An inapt fiction: the use of the Ex parte Young doctrine for environmental citizen suits against states after Seminole Tribe.

I. INTRODUCTION

Seminole Tribe of Florida v. Florida,(1) the Supreme Court's latest effort to explicate the constitutional limits on federal power, resulted in an opinion diluted by ambiguity and dissent.(2) The majority held that Congress lacks power to abrogate state sovereign immunity in statutes enacted under the Indian Commerce Clause,(3) specifically, the Indian Gaming and Regulatory Act (IGRA).(4) Seminole Tribe expressly overruled Pennsylvania v. Union Gas Co.,(5) in which the Supreme Court had permitted a citizen suit against the state for cleanup contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).(6) Union Gas stood for the proposition that while states are presumptively immune from suit by virtue of the Eleventh Amendment, the presumption can be overcome by Congress' clear expression of intent in the statute.(7) However, because this contention was voiced in a plurality opinion and because Chief Justice Rehnquist, as well as Justices O'Connor, Scalia, and Kennedy dissented,(8) Union Gas was an unstable precedent, as evidenced by Seminole Tribe.

Seminole Tribe has two distinct aspects. First, the Court prohibited Congress from abrogating state immunity under the Indian Commerce Clause.(9) Seminole Tribe left untouched the well-settled notion that Congress can abrogate state immunity when enacting legislation pursuant to the Fourteenth Amendment.(10) Second, the Supreme Court found that because the IGRA contained intricate remedial procedures, the Ex parte Young doctrine was inapplicable in the Tribe's suit against the state of Florida.(11) In an attempt to quell environmental enforcement concerns raised by this decision, Justice Rehnquist included a footnote in his majority opinion indicating that this decision would not affect the use of Ex parte Young in connection with other statutes with limited remedial schemes enacted under the Commerce Clause such as the Clean Water Act-the environmental statute most commonly litigated by citizens.(12) Despite Rehnquist's palliation, the implications of Seminole Tribe on citizen suit enforcement of statutes enacted under the Commerce Clause are not perfectly clear. What is clear is that states are again immune from suit by individuals in federal court when the claim does not arise under the Fourteenth Amendment, but state action is not immune by suing a state official, a citizen can enjoin state action which is violative of federal law.

In September 1998, the Ninth Circuit applied the first aspect of the Seminole Tribe holding to a suit brought by the Natural Resources Defense Council (NRDC) against the California Department of transportation (Caltrans), and its Director, James Van Loben Sels, for failing to control polluted stormwater runoff from roadways and maintenance yards in Southern California as required by Caltrans' state Clean Water Act (CWA) permit.(13) Because of Eleventh Amendment sovereign immunity constraints posed by the Seminole Tribe holding that Congress could not abrogate state immunity pursuant to Commerce Clause statutes,(14) NRDC dropped the claim against Caltrans, an "arm of the state."(15) However, the Ninth Circuit took Justice Rehnquist's Seminole Tribe footnote to heart and allowed NRDC's claim against Van Loben Sels for prospective injunctive relief to advance under Ex parte Young.(16)

Caltrans is significant because it is the first Ninth Circuit decision applying the Ex parte Young doctrine after Seminole Tribe. Caltrans used the doctrine to circumvent state immunity pursuant to a federal statute which did not directly affect individual rights of the plaintiffs. In Caltrans, Judges O'Scannlain and Kleinfeld exhibited their skepticism regarding this development in a concurring opinion, but agreed that the Supreme Court had advocated this result in Seminole [tribe. Judges O'scannlain and Kleinfeld expressed concern about the "persistent erosion of the Eleventh Amendment by expanding judicial exceptions within this circuit,"(17) and noted that the Supreme Court had granted certiorari in another Ninth Circuit case, Coeur d'Alene Tribe v. Idaho,(18) which could clarify the Supreme Court's view on both sovereign immunity and the Ex parte Young issue. In Coeur d'Alene, and its predecessor, Almond Hill School v. U.S. Dep't of Agriculture,(19) the Ninth Circuit allowed private plaintiffs to sue state officials for violating federal law. Although both cases loosely characterized the Ex parte Young doctrine as applying to any situation where a state official violates federal law, the cases had significant constitutional civil rights aspects as well.(20) Caltrans broadened the scope of Ex parte Young by relying on this imprecise characterization of Ex parte Young as applicable to any federal statute to sanction a citizen suit against an official in the absence of a constitutional claim. The Ninth Circuit undoubtedly gained confidence to expand the doctrine from Justice Rehnquist's Seminole Tribe footnote.(21)

This Chapter will assess the differing interpretations of the Eleventh Amendment, the inception and evolution of the Ex parte, Young doctrine, and the appropriateness of the Seminole Tribe decision with respect to both of these aspects in citizen suits seeking to enforce environmental regulations. Part II provides a history of Eleventh Amendment sovereign immunity and current theories about the meaning of the Amendment, including those advanced by the Supreme Court in Seminole Tribe. Part III analyzes the origin of the Ex parte Young doctrine in the Supreme Court and its expansion in the Ninth Circuit. Part IV of this Chapter concludes that while courts are currently accepting Ex parte Young as a viable method for enforcing environmental statutes in federal courts, the Supreme Court should reexamine the Seminole Tribe decision in light of the more tenable Eleventh Amendment reasoning in the decision's dissenting opinions, and additionally, restore the Ex parte Young doctrine to constitutional violations.

