Sovereign Immunity and Citizen Enforcement of Federal Environmental Laws: A Proposal for a New Synthesis
By Randall S. Abate and Carolyn H. Cogswell
INTRODUCTION
The common law doctrine of sovereign immunity is frequently used by courts to deny a right of action or remedy against the “sovereign” United States, unless such immunity is specifically waived. Judicial interpretation of waiver has fluctuated throughout the doctrine's history. The current trend favors a narrow interpretation, thereby precluding causes of action or remedies against the sovereign. Such restrictive interpretations, however, ultimately undermine the intent of some legislation by denying actions or remedies that are expressly authorized in the plain language of the statutes' waiver provisions. These interpretations have been criticized as “tortured discussion[s]” that use “ingenuity to create ambiguity.”
This article proposes that where a cause of action is available against the sovereign through an explicit waiver, the full range of remedies provided within the statutory scheme should be available for all suits against the sovereign, regardless of whether the government or private citizens initiate action. This position is particularly relevant to pollution control statutes insofar as the statutory language and legislative history of several federal environmental statutes reflect congressional intent to target the polluting activities of federal facilities, as well as private entities. To provide a framework for discussion, this article focuses primarily on case law that reads undue limitations into the citizen suit provisions of the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These narrow interpretations have precluded citizens from suing federal facilities for civil penalties, ignoring the explicit congressional intent to provide for such penalties.
The doctrine of sovereign immunity should, however, continue to limit the causes of action available against the sovereign to those explicitly enumerated within a given statutory scheme. This limitation ensures that the congressional intent embodied in the statutory scheme is fulfilled. Implied causes of action that are “piggybacked” onto express congressional waivers can undermine statutory objectives. To uphold congressional intent, courts must not imply a waiver unless Congress has explicitly provided one.
For example, the Columbia River Gorge National Scenic Area Act (Gorge Act or Act), a federal initiative aimed at protecting resources within the Columbia River Gorge in Oregon and Washington, presents a strong argument for a narrow interpretation of waiver. The District of Columbia Circuit and the Ninth Circuit Courts of Appeals have interpreted the citizen suit provision of the Gorge Act to exclude causes of action brought by landowners alleging a “taking” of their land. By enacting the Gorge Act, Congress explicitly intended to protect the scenic, natural, recreational, and cultural resources within the Gorge. To attain this objective, the Act's citizen suit provision prohibits takings claims against the implementing agency (the Columbia River Gorge Commission). A narrow construction of the sovereign immunity waiver in the Gorge Act's citizen suit provision avoids undermining the Act's objectives.When applied properly, the doctrine of sovereign immunity is a valuable mechanism that can secure this important and narrow construction.
Part II of this article discusses the origins of the sovereign immunity doctrine, its evolution in the American judicial system, and the varying rationales supporting its application. This section also details increased criticism of the doctrine as its application has moved progressively further from its original moorings.
Part III illustrates why this criticism is justified in the context of citizen suits seeking civil penalties from federal facilities under the CWA, RCRA, the CAA, and CERCLA. Part III argues that, once citizens have obtained standing against the federal government, injunctive relief and civil penalties should be available to citizens in order to further the goals of the statutes. This issue created a split in the circuits that was recently resolved in the controversial United States Department of Energy v. Ohio decision.12 Unfortunately, through a narrow construction of waiver, the Court held that civil penalties are not available under the citizen suit provisions of the CWA and RCRA. Part III also examines legislative history and policy arguments demonstrating that Ohio thwarted congressional intent.
Part IV analyzes how the doctrine of sovereign immunity has been appropriately applied to limit private causes of action under environmental statutes that provide other explicit means of enforcement. Allowing implied causes of action against an administrative body under such statutes is redundant and can undermine agency enforcement efforts. Instead, citizens should frame their suits within the boundaries of citizen suit provisions authorized by Congress. By recognizing only those causes of action against the sovereign that fall explicitly within a statute's provisions, citizen actions serve to enforce the specific purposes of the statute rather than to harass the agency or undermine the environmental protection goals of the legislation. Part IV first explores the foundations of this limitation on implied private causes of action and then analyzes the limitation in the context of the Gorge Act and recent judicial interpretations of its citizen suit provision. Part IV also illustrates the value of the sovereign immunity doctrine in this context, revealing that proposals for abolition of the doctrine are unjustified.
