Academic journal article Environmental Law

Federal Sovereign Immunity and Clean Water: A Supreme Misstep

Academic journal article Environmental Law

Federal Sovereign Immunity and Clean Water: A Supreme Misstep

Article excerpt

I. 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.

II. 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. …

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