, the Court held the state could not impose punitive civil fines for past violations, but the state could impose "coercive"(13) fines for future violations to bring the federal facility into compliance.(14) This holding substantially reduces the several states' power to bring federal facilities into compliance with various federally mandated water pollution control laws.(15)

   A fundamental premise of the majority decision is that a waiver of immunity by the Federal government must be "unequivocal"(16) and "construed strictly in favor of the sovereign."(17) The majority assumed that its premise was based on long-standing traditions of American judicial history. However, an analysis of the doctrine shows that the Court has been inconsistent and somewhat arbitrary in its application of the immunity doctrine, ignoring the doctrine's only logical purpose: to safeguard the day-to-day functions of government against undue interference.(18)

   Section I of this Note examines the roots of the sovereign immunity doctrine and its history of ambiguous treatment by the Supreme Court. Section II discusses sections of the Clean Water Act relevant to the DOE case and the unitary executive doctrine which prevents the Environmental Protection Agency (EPA) from forcing federal facilities to comply with environmental statutes. Section III explores the background of the DOE case and analyzes the Court's opinion. Section IV concludes that the Court's decision to imply waiver is inconsistent with the purpose of the Act and cannot be justified by the history of sovereign immunity. Finally, this Note urges quick congressional action to state clearly and unquestioningly the intent of waiver.

2. HISTORY OF THE SOVEREIGN IMMUNITY DOCTRINE

   The sovereign immunity doctrine dictates that the government cannot be sued without consent. The origin of sovereign immunity can be traced to English common law where the maxim "the king can do no wrong" has been considered by some to be the basis of the doctrine.(19) The doctrine did not mean, however, that subjects were completely without a remedy against the sovereign in England.(20)

   In feudal England each lord had a court where he was the judge.(21) A lord could not be sued in his own court without his consent.(22) However, subjects still had a remedy because a lord could be sued in any court higher than his own.(23) In the same sense, the King had his own court, but he could not be sued without consent since there was no higher court. However, if the King did not consent to suit, judicial review remained available. (24) Although the American courts have adopted the sovereign immunity doctrine, they have not adopted the elaborate procedures that developed in England to soften the impact of sovereign immunity.

   In the United States, the doctrine has been invoked completely through judicial action; there is nothing in the Constitution declaring the federal government immune from suit by its citizens. Whether the Framers intended the government to enjoy sovereign immunity is unclear.(25) According to Hart and Wechsler, "The doctrine developed largely through dicta, reflecting evidently a general professional opinion."(26)

   Supreme Court decisions reflect ambiguity surrounding sovereign immunity and its sources, boundaries, and policy goals. For example, there is disagreement among the Supreme Court opinions about the fundamental issue of the role that sovereign immunity plays in the Court's jurisdiction. While it is generally held that when the defendant is the United States the Court lacks subject matter jurisdiction, some opinions have implied that sovereign immunity is a defense on the merits.(27)

   Another source of confusion is Justice Marshall's often cited dicta in Cohens v. Virginia,(28) that the Court has deemed the first explicit declaration of sovereign immunity.(29) Justice Marshall wrote, "The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the United States does not authorize such suits."(30) It is likely that Justice Marshall was speaking in the limited context where a statutory grant of jurisdiction is absent.(31) Later in Cohens, Justice Marshall wrote, "We think a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case.(32)

   In one of the famous early sovereign immunity cases Chisholm v. Georgia,(33) the citizens of South Carolina sued Georgia for repayment of debts held in bond. The Court allowed the suit because it determined that suits between a state and citizens of another state were a constitutionally declared group of cases to which Article III powers extended.(34) The Chisholm decision caused alarm in the debt-ridden southern states(35) and was largely responsible for the ratification of the Eleventh Amendment.(36) Of greater significance to the doctrine of sovereign immunity, Chisholm created the principle that governmental immunity is subject to judicial definition.(37)

   Much has been written about another seminal sovereign immunity case, United States v. Lee,(38) primarily because the Court admitted that sovereign immunity is a baffling doctrine that might not make sense in the American scheme of jurisprudence.(39) And in 1939, the Supreme Court decided Keifer & Keifer v. Reconstruction Finance Corp.,(40) which began a series of opinions by the Court reflecting a renewed uncertainty about the doctrine.(41) However, "the translation of these misgivings into an intelligible policy of interpretation in actions against the United States has been halting and irregular."(42)

   In Keifer, the Court found that a corporation created by Congress was not immune from suit, despite the absence of explicit language in the enabling legislation which waived immunity.(43) The Court held that although Congress had included a to-sue-and-be-sued clause in many other corporate charters, its failure to do so in this case did not imply an intent to shield the company from suit.(44) The Court noted that Congress was not required to use a "ritualistic formula to waive immunity.(45)

   The courts have relied on various devices to circumvent the harshness of sovereign immunity. Sometimes they have relied on the "bookkeeping notion of segregation" to find the doctrine inapplicable.(46) This notion is centered on whether the funds sought in a suit against a government official were set apart from the general treasury funds, and therefore considered to be in the official's possession.(47) If the funds are considered to be in the officer's possession sovereign immunity may not apply; if they are considered to be part of the government's general funds then the doctrine does apply.(48) This fiction illustrates the courts' inability to completely accept or completely disregard the immunity doctrine.(49)

   The courts have also attempted to dissipate some of the unfairness of the sovereign immunity doctrine by use of the infamous "officer suit."(50) In an officer suit, sovereign immunity does not apply when the United States is not named on the face of the complaint. Instead, the complaint names a government officer without reference to her title or her official capacity.(51)

   Some commentators have argued that the Supreme Court rules concerning sovereign immunity were fictitious and could be explained by the Court's struggle to apply a very strict doctrine more fairly.(52) However, Professor Cramton has suggested that sovereign immunity did have recognizable contours until the 1949 decision of Larson v. Domestic and Foreign Commerce Corporation.(53) After Larson, the Supreme Court decisions dealing with sovereign immunity resulted in "confusion and a further strengthening of the immunity."(54)

   Due to the harshness of the doctrine, which is especially onerous in a nation which prides itself on freedom and justice,(55) Congress has explicitly revoked the federal government's immunity in a variety of contexts. For example, the Tucker Act(56) and the Federal Tort Claims Act(57) provide relief for contract and tort claims against the government. Ironically, the passage of the Tucker Act may have more firmly embedded the sovereign immunity doctrine in American jurisprudence by...