Federal sovereign immunity versus state environmental fines

Air Force Law Review, Spring, 2006 by Harry M. Hughes, Mitzi O. Weems

I.   INTRODUCTION
II.  BACKGROUND
     A. Fiscal Law Concerns
     B. History of Sovereign Immunity
III. OVERVIEW OF MAJOR ENVIRONMENTAL LEGISLATION
     A. Acts Not Subjecting Federal Facilities to State
        Fines
        1. Clean Water Act
        2. Comprehensive Environmental Response,
           Compensation and Liability Act
        3. Toxic Substances Control Act
        4. Emergency Planning and Community Right-to-Know
           Act
        5. Pollution Prevention Act
     B. Acts Subjecting Federal Facilities to State
        Fines
        1. Resource Conservation and Recovery Act
        2. Safe Drinking Water Act
        3. Toxic Substances Control Act: Lead-Based Paint
     C. Act Where State Fine Issue is Unsettled: Clean
        Air Act
IV.  CONCLUSION

I. INTRODUCTION

Over the past several decades, Congress has enacted numerous laws designed to protect human health and the environment. All major environmental statutes provide a mechanism for individual states to assume the primary responsibility for enforcing these laws and regulations. In order for a state to receive the delegation of authority to run a particular environmental program, the state must first enact adequate laws and regulations to satisfy the U.S. Environmental Protection Agency (EPA) that the state can properly enforce environmental standards as least as stringent as those imposed by federal law. "Cooperative federalism" is a system whereby the federal government establishes statutory minimum standards and procedural requirements and then the states enact implementation and enforcement programs subject to EPA approval and oversight. (1) The delegation of primary responsibilities to the states has led to a complex system of intertwining federal and state environmental statutes and regulations.

Congress has amended most federal environmental statutes several times over the years to improve upon or expand the original design of the environmental protection schemes. Congress has also amended environmental laws to clarify its intent in the face of contrary court opinions. (2) This is particularly true with regard to waivers of federal sovereign immunity. (3) Without a clear and unambiguous waiver of sovereign immunity, federal law prohibits agencies from expending funds to comply with state environmental laws and regulations. (4)

Federal facilities take a particularly staunch stance on this concept when it comes to the payment of state environmental fines and penalties. States are clearly responsible for the majority of environmental enforcement actions (5) and some argue that federal facilities are among the worst at environmental compliance. (6) One of the primary goals of environmental enforcement is deterrence. (7) Conceptually, the fear that they will be substantially fined if they are caught is a deterrent to violating environmental laws. It is not difficult to see the conflict between the states' responsibility to enforce environmental compliance and a federal facility's claim that it does not have to pay fines for particular environmental violations. (8)

States assert that, without the authority to impose monetary fines against federal facilities, they are powerless to ensure environmental compliance. Such claims imply that federal facilities will not comply with environmental laws absent the threat of a punitive fine. This implication is erroneous. Over the years, federal facilities have worked hard to correct violations cited in enforcement actions, and the vast majority of these had no fines associated with them. The availability of sovereign immunity as a defense against punitive fines only acts as a shield to the payment of the fine, not as a sword against complying with the underlying statute. The implication also ignores the fact that federal employees are still subject to criminal prosecution. (9)

This article addresses the current status of the ever-changing nature of the law regarding federal sovereign immunity as it relates to the payment of state-imposed environmental fines. (10) Prior to exploring the current status of the law in this area, the article provides background information regarding the doctrine of sovereign immunity. The review of the major environmental legislation is organized into three categories: those not subjecting federal facilities to state fines, those that do, and those where the issue is unsettled. Federal facilities are not subject to punitive state fines under the Clean Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Emergency Planning and Community Right-to-Know Act, and the Pollution Prevention Act. Federal facilities are subject to state fines for violations of hazardous waste regulations under the Resource Conservation and Recovery Act including its Underground Storage Tank provisions, the Safe Drinking Water Act, and the Toxic Substances Control Act's lead-based paint provisions.

Lastly, the authority for states to fine federal facilities under the Clean Air Act is in active litigation. After reviewing the current state of the law, it will become apparent that the trend is toward greater state authority. In that regard, another one of the great timbers in the sovereign immunity palisade will soon fall as federal facilities begin paying state fines for Clean Air Act violations.