Natural Resources Damages: Temporary Sanctuary for Federal Sovereign Immunity
By Marc G. Laverdiere
INTRODUCTION
Federal facilities, including those run by the Department of Defense (DOD), have long been responsible for discharging hazardous substances and oil into the environment. Many of these substances are the same as those found at major industrial chemical facilities. These discharges have led to accusations that DOD facilities have been carrying on “a chemical war at home” against this nation's natural resources.
Oil spills and other hazardous substance releases can have extremely deleterious consequences for surrounding natural resources. For example, an oil spill in San Francisco Harbor resulted in eleven million dollars worth of natural resource damages in 1989. In response, federal and state governments have made the reclamation of injured natural resources a significant objective of their environmental correction efforts. To underwrite the cost of these efforts, the parties responsible for injuring natural resources are held liable for damages.
Natural resource damages are typically used to recover for environmental injuries where “the cleanup removes the contamination but leaves the ecosystem unrestored.” This may occur when wildlife habitats are destroyed, animal populations are lowered, or plant life and diversity are reduced below precontamination levels.
Increased opportunities to recover natural resource damages exist primarily because of three federal statutes passed in the wake of contemporary environmental tragedies: the Federal Water Pollution Control Act (commonly known as the Clean Water Act (CWA)), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act of 1990 (OPA). These statutes provide for the recovery of costs for replacing, restoring and assessing damages to natural resources that are injured, lost or destroyed by discharges of oil (CWA/OPA) or other hazardous substances (CWA/CERCLA).
These federal laws contemplate that certain natural resources belong to the United States and others to the states. For example, under CERCLA, liability for damaging these resources is “to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State.” The Federal Government and individual states appoint natural resource trustees who are required to recover damages for injuries to their respective natural resources. Where natural resources exist within overlapping jurisdictions, trustees from both the state and federal governments are supposed to coordinate their efforts.
The language of the statutes, however, fails to make clear whether natural resources located on federal installations belong to the state or federal entity. Thus, the potential exists for future legal conflict between the states and federal agencies. Exacerbating this potential of federal-state discontent is congressional unwillingness to preempt more stringent state laws. States have taken advantage of this opportunity by enacting an assortment of laws “establishing liability for natural resource damages.” Among the parties against whom these laws have been invoked are federal agencies, such as the DOD.
Given the novelty of state assessed natural resource damages against federal agencies, many issues relevant to federal liability are still unresolved. This is particularly true with regard to the concept of sovereign immunity. Although sovereign immunity has fallen from grace, its vestiges have endured. Therefore it is likely that sovereign immunity will continue as the federal government's first line of defense.
The doctrine of sovereign immunity is a “judge-made” rule founded on the outdated notion that the “king can do no wrong.” There is little opposition, outside of the federal government, to the belief that our system of democracy views this notion as anathema. As a result, strict judicial interpretation of federal waivers of sovereign immunity has not met with universal approval. Nevertheless, the Supreme Court continues to require a “clear and unambiguous” waiver of sovereign immunity in order to subject the federal government to the requirements and penalties prescribed under federal and state law.
State laws authorizing the recovery of natural resource damages, therefore, are enforceable against federal facilities only to the extent that Congress has clearly and unequivocally waived sovereign immunity. Since state laws imposing liability for natural resource damages are typically predicated on CERCLA, CWA, or OPA, it is with these acts that the states must commence their search for a waiver of sovereign immunity. However, these statutes do not provide the requisite unequivocal waiver currently required by the Supreme Court.
As budgets shrink and federal agencies are expected to do more with less, the general question of whether federal agencies are liable under state law for natural resource damages becomes a critical consideration in future federal agency planning. Accordingly, this Article addresses the background, purpose and applicability of the natural resource provisions of CWA, CERCLA and OPA, as well as the question of whether those statutes provide a clear and unequivocal waiver of federal sovereign immunity for state assessed natural resource damages. The Article will then address the Congressional reaction to judicial decisions limiting the scope of federal waivers of sovereign immunity, and the effect of recent amendments to the Resource Conservation Recovery Act (RCRA) and a pending amendment to the CWA on state claims against federal agencies for natural resource damages. Finally, this Article addresses the waiver of sovereign immunity under the Federal Tort Claims Act as a possible avenue for states to collect natural resource damages.
Federal facilities, including those run by the Department of Defense (DOD), have long been responsible for discharging hazardous substances and oil into the environment. Many of these substances are the same as those found at major industrial chemical facilities. These discharges have led to accusations that DOD facilities have been carrying on “a chemical war at home” against this nation's natural resources.
Oil spills and other hazardous substance releases can have extremely deleterious consequences for surrounding natural resources. For example, an oil spill in San Francisco Harbor resulted in eleven million dollars worth of natural resource damages in 1989. In response, federal and state governments have made the reclamation of injured natural resources a significant objective of their environmental correction efforts. To underwrite the cost of these efforts, the parties responsible for injuring natural resources are held liable for damages.
Natural resource damages are typically used to recover for environmental injuries where “the cleanup removes the contamination but leaves the ecosystem unrestored.” This may occur when wildlife habitats are destroyed, animal populations are lowered, or plant life and diversity are reduced below precontamination levels.
Increased opportunities to recover natural resource damages exist primarily because of three federal statutes passed in the wake of contemporary environmental tragedies: the Federal Water Pollution Control Act (commonly known as the Clean Water Act (CWA)), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Oil Pollution Act of 1990 (OPA). These statutes provide for the recovery of costs for replacing, restoring and assessing damages to natural resources that are injured, lost or destroyed by discharges of oil (CWA/OPA) or other hazardous substances (CWA/CERCLA).
These federal laws contemplate that certain natural resources belong to the United States and others to the states. For example, under CERCLA, liability for damaging these resources is “to the United States Government and to any State for natural resources within the State or belonging to, managed by, controlled by, or appertaining to such State.” The Federal Government and individual states appoint natural resource trustees who are required to recover damages for injuries to their respective natural resources. Where natural resources exist within overlapping jurisdictions, trustees from both the state and federal governments are supposed to coordinate their efforts.
The language of the statutes, however, fails to make clear whether natural resources located on federal installations belong to the state or federal entity. Thus, the potential exists for future legal conflict between the states and federal agencies. Exacerbating this potential of federal-state discontent is congressional unwillingness to preempt more stringent state laws. States have taken advantage of this opportunity by enacting an assortment of laws “establishing liability for natural resource damages.” Among the parties against whom these laws have been invoked are federal agencies, such as the DOD.
Given the novelty of state assessed natural resource damages against federal agencies, many issues relevant to federal liability are still unresolved. This is particularly true with regard to the concept of sovereign immunity. Although sovereign immunity has fallen from grace, its vestiges have endured. Therefore it is likely that sovereign immunity will continue as the federal government's first line of defense.
The doctrine of sovereign immunity is a “judge-made” rule founded on the outdated notion that the “king can do no wrong.” There is little opposition, outside of the federal government, to the belief that our system of democracy views this notion as anathema. As a result, strict judicial interpretation of federal waivers of sovereign immunity has not met with universal approval. Nevertheless, the Supreme Court continues to require a “clear and unambiguous” waiver of sovereign immunity in order to subject the federal government to the requirements and penalties prescribed under federal and state law.
State laws authorizing the recovery of natural resource damages, therefore, are enforceable against federal facilities only to the extent that Congress has clearly and unequivocally waived sovereign immunity. Since state laws imposing liability for natural resource damages are typically predicated on CERCLA, CWA, or OPA, it is with these acts that the states must commence their search for a waiver of sovereign immunity. However, these statutes do not provide the requisite unequivocal waiver currently required by the Supreme Court.
As budgets shrink and federal agencies are expected to do more with less, the general question of whether federal agencies are liable under state law for natural resource damages becomes a critical consideration in future federal agency planning. Accordingly, this Article addresses the background, purpose and applicability of the natural resource provisions of CWA, CERCLA and OPA, as well as the question of whether those statutes provide a clear and unequivocal waiver of federal sovereign immunity for state assessed natural resource damages. The Article will then address the Congressional reaction to judicial decisions limiting the scope of federal waivers of sovereign immunity, and the effect of recent amendments to the Resource Conservation Recovery Act (RCRA) and a pending amendment to the CWA on state claims against federal agencies for natural resource damages. Finally, this Article addresses the waiver of sovereign immunity under the Federal Tort Claims Act as a possible avenue for states to collect natural resource damages.
