Another Victory in the Unwinnahle War Over Civil Penalties: Maine v. Departmt sf the Navy

• Author: Lieutenant Commander Marc G. Laverdiere
• Pages: 04

1. Introduction

   This article examines whether the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)l waives federal sovereim immunity for civil penalties imposed for failing to comply with state hazardous wmte and substance clean up iaws.2 This article reviews the CERCI" statutory text and legislative history in light of Maine v. Department ofNayavy,3 a recent decision from the United States Court of Appeals for the First Circuit (First Circuit Court of Appeals), which held that the CERCLA does not waive mverei@ immunity for state imposed punitive civil penalties. This article also considers Con5ess's response to judicial deci. sions limiting the scape of federal waivers of sovereign immunity. Finally, this article asseses the impact of Maim u. Department of Navy an future state efforts to enforce federal compliance with "mini-superfund" laws.

   n. Background

   Federal facilities are generating a @eat deal of hazardous

   waste,4 allegedly ignoring toxic waste clean up laws, and saddling states with a greater environmental clean up burden.5 Consequently, many states have responded with a campaign to compel federal campliance using, among other things, what one commentator described as "a major economic mechanism . . , to encourage federal facilities

   Id

   not to pollute and to clean up"-that is, civil penalties.6 These federal facilrties generally have not had to capitulate to state imposed civil penalties because of the unwilhngness of many federal courts to find the requisite waivers of sovereign immunity under federal environmental laws.' The federal government achieved its most significant victory to date in Department o f E w g y v. Okia,S in which the United States Supreme Court held that neither the Clean Water Act (CWA) nor the Resource Conservation and Recovery Act (RCRA) waived federal sovereign immunity for State imposed "punitive" civil penalties.0

   The battle over state unposed civil penalties recently shlfted to a new front. In Maine v. Department of Natq. a cme of first impression, the Fint Circuit Court of Appeals held that section lZO(aX4) of the CERCLA'O fails to wave sovereign immunity for the imposition of punitive civil penalties under Maine's hazardous waste law." Maine brought suit claiming that the Navy's shipyard in Kittery, Maine, had not complied with the state's federally approved hazardous waste law.12 The Navy eventually agreed to comply, but refused to pay civil penalties assessed by the state far past noncam~1iance.l~

   On motion for summary judmnent, the federal distnct

   'See, e y., Sierra Club Y Lupn. 072 F2d 312 (10th Cs 1982) ("0 stale unposed penalfres under Clean Wafer Aef], Mnzcnfelf Y Department of the W Farce. 003 F2d 1293 (10th Ca 10801 (no atate unposed penalties under Repaurce Conservation and Recovery Act]. Lnited States v State of Wmhiwan, 872 F.2d 874 (0th Clr 1088) (noitate unwsed penalties under Resource Conservation and Reeovely Act), bul Q#e

   Alabama ex re1 Gmddiek Y Vetems Admmmtrafmn. 648 F Supp 1208 (M D Ala 19861 (Clean h9rr Act wenaltles uoheldl.

   8112s Ct 1627(1002)81d at 1637-38 "Punlflve" penalties are impoed &5 purushmeot far vlalatlng a statutory provrsmn, and not a court order. "Coercive" penalflea BTe unposed Lo eniorce~arderortheproceiofeourt.L~j~n.972F2dat3ll

   1042u.s c 5062qan4)(188s) ~hv.seefionrratelssfouowsState Ian8 concerns removd and remedlafmn aeflon. ineludmp. rlale

   appllcable to lachfm whichare not owned 01 operated b i any aueh department agency, or lnstrumenfallty~~Mavlev.DepartmenrofZla~y.873E2d

   1007, IOll[lstCir 10821

   ME REI STAT Avh fit 38, $5 1SOl-131O(k] (West 1888 & Supp 18801 (a federallyaufhoraedhazardourwarrelawoperaringm~euoftheRCRA

   See42 U S C

   5 6826 (IOSSl Maine unposed the c ~ w l penalties on the Naw under the state's hwaidoUPwe3le law, n~faifale mini-super7undlaw