II. The History of the Eleventh Amendment

Though Eleventh Amendment scholarship has evolved into "little more than a hodgepodge of confusing and intellectually indefensible judge-made law,"(22) it was conceived as a simple response to an unusual circumstance. In the aftermath of the Revolutionary War, the Supreme Court allowed a breach of contract suit by a South Carolina citizen against the state of Georgia in Chisholm v. Georgia.(23) The Supreme Court rejected Georgia's contention that an unconsenting state was immune to a suit brought by an out-of-state citizen in federal court, holding that the clear language of Article III of the Constitution(24) gave the Court original jurisdiction.(25) Public outrage (the extent of which is not entirely clear)(26) over this decision instigated the enactment of the Eleventh Amendment.(27) The Eleventh Amendment states, "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."(28) Thus, sovereign immunity in federal court, at least with respect to out-of-state citizens, became a permanent fixture of the Constitution.(29)

Though textually the Amendment does not appear to address suits by citizens against their own states, the Supreme Court, in Hans v. Louisiana,(30) held otherwise. In Hans, a Louisiana citizen sued the state of Louisiana in federal court for a violation of the Contracts Clause, and the Supreme Court barred the suit because in its view, the Eleventh Amendment prohibited in-state resident suits against states in federal court as well as suits by citizens of other states.(31) This broad restriction is currently the law, though it is widely criticized by scholars(32) and judges.(33) The Court did not explain whether the rationale for the Hans decision relied on principles of common law sovereignty or what the Court saw as a constitutional limitation on federal court subject matter jurisdiction.

A. The Three Primary Eleventh Amendment Theories

Scholars, historians, and courts have grappled with several interpretations of the Eleventh Amendment since its formulation and reinterpretation by the Hans decision. There are currently three primary Eleventh Amendment theories which differ considerably in defining the scope of state immunity in federal court.(34) The first theory is that the Constitution itself immunizes states from all citizen suits.(35) This broad construction of state sovereignty is explicitly recognized in the Eleventh Amendment only with respect to out-of-state citizens, but advocates of this view cite the Hans decision as including citizens of the same state in the prohibition from suit.(36) This first theory, "accords great importance to sovereign immunity and federalism, but less weight to ensuring compliance with the Constitution."(37) Chief Justice Rehnquist, as well as Justices O'Connor, Scalia, Kennedy, and Thomas adhere to this view, as evidenced by the Seminole Tribe majority opinion.(38)

The second theory views state sovereignty as a common law right that existed before ratification of the Constitution.(39) In Chisholm, the Court held that Article m of the Constitution permits states to be sued by citizens of other states, and thus the Eleventh Amendment was needed to reinstate the common law immunity that states originally possessed with respect to out-of-state citizens.(40) According to this theory, the Eleventh Amendment creates a constitutional bar to suits brought by out-of-state citizens, even if the suit is based on a federal question.(41) Suits brought by in-state citizens are precluded only by common law immunity. Therefore, a sovereign can waive its immunity and consent to be sued by its own citizens, or this common law immunity can be overridden by statute.(42) Scholars contend that the Amendment is directed at federal courts, not Congress, so Congress should be able to control state immunity as necessary.(43) Consequently, Congress has the ability to legislate statutes authorizing suits against a state by its own citizens because statutes can always override common law.(44)

A third theory treats the Eleventh Amendment as barring only diversity suits in federal court, not federal question suits brought by out-of-state citizens.(45) Under this view, which directly contradicts Hans, Article m of the Constitution permits subject matter jurisdiction based on either the existence of a federal claim or the identity of the parties. Article III, [sections] 2 authorizes federal question jurisdiction, and a later passage in Article III, [sections] 2 permits "[c]ontroversies ... between a State and Citizens of another State."(46) Proponents of this theory argue that the Eleventh Amendment specifically addressed this latter provision of Article III. Therefore the Eleventh Amendment restricts only diversity suits against state governments. This interpretation does not preclude suits based on federal questions, such as those involving federal statutes. This view, like the first, is jurisdictional in nature.(47) This theory would allow a citizen to sue her own state, or an out-of-state citizen to sue another state if the suit involves a federal question.

B. A Critique of the Supreme Court's Current Eleventh Amendment Theory

Pennsylvania v. Union Gas Co.(48) presented the Supreme Court with its first chance to state whether Congress had the power to abrogate state immunity, and concurrently, whether sovereign immunity is a constitutional mandate or a common law presumption. In that case, the Court correctly reasoned that because Congress may override common law with a statute, Congress should be able to legislatively abrogate state immunity.(49) This reasoning is in accord with the second theory described above. Union Gas was not, as the Supreme Court now asserts, "a solitary departure from established law"(50) because no settled law had been established. Far from being an anomaly in Supreme Court jurisprudence, the decision was the Court's first statement of the law of congressional abrogation under the Commerce Clause.(51) The Court took the opportunity to conclude that Congress does have the power to abrogate state immunity mainly because "the power to regulate interstate commerce would be incomplete without the authority to render states liable in damages."(52)

While this policy is indeed correct and relevant to the Court's decision, the Court erred in Union Gas by failing to present a principled Eleventh Amendment argument to ground its policy argument.(53) A much sharper argument for the Union Gas Court would have started with an examination of the Eleventh Amendment and a concession that it does not guarantee constitutional immunity to states. The Union Gas holding was overruled, not because of its policy or result, but because of its lack of rigorous Eleventh Amendment examination.(54) Nevertheless, Union Gas was the only Supreme Court case before Seminole Tribe to uphold congressional power to override state immunity.(55) Thus, since Seminole Tribe cannot be viewed as reinstating what was an understood principle of congressional inability to abrogate state immunity under the Commerce Clause, this rationale of the Seminole Tribe holding is misguided.

In Seminole Tribe, the majority of the Supreme Court chose the first of the above theories. However, in so doing, the Court overlooked the text of the Eleventh Amendment in favor of an antiquated notion of blanket state immunity from citizen suits.(56) Not only is the idea unsupported by the text and history of the Eleventh Amendment, it is also practically unworkable--especially when Congress enacts statutes envisioning states to be liable for violating federal law.(57) As Justice Souter argues in his Seminole Tribe dissent, the text of the Eleventh Amendment permits only the latter two of the above theories; either the Eleventh Amendment prohibits all suits brought by out-of-state citizens, or the Amendment prohibits only those suits based solely on diversity jurisdiction.(58) The idea that the Eleventh Amendment prohibits in-state citizens from suing a state based on a federal question is untenable.(59)

The majority supported their conclusion with reference to a "background principle of state sovereign immunity,"(60) the Hans decision, and the availability of the Ex parte Young doctrine.(61) Because these background principles of sovereign immunity are complex, and because constitutional scholars have written extensively on this subject,(62) it is necessary only to highlight the most significant of the criticisms concerning a historical basis for broad state immunity. John Gibbons describes the Eleventh Amendment as a "product of a unique set of political circumstances, . . .[which] reflects more the foreign policy concerns and political compromises of the Federalist era than it does any broad desire to constitutionalize a doctrine of state sovereign immunity."(63)

The Seminole Tribe majority assumed broad-based sovereign immunity was a fundamental aspect of colonial America.(64) Scholars who have researched this issue have discovered that the immunity of the British monarch was "nominal," and did not extend to government officers.(65) The monarch's immunity had "no real relevance to the accountability of the government to individuals."(66) In addition, by the eighteenth century, writs of suit against the monarch were issued routinely.(67) Gibbons points out that the English phrase most often associated with the principle of sovereign immunity--"the king can do no wrong"--is more accurately understood as "the king would do no wrong," for if he did, he would be subject to suit through a writ of right.(68) Significantly, Gibbons also notes that in reality, the eighteenth century King was so far removed from the daily lives of the citizenry that the power to sue him was practically irrelevant.(69) This stands in direct contrast to the role of states in the modern system; state involvement is pervasive in almost every imaginable context. Now more than ever before, states need to be responsive to citizen complaints to render the federalist system workable.

The Seminole Tribe majority also relied on the Hans decision for support of their Eleventh Amendment conclusions.(70) Hans was one in a long line of suits brought by plaintiffs who sought to collect on bonds issued by Southern states during the Reconstruction period to finance industrial improvements after the Civil War.(71) As the Reconstruction governments collapsed, the states tried to ignore these bonds, so the bond-holders sued to collect against the states. When Hans attempted to sue his own state of Louisiana in federal court, the court dismissed the suit, and the Supreme Court affirmed this dismissal While the majority of scholars think Hans was wrongly decided,(72) the more important point is that the Court's holding in Hans had nothing to do with congressional power to override a presumption of sovereign immunity. The Hans court was simply stating a common law idea of state immunity which was likely overstated due to the political climate.(73) Justice Bradley specifically noted that the Court had searched to determine whether Congress had displaced the sovereign immunity presumption.(74) The Court would not have undertaken this examination if it did not believe Congress indeed possessed the power to overcome this common law doctrine.(75) So although Hans greatly extended the scope of sovereign immunity to preclude federal question jurisdiction over a state by an in state citizen, the decision did not address congressional power to abrogate this immunity. The Seminole Court should not have relied on the Hans decision for the proposition that sovereign immunity is an immutable constitutional principle.

