A Critique of the Federal Facilities Compliance Act of 1992
By Andrea Gross
INTRODUCTION
Federal facilities have blatantly disregarded environmental laws such as the Resource Conservation and Recovery Act (RCRA). Congress, in response, overwhelmingly passed the Federal Facilities Compliance Act of 1992 (FFCA or Compliance Act). The FFCA authorizes states to impose civil fines on federal facilities for violations of RCRA by waiving federal facilities' sovereign immunity. It represents a partial abdication by Congress of federal responsibility for federal compliance with federally mandated environmental standards. Supporters in Congress apparently believe that federal agencies are so unresponsive to the requirements of existing federal environmental laws that the federal government alone cannot reign them in.
This Note questions whether Congress took the best approach to the federal non-compliance problem in allowing states to impose civil sanctions on federal agencies. First, this Note will give a brief overview of RCRA, its application to federal agencies and the magnitude of federal agency non-compliance. Second, it examines the U.S. Supreme Court's narrow interpretations of statutes relating to waivers of federal agency sovereign immunity for state-imposed sanctions, and it suggests that the FFCA can be understood in part as Congress' attempt to overturn the Supreme Court's rulings that federal facilities are immune from state civil penalties under RCRA. Third, this Note suggests that sovereign immunity has not been the reason for federal non-compliance, but that technological, institutional and budgetary constraints prevent federal agencies from fully complying with RCRA. Fourth, several costs are outlined that may result from the FFCA, including the possibilities of state abuse of fines, increased federal agency incentives for litigation, and a change in the focus of federal environmental funding caused by actions of the states. This Note concludes that the FFCA misses the point and may increase federal agency costs due to state civil fines, while yielding very small marginal increases in RCRA compliance.
Federal facilities have blatantly disregarded environmental laws such as the Resource Conservation and Recovery Act (RCRA). Congress, in response, overwhelmingly passed the Federal Facilities Compliance Act of 1992 (FFCA or Compliance Act). The FFCA authorizes states to impose civil fines on federal facilities for violations of RCRA by waiving federal facilities' sovereign immunity. It represents a partial abdication by Congress of federal responsibility for federal compliance with federally mandated environmental standards. Supporters in Congress apparently believe that federal agencies are so unresponsive to the requirements of existing federal environmental laws that the federal government alone cannot reign them in.
This Note questions whether Congress took the best approach to the federal non-compliance problem in allowing states to impose civil sanctions on federal agencies. First, this Note will give a brief overview of RCRA, its application to federal agencies and the magnitude of federal agency non-compliance. Second, it examines the U.S. Supreme Court's narrow interpretations of statutes relating to waivers of federal agency sovereign immunity for state-imposed sanctions, and it suggests that the FFCA can be understood in part as Congress' attempt to overturn the Supreme Court's rulings that federal facilities are immune from state civil penalties under RCRA. Third, this Note suggests that sovereign immunity has not been the reason for federal non-compliance, but that technological, institutional and budgetary constraints prevent federal agencies from fully complying with RCRA. Fourth, several costs are outlined that may result from the FFCA, including the possibilities of state abuse of fines, increased federal agency incentives for litigation, and a change in the focus of federal environmental funding caused by actions of the states. This Note concludes that the FFCA misses the point and may increase federal agency costs due to state civil fines, while yielding very small marginal increases in RCRA compliance.