   191" 1886, Marne onanally brought suit y1 Yorh County Supenor Court seekingM order re~uinng the United Stares Navy among other fhingJ, fa comply rnh

   court aneed with Maine that the RCRA waived sovereign immunity for fines and penalties imposed under Maine's hazardous waste iaw.14 On appeal, the First Circuit Court of Appeals quickly reversed the federal distnct court, citingDepartmcnzt ofEwgrv. Ohio.'6 The circuit court then addressed Maine's new assertion that the C,ERCLA's waiver of sovereign immunity-that subjects federal facilities to "state laws regarding enforcement"-authorizes assessment of civil penalties.15 In rejecting Maine's contention, the circult court pointed to the CERCLA's failure to distinguish between prospective and retrospective penalties. The absence of any clear mechanism for punishing past violations convinced the circuit court that section lZO(a.14) of the CERCLA does not contain an adequately clear waiver of sovereign immunity.''

   Ill. Federal Supremacy and Sovereign Immunity

   A Conslitufional Background

   Under the federal supremacy doctrine, the laws of the United States made pursuant to the United States Constitution are the supreme law of the land, and "enjoy legal superiority over any confhcting provision of a state constitution or iaw."18 As Chief Justice Marshall explained in McCulloch v. Maryland, "The government of the Union, though ilmited in its powers, is supreme within its sphere of action."'Q

   B. Case Law Standard

   The sovere~g~~immunity of the United States government is

   founded on the supremacy elause.20 Any waiver of sovereign immu- Mue's hamidous wmfe law and to p8y EivU penaltler far past vlol~Liolls from lS8l faward. The Nary removed the mfmn LO federal court Eventually the Naiy a p e d fa comply with state regulaflons, but refused m pay flnes for past noneampllance and certain ather fees assessed. See Mame Y Depanmenf of Nary, 702 F. Supp 322, 330, 331-32 (D Me 1888) FoUawmg the federal dlstnft coun's h g m favor of Mame, the panres enlered mto a consent decree The Nary was dowed to appeal the dlsfnct co~n'edecision,butilitloifif~edLopaycivilWnaltiesta~gS887.2WPndfeer ratallmgS81,862 SseMaal~u.DBpartmtqiNavy, 873F.2datlWS.le.U~inea.~artmanlqiN~~~,

   702F Svpp at330

   nity must, according to the Supreme Court, be "clear and unam-biguous" in its statutory context.21 Courts applyins this standard have generated various rules for interpreting waivers of sovereign immunity, which were summarized recently in Siena Club ZI. L7Jjan?2 as foilows:

   The United States, as sovereign, is immune from suit in the absence of its consent. Library of Congress v. Shau, 478 US. 310, 315, . . . (1986). "[A] waiver of the traditional soverem -unity 'cannot be implied but must be unequivocally expressed"' by Congess. United Stales v.?!&an, 424U.S 392,399,. . . (1976)(quating UnitedStates u. King, 395 U.S. 1, . . . (1969)); See Mitmjelt 8. Wart-?nent of Air Force, 903 E2d 1293, 1294-95 (10th Cir. 1990). A court must strictly construe a waiver in favor of the sovereien and mav not extend it bevond what the language requ11e6. RzLekekhaus 0. Sierra Club, 463 U.S 680, 686,

   . . . (1983).23

   These rules have been applied strictly when states have sought to impose penalties that would impact the public fisc.24

   4. Statutory Construction

   A. The CERCLA Generally

   Congress enacted the CERCLA in 198026 to remedy the inadequacies of "partly redundant, partly inadequate federal hazardous substances clean up and compensation iaws."26 Ib that end, the CERCLA provides generally for removal of hazardous substances and remediation by the government or responsible parties of sites at which these substances are found;z' inclusion of the "Superfund" to pay for clean up of contaminated sites;28 and authority for courts to

   hold responsible parties Liable for clean up costs and natural resource damages.28

   E. States andFederalFaeilities

   Like many environmental statutes, the CERCLA does not preempt states from establishing additional liability or requirements regarding the release and clean up of hazardous substances.30 Many states have enacted hazardous clean up-or mini-superfund-iaws to deal with contaminated sites within their borders.3'

   Although states were free to enact their own hazardous sub. stance clean up laws, federal facilities remained immune to the states' requirements until the enactment of the Superfund...