In Seminole Tribe, the majority position was also bolstered by the assumption that the Ex parte Young doctrine would vindicate citizen rights in the absence of direct state accountability.(76) The Court needed to make this assumption to preserve citizen suits as an enforcement tool against states.(77) However, this required the Court to graft Fourteenth Amendment jurisprudence(78) onto laws made pursuant to Congress's Commerce Clause authority. This graft is inherently unstable, as evidenced by the Seminole Tribe Court's limitation of the use of Ex parte Young with the Indian Gaming and Regulatory Act--a statute with a "limited remedial scheme."(79) Although Justice Rehnquist added a footnote stating that the doctrine is still valid in most statutes with limited remedial schemes, including the Clean Water Act,(80) the distinction between the limited remedial schemes of the Clean Water Act and the Indian Gaming and Regulatory Act is unclear. The Seminole Tribe limitation, combined with the lack of precedent for using Ex parte Young with Commerce Clause statutes,(81) is a bewildering blend of Eleventh Amendment, Commerce Clause, and Fourteenth Amendment jurisprudence leading to instability and uncertainty in the lower courts and the public.

C. Methods of Circumventing the Eleventh Amendment

Besides the Ex parte Young doctrine, there are other methods of circumventing broad notions of state immunity in federal court. Justice Brennan tirelessly pointed out that "the [sovereign immunity] doctrine is inconsistent with the essential function of the federal courts," and that it has led to the "development of a complex body of technical rules made necessary by the need to circumvent the intolerable constriction of federal jurisdiction that would otherwise occur."(82) This complex body of rules devised to circumvent state immunity to citizen suits in federal courts include state consent to federal court jurisdiction and congressional abrogation of state sovereign immunity, as well as the Ex parte Young doctrine. The first of these, state consent to suit, is the most universally sanctioned method. Hamilton began his discussions of immunity with the basic tenet that "[i]t is inherent in the nature of sovereignty for a state not to be amenable to the suit of an individual without its consent."(83) More recently, Justice Powell reiterated in Atascadero State Hospital v. Scanlon: "if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action."(84) Proponents of all three Eleventh Amendment theories would agree that a state can consent to a suit by its own citizens.

The second method which allows individuals to sue states is, through congressional abrogation of state immunity. After Seminole Tribe, this method is limited to legislation under the Fourteenth Amendment.(85) In its 1976 Fitzpatrick v. Bitzer decision, the Supreme Court held unequivocally that Congress can abrogate state sovereign immunity when it legislates pursuant to Section 5 of the Fourteenth Amendment, stating, "the Eleventh Amendment, and the principle of state sovereignty which it embodies . . . are necessarily limited by . . . [sections] 5 of the Fourteenth Amendment"(86) That case left open the question of whether the Court was distinguishing the Fourteenth Amendment from other constitutional powers, specifically. the Commerce Clause.(87) The issue left unresolved until the 1980s was whether Congress, acting pursuant to constitutional powers other than Section 5 of the Fourteenth Amendment, could abrogate a state's Eleventh Amendment immunity.

The Supreme Court, in a progression of cases culminating in Union Gas, eventually concluded that Congress has the power to abrogate immunity in statutes enacted under the Commerce Clause and other plenary powers, if the intent to abrogate was unmistakably clear in the text of the statute.(88) In Union Gas,(89) the Court applied this clear textual abrogation rule to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)(90) and the Superfund Amendments and Reauthorization Act of 1986 (SARA)(91) and held that these statutes contained language sufficient to indicate Congress's unequivocal intent to make states liable for violations.(92) Implicit in this reasoning is the Court's assumption that Congress has the power to abrogate state immunity if it so chooses. The practical result of this holding allowed potentially responsible parties under CERCLA to sue states for contribution to clean-ups of contaminated sites. In Part III of the Union Gas opinion, Justice Brennan analogized the Fourteenth Amendment reasoning in Fitzpatrick v. Bitzer to the Commerce Clause in this case.(93) Thereafter, the focus of these Eleventh Amendment cases was the ambiguity of statutory language, though Chief Justice Rehnquist and Justices O'Connor and Kennedy dissented strongly on the basis that federal courts lacked jurisdiction because Congress did not have the power to override the Eleventh Amendment pursuant to its Commerce Clause power.(94) These dissents became law in the Seminole Tribe decision. Thus, Congress can no longer override state sovereign immunity when legislating with Commerce Clause power.