The common law doctrine of sovereign immunity is frequently used by courts to deny a right of action or remedy against the “sovereign” United States, unless such immunity is specifically waived. Judicial interpretation of waiver has fluctuated throughout the doctrine's history. The current trend favors a narrow interpretation, thereby precluding causes of action or remedies against the sovereign. Such restrictive interpretations, however, ultimately undermine the intent of some legislation by denying actions or remedies that are expressly authorized in the plain language of the statutes' waiver provisions. These interpretations have been criticized as “tortured discussion[s]” that use “ingenuity to create ambiguity.”
This article proposes that where a cause of action is available against the sovereign through an explicit waiver, the full range of remedies provided within the statutory scheme should be available for all suits against the sovereign, regardless of whether the government or private citizens initiate action. This position is particularly relevant to pollution control statutes insofar as the statutory language and legislative history of several federal environmental statutes reflect congressional intent to target the polluting activities of federal facilities, as well as private entities. To provide a framework for discussion, this article focuses primarily on case law that reads undue limitations into the citizen suit provisions of the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These narrow interpretations have precluded citizens from suing federal facilities for civil penalties, ignoring the explicit congressional intent to provide for such penalties.
The doctrine of sovereign immunity should, however, continue to limit the causes of action available against the sovereign to those explicitly enumerated within a given statutory scheme. This limitation ensures that the congressional intent embodied in the statutory scheme is fulfilled. Implied causes of action that are “piggybacked” onto express congressional waivers can undermine statutory objectives. To uphold congressional intent, courts must not imply a waiver unless Congress has explicitly provided one.
For example, the Columbia River Gorge National Scenic Area Act (Gorge Act or Act), a federal initiative aimed at protecting resources within the Columbia River Gorge in Oregon and Washington, presents a strong argument for a narrow interpretation of waiver. The District of Columbia Circuit and the Ninth Circuit Courts of Appeals have interpreted the citizen suit provision of the Gorge Act to exclude causes of action brought by landowners alleging a “taking” of their land. By enacting the Gorge Act, Congress explicitly intended to protect the scenic, natural, recreational, and cultural resources within the Gorge. To attain this objective, the Act's citizen suit provision prohibits takings claims against the implementing agency (the Columbia River Gorge Commission). A narrow construction of the sovereign immunity waiver in the Gorge Act's citizen suit provision avoids undermining the Act's objectives.When applied properly, the doctrine of sovereign immunity is a valuable mechanism that can secure this important and narrow construction.
Part II of this article discusses the origins of the sovereign immunity doctrine, its evolution in the American judicial system, and the varying rationales supporting its application. This section also details increased criticism of the doctrine as its application has moved progressively further from its original moorings.
Part III illustrates why this criticism is justified in the context of citizen suits seeking civil penalties from federal facilities under the CWA, RCRA, the CAA, and CERCLA. Part III argues that, once citizens have obtained standing against the federal government, injunctive relief and civil penalties should be available to citizens in order to further the goals of the statutes. This issue created a split in the circuits that was recently resolved in the controversial United States Department of Energy v. Ohio decision.12 Unfortunately, through a narrow construction of waiver, the Court held that civil penalties are not available under the citizen suit provisions of the CWA and RCRA. Part III also examines legislative history and policy arguments demonstrating that Ohio thwarted congressional intent.
Part IV analyzes how the doctrine of sovereign immunity has been appropriately applied to limit private causes of action under environmental statutes that provide other explicit means of enforcement. Allowing implied causes of action against an administrative body under such statutes is redundant and can undermine agency enforcement efforts. Instead, citizens should frame their suits within the boundaries of citizen suit provisions authorized by Congress. By recognizing only those causes of action against the sovereign that fall explicitly within a statute's provisions, citizen actions serve to enforce the specific purposes of the statute rather than to harass the agency or undermine the environmental protection goals of the legislation. Part IV first explores the foundations of this limitation on implied private causes of action and then analyzes the limitation in the context of the Gorge Act and recent judicial interpretations of its citizen suit provision. Part IV also illustrates the value of the sovereign immunity doctrine in this context, revealing that proposals for abolition of the doctrine are unjustified.