Reforming Environmental Enforcement: Lessons from Twenty Years of Waiving Federal Immunity to State Regulation
By Kenneth M. Murchison
INTRODUCTION
The federal government's impact on the environment is not altogether beneficent. Although Congress is the source of many of the most important regulations protecting the environment, federal agencies are often major polluters. Thus, federal compliance is often essential for a state to realize its environmental goals, and states have frequently sought to enforce their environmental statutes against the federal government.
For more than two decades, Congress has subjected the federal government to the requirements of most state environmental laws. The congressional directive has not, however, eliminated controversy over the obligations of federal agencies. In the mid-1970s, agencies persuaded the Supreme Court to limit their compliance duty to the substantive requirements of state laws. Congress quickly reversed the judicial exemption from the procedural aspects of state law, but a new set of cases has again placed the scope of the revised environmental waivers in doubt. The new decisions have focused on three areas: whether the compliance obligation covers all provisions of state law, whether federal agencies have to pay all charges levied on other polluters, and whether the agencies are subject to the sanctions states impose on those who violate pollution control laws.
The environmental waivers also have significance that extends beyond specific environmental problems. Methodologically, the evolution of the waivers offers a specific example from which one can construct a more general approach for construing environmental statutes. In addition, the history of the statutory waivers highlights more general issues regarding statutory reforms directed at environmental problems.
The introductory section of this Article summarizes the statutory framework and the judicial decisions that have set the framework for the contemporary disputes. The Article then describes the current conflicts over the meaning of the existing waivers and offers suggestions for resolving them by addressing both legislative revision and judicial construction of existing statutes. Having examined the specific problems in detail, the Article then explores the more general significance of the waiver issue.
The federal government's impact on the environment is not altogether beneficent. Although Congress is the source of many of the most important regulations protecting the environment, federal agencies are often major polluters. Thus, federal compliance is often essential for a state to realize its environmental goals, and states have frequently sought to enforce their environmental statutes against the federal government.
For more than two decades, Congress has subjected the federal government to the requirements of most state environmental laws. The congressional directive has not, however, eliminated controversy over the obligations of federal agencies. In the mid-1970s, agencies persuaded the Supreme Court to limit their compliance duty to the substantive requirements of state laws. Congress quickly reversed the judicial exemption from the procedural aspects of state law, but a new set of cases has again placed the scope of the revised environmental waivers in doubt. The new decisions have focused on three areas: whether the compliance obligation covers all provisions of state law, whether federal agencies have to pay all charges levied on other polluters, and whether the agencies are subject to the sanctions states impose on those who violate pollution control laws.
The environmental waivers also have significance that extends beyond specific environmental problems. Methodologically, the evolution of the waivers offers a specific example from which one can construct a more general approach for construing environmental statutes. In addition, the history of the statutory waivers highlights more general issues regarding statutory reforms directed at environmental problems.
The introductory section of this Article summarizes the statutory framework and the judicial decisions that have set the framework for the contemporary disputes. The Article then describes the current conflicts over the meaning of the existing waivers and offers suggestions for resolving them by addressing both legislative revision and judicial construction of existing statutes. Having examined the specific problems in detail, the Article then explores the more general significance of the waiver issue.