The third, and most significant, method of circumvention is the use of the Ex parte Young doctrine, which allows individuals to sue state officials in federal court for prospective injunctive relief.(95) The Supreme Court has limited the Ex Parte Young doctrine in several respects highly relevant in the environmental context. Now that Congress no longer has power to abrogate sovereign immunity under the Commerce Clause, Ex Parte Young iS the sole means of recourse for citizens against states that violate federal environmental laws. When a suit names a state official as a defendant, the Eleventh Amendment still bars the action if the state is the real party in interest(96) Whether the state is the real party in interest depends on the relief sought by the plaintiffs. Suits that seek prospective, injunctive relief are deemed to be against the state official, while suits seeking retroactive relief are viewed as against the state.(97) This fiction somehow separates the state official from the state, holding the official personally liable.(98) Courts have increasingly relied on this idea since its development in 1908. Indeed, Charles Wright asserts that "the doctrine of Ex parte Young seems indispensable to the establishment of constitutional government and the rule of law."(99) Other characterizations, however, are more cynical, and arguably, more honest. Justice Brennan points out that "[u]nder the rule of Ex parte Young, a State may be required to obey federal law, so long as the plaintiff remembers to name a state official rather than the State itself as a defendant."(100)

III. EX PARTE YOUNG

To understand why citizen reliance on Ex Parte Young is an inappropriate method of circumvention in suits unrelated to civil rights violations, an analysis of the history of the Ex Parte Young doctrine is necessary. The original case involved Minnesota's adoption of an allegedly unconstitutional law limiting railroad rates.(101) The law provided for severe penalties and possible imprisonment for railroads and shareholders that failed to comply.(102) The day before the law was to take effect, stockholders of nine railroads brought suit in federal court to enjoin the companies in which they held stock from complying with the law.(103) Among the defendants was the Attorney General of Minnesota, Edward T. Young. The plaintiffs alleged that the rates prescribed by the new law were unjust and confiscatory, and would deprive the companies of their property without due process of law, contrary to the Fourteenth Amendment.(104) The Court held that an injunction against Young was proper, offering this oft-cited reasoning and stressing the necessity of citizen recourse against unconstitutional state laws and unconscionable penalties:

The act to be enforced is alleged to be unconstitutional and if it be so,

the use of the name of the State to enforce an unconstitutional act to the

injury of complainants is a proceeding without the authority of and one which

does not affect the State in its sovereign or governmental capacity. It is

simply an illegal act upon the part of a state official in attempting by the

use of the name of the State to enforce a legislative enactment which is

void because unconstitutional. If the act which the state Attorney General

seeks to enforce be a violation of the Federal Constitution, the officer in

proceeding under such enactment comes into conflict with the superior

authority of that Constitution, and he is in that case stripped of his

official or representative character and is subjected in his person to the

consequences of his individual conduct The State has no power to impart to

him any immunity from responsibility to the supreme authority of the United

States.(105)

Only Justice Harlan dissented from this holding, pointing out that "[n]o relief was sought against [Young] individually but only in his capacity as Attorney General . . . [a]nd the manifest, indeed the avowed and admitted, object of seeking such relief was to tie the hands of the State."(106) Justice Harlan noted correctly that the Court was actually enjoining state activity, but because the Court's Eleventh Amendment conception would not allow a suit against the state, the law would pretend that the defendant in this action was Young, not the state of Minnesota.

The opinion established a legal fiction. First, the Fourteenth Amendment runs only to states; thus, in order to have a right to relief under this Amendment, the plaintiff must be able to show that state action is involved in the denial of his or her rights. Instead of viewing the Fourteenth Amendment as a restriction on Eleventh Amendment immunity, the Court created the anomaly that enforcement of the Minnesota statute is state action for purposes of the Fourteenth Amendment, but merely the individual wrong of Edward T. Young for Eleventh Amendment purposes. The Supreme Court definitively reiterated this illogic a few years later in Home Telephone and Telegraph v. Los Angeles,(107) when it held that under Ex parte Young, an officer is acting independently of the state only for Eleventh Amendment purposes; the action is a state action under the Fourteenth Amendment.(108)

A. The Supreme Court's "Pure" Use of Ex parte Young

The Supreme Court has cited this convenient fiction in approximately 160 cases since its inception, most often in conjunction with 42 U.S.C. [sections] 1983,(109) the civil rights statute enacted under the Fourteenth Amendment which holds state officials liable for violating citizens' constitutional rights. Because the Fourteenth Amendment was enacted after the Eleventh Amendment, it is plausible that the Fourteenth Amendment was intended to limit sovereignty granted in the Eleventh Amendment. However, in Quern v. Jordan,(110) Justice Rehnquist concluded that although 42 U.S.C. [sections] 1983 was adopted pursuant to Section 5 of the Fourteenth Amendment, there was insufficient indication of congressional intent to abrogate immunity under that statute.(111) Thus, in these primarily civil rights cases, Ex parte Young is justified as ensuring that citizens' constitutional rights are not violated without means of redress.(112) According to Professor Charles Wright, this reliance is valid: "To be sure the doctrine of Ex parte Young has a fictive quality to it; nonetheless, it serves as an effective mechanism for providing relief against unconstitutional conduct by state officers and for testing, in the federal courts, the constitutionality of the state statutes under which they act."(113)

In the first fifty years of Supreme Court Ex parte Young application, not a single case used the doctrine to enjoin an officer from violating a federal Commerce Clause statute as the Supreme Court recommended in Seminole Tribe, and as the Ninth Circuit did in Caltrans. Justices used the doctrine exclusively to provide "injunctive relief against [a] state official for violation of [the] Fourteenth Amendment"(114) as the Court had done in the original case. In the 1930s, the Court used Ex parte Young to guard against regulatory state statutes which imposed heavy fines that were not redressible by eventual suit in federal court.(115) In Petroleum Exploration v. Public Service Com'n of Kentucky, the Court framed the issue as it was envisioned by the original Ex parte Young Court "It is true that the injury which flows from the threat of enforcement of an allegedly unconstitutional, regulatory state statute with penalties so heavy as to forbid the risk of challenge in proceedings to enforce it, has been generally recognized as irreparable and sufficient to justify an injunction."(116) In other cases, the Court repeatedly stressed that overriding the Eleventh Amendment should not be taken lightly: "To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights. We have said that it must appear that the danger of irreparable loss is both `great and immediate'."(117) Today, the predominant use of Ex parte Young is still to protect civil rights and guard against unconstitutional state statutes with excessive penalties when there is no adequate remedy in court.(118)

B. Inadvertent Expansion of Ex parte Young in Supreme Court Language and Ninth Circuit Cases

While Professor Wright assumes that the doctrine is uniformly used as a means for testing constitutionality of state statutes when private citizens have no other redress, the fiction has recently been applied to federal statutes enacted under the Commerce Clause. Several circuits, including the Ninth Circuit, have loosely relied on the Supreme Court's imprecise characterizations of the doctrine(119) in order to stretch the doctrine's application to include injunctions for state violation of federal statutes even when there is no conflicting state statute, though the Supreme Court itself has never used Ex parte Young for this purpose. The expansion, however, is a necessary corollary to the Supreme Court's restrictive Eleventh Amendment interpretation.

In the Ninth Circuit, the expansive trend began with Almond Hill School v. United States Dep't of Agriculture(120) and Coeur d'Alene Tribe v. Idaho,(121) though these cases did have civil rights implications. However, the Ninth Circuit's language in these cases advocating the use of Ex parte Young with federal statutes, combined with the Seminole Tribe blessing of such a use, resulted in Caltrans, a case in which there were no civil rights questions. The doctrine is no longer being used as a safeguard for individual rights in extraordinary, isolated circumstances. This vision of Ex parte Young is far from the initial view of the doctrine as providing a narrow grant of injunctive relief for citizens against a state official's egregious, unconstitutional action.

1. Almond Hill School v. United States Department of Agriculture 

In Almond Hill, plaintiffs sought a preliminary injunction to stop California's use of pesticide spraying to combat a Japanese beetle infestation. The defendants included the United States Department of Agriculture, the California Department of Food and Agriculture, and several state officials.(122) The Ninth Circuit held that although the Eleventh Amendment barred the action against the California Department of Food and Agriculture, the action against the state officials to enforce the federal statutory right in the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)(123) was valid under Ex parte Young.(124)

The court's analysis in Almond Hill began with the defendants' contention that because the claim in this case alleged violations of federal statutory law only, the general Eleventh Amendment prohibition against states as the real party in interest should apply.(125) The court addressed this argument by explaining the history of Ex parte Young and concluded that "[t]he underlying purpose of Ex parte Young seems to require its application to claims against state officials for violations of federal statutes. . . . To hold otherwise would allow states to disregard the requirements of federal statutes, undermining the power of federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States."(126) This rationalization reveals that the court believed it had no choice but to use Ex parte Young to counter the restrictive effects of broad state immunity from suit. Significantly, in Almond Hill, the plaintiffs also alleged a [sections] 1983 cause of action.(127) While the court did not validate this claim because of FIFRA's express enforcement scheme, the court did acknowledge that the rights of the people affected by the pesticide spraying could raise individual health concerns that were redressible by the Fourteenth Amendment.

2. Coeur d'Alene Tribe v. Idaho

Nearly ten years later, the Ninth Circuit decided a second case involving federal statutory enforcement under Ex parte Young. This case, however, added a property rights dimension as well as a [sections] 1983 claim. In Coeur d'Alene Tribe u Idaho,(128) the Coeur d'Alene Tribe brought suit against the state of Idaho and various state officials and agencies in an attempt to quiet title in the Tribe to all navigable waters, banks and beds within the boundaries of the Tribe's 1873 reservation agreement. The court found that the State of Idaho was immune from suit because it had not waived its immunity or consented to suit, but cited Almomd Hill to apply the Ex parte Young exception to "alleged violations of federal statutes"(129) and allowed the plaintiffs to sue the Idaho state officials. The court thus simplified the holding in Ex parte Young: "any action on the part of state officials that violates federal law cannot be attributed to the state."(130) Because the Tribe alleged that it held the property at issue pursuant to an executive order ratified as a federal statute, the Ninth Circuit allowed the suit against the state officials.(131)

In this case, as in Almond Hill, the facts could support the possible use of Ex parte Young to vindicate citizen rights, but the courts used a statute enacted pursuant to the Fourteenth Amendment to grant relief as well. The court in Coeur d'Alene believed that "[n]one of the claims discussed above differ when analyzed under 42 U.S.C. [sections] 1983."(132) So in this case, the use of Ex parte Young was not necessary, yet the court chose to frame the issue in terms of the permissible use of Ex parte Young with a federal statute. This alternate holding makes Caltrans's reliance on this decision feasible, but inappropriate. Caltrans had no arguable civil rights violation. Using the Supreme Court's language as a guide, the Ninth Circuit has oversimplified characterization of Ex parte Young and applied it to violations of federal statutes without an adequate rationale.

The Supreme Court has granted certiorari in Coeur d'Alene,(133) focusing on the interplay between Ex parte Young and quiet title actions that may be partially retroactive in nature. Idaho claims that if the Court finds that the Coeur d'Alene Tribe is the rightful owner of the submerged lands in question, this ownership will extend retroactively to the date of the reservation. If quieting the title to these lands is retroactive, relief will be precluded by the Ex parte Young limitation to prospective injunctive relief. For this reason, Idaho alleges that federal courts lack the authority to resolve the issue because any decision against the state would intrude too deeply on state immunity. The Supreme Court will likely reconsider and address the scope of both the Eleventh Amendment and Ex parte Young when contrasting Idaho's contention that this relief is not suited to Ex parte Young(134) with the Tribe's idea that when disputes arise between states and others that "involve the infringement of federally protected rights by state officials, the Ex parte Young doctrine opens the federal court coos for their resolution."(135)

This case highlights a particularly negative aspect of Ex parte Young--the restriction to prospective relief. If the relief sought has any aspect of retroactivity, the claim is deemed against the state, and Ex parte Young cannot be used as a vehicle for suit.(136) The line between prospective and injunctive relief can accurately be described as "shadowy."(137) In Edelman v. Jordan,(138) the Supreme Court found that Illinois officials administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AABD)(139) had followed state regulations that did not comply with federal time limits within which states had to process and make AABD grants to applicants. However, the Court reversed the Appellate Court decision to allow payment of funds which were wrongfully withheld from the applicants because this relief would be retroactive in nature and affect the treasury of the state.(140) Justice Douglas, in his dissent' argued that the decision to bar the award of the missed payments is arbitrary since the nature of the financial impact on the state treasury is "precisely the same" whether the relief awarded is prospective only or requires payments for the weeks or months wrongfully withheld.(141) Even the Edelman majority admitted that "the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex parte Young will not in many instances be that between day and night."(142)

This confusion about where to draw the line between permissible and impermissible relief was highlighted in Milliken v. Bradley(143) when the Court upheld a school desegregation order requiring expenditure of state funds to satisfy requirements of the desegregation decree. The funds would be used to administer several "remedial education programs"(144) designed to "restore the schoolchildren of Detroit to the position they would have enjoyed absent constitutional violations of state and local officials."(145) The Court found this expenditure of funds from the state treasury permissible under Ex parte Young because though "the programs are . . . `compensatory' in nature" this "does not change the fact that they are part of a plan that operates prospectively to bring about the delayed benefits of a unitary school system."(146) This reasoning further obscures the line between retroactive and prospective relief in Ex parte Young cases, because, as Professors Low and Jeffries have observed, the award of past payments in Edelman could "be fairly described as `part of a plan that operates prospectively to bring about the delayed benefits of' the federally required payment schedule."(147)

Even if a clear line could be drawn in application of the prospective or retroactive distinction, Professor Akhil Amar illustrates the ludicrous result of this rule in an environmental scheme: "Perversely, a state government that spends money to avoid violating the Constitution ends up financially worse off than one that cynically flouts higher law until ordered into prospective compliance."(148) In suits for either damages or penalties against states, or in suits such as Coeur d'Alene when a citizen is simply asking to quiet title, the Court's adherence to absolute state immunity, but allowance of suits against state officials, leads to a confusing system that either unjustifiably absolves states from liability, or premises this relief on a constitutional doctrine if the court can frame the relief as prospective in nature.

C. Seminole Tribe's Blessing of "Impure" Ex parte Young

The Seminole Tribe Court's inquiry into whether Ex parte Young should be applied to the Indian Gaming and Regulatory Act (IGRA) focused largely on whether Congress, had it realized it had no power to abrogate state immunity under the Commerce Clause, would have nevertheless intended for state officials to be liable under Ex parte Young. The Court found that the specific remedial scheme in IGRA precluded other private remedies.(149) Though Congress clearly intended states to be liable in IGRA, "the fact that Congress chose to impose upon the State a liability which is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young strongly indicates that Congress had no wish to create the latter."(150) The ironic result of this analysis is that though Congress has no power to make states, vis-a-vis their officials, liable to citizens under Commerce Clause statutes, the question of a court-imposed remedy under Ex parte Young will depend on whether Congress intended such a remedy in the statute.

After Seminole Tribe's denial of congressional authority to abrogate state immunity under the Commerce Clause and endorsement of the Ex parte Young doctrine in environmental citizen suits, citizens need to rely heavily on the Ex parte Young remedy because it is the only means through which a citizen can seek relief against a state. Caltrans is a prime example. When the Ninth Circuit allowed the Natural Resources Defense Council (NRDC) to sue the head of the California Department of Transportation for violating the Clean Water Act (CWA), the court observed that the citizen suit provision in the CWA specifies that it applies "to the extent permitted by the Eleventh Amendment"(151) and that, therefore, "[i]t would seem reasonable . . . that Congress implicitly intended to authorize citizens to bring Ex parte Young suits."(152) This reasoning implies that Ex parte Young operates as an inherent facet of the Eleventh Amendment--not as an exception used in extraordinary situations. In overlaying the Eleventh Amendment fiction with the Ex parte Young fiction, the Ninth Circuit has been forced down the cumbersome avenue paved by the Supreme Court.

The Caltrans court reached its decision by relying on Almond Hill, Coeur d'Alene, and primarily, Seminole Tribe. Although the court could find language in Ninth Circuit cases advocating Ex parte Young use whenever a state violates a federal law, the court indicated that its decision was based on the recent Seminole Tribe decision.(153) In the absence of Seminole Tribe, it is doubtful that the stretch from the Ninth Circuit's previous use of Ex parte Young accompanied by a plausible [sections] 1983 claim to its use in Caltrans for a simple permit violation would have been taken lightly by the court

In Caltrans, Judges O'Scannlain and Kleinfeld asserted that they were uncomfortable with the use of Ex parte Young to grant relief in this Clean Water Act case. Judge O'Scannlain stated, "[the Ninth Circuit] took a wrong turn in Almond Hill, which Coeur d'Alene follows."(154) These two cases serve as the ostensible justification for the Caltrans decision. The "wrong turn" Judge O'scannlain alluded to is the court's assumption that the Ex parte Young doctrine applies to federal statutes as well as constitutional violations. While both these cases have this broad holding, the relief sought was actually premised on individual constitutional rights. Thus, the use of Ex parte Young in these two cases differs from the use in Caltrans. Almond Hill and Coeur d'Alene are distinguishable from Caltrans because a state's violation of an CWA permit would not likely be regarded as directly implicating individual rights concerns. Though these preceding Ninth Circuit cases were important authority for the Caltrans holding, Caltrans, with its simplified factual basis lacking even an arguable constitutional claim, is a more expansive interpretation of the Ex parte Young doctrine.

The First Circuit, in Strahan v. Coxe, has recently used the same post-Seminole Tribe analysis as Caltrans in a suit brought by a conservationist against state officials to enjoin them from permitting the use of gillnets which jeopardize several species of endangered whales.(155) The court held that "Ex parte Young, even as refined by Seminole Tribe, continues to provide an exception from the Eleventh Amendment" in the Endangered Species Act (ESA) context(156) This conclusion is encouraging for environmentalists, especially in light of the defendants' assertion in this case that the Seminole Tribe holding applied with the same force to the ESA as it did to IGRA.(157) The court agreed with Justice Rehnquist's Seminole Tribe footnote, stating "the Defendants overestimate the breadth of Seminole Tribe's impact on Ex parte Young . . . Young does not affect the statutes in the present action whose remedial schemes are not similar to the one provided for in IGRA."(158) The court stressed that when citizen suit provisions authorize suit against "any person" who is alleged to be in violation of the relevant Act,(159) the limitation in Seminole Tribe does not apply because Congress intended for state officials to be liable in the statutes. This case, and Caltrans, portends the best-case scenario for the future of environmental citizen suits against states after Seminole Tribe. Superficially, the Supreme Court's solution solves the problems inherent in the Eleventh Amendment and Ex parte Young fictions.

IV. THE ELEVENTH AMENDMENT, EX PARTE YOUNG, AND THE ENVIRONMENTAL REGULATORY EFFECT

As Justice Stevens notes in his Seminole Tribe dissent, "[t]he fundamental error that continues to lead the Court astray is its failure to acknowledge that its modem embodiment of the ancient doctrine of sovereign immunity `has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment.'"(160) The Eleventh Amendment itself should not restrict in-state citizens from bringing suit against a state and may not restrict out-of-state citizens from suing on a federal question. Thus, there are two possible reasons for the Court's expansion of sovereign immunity to the extent it has in Seminole Tribe: 1) an unwillingness to depart from what it views as solid, historic Eleventh Amendment precedent, or perhaps, 2) the Court's own theoretical conceptions about the "indignity," or perhaps the economic uncertainty, of subjecting states to citizen suits.

A. Restrictive Sovereign Immunity

As previously illustrated, the extent of sovereign immunity in British common law is greatly exaggerated.(161) Additionally, the most oft cited support for the modem sovereign immunity doctrine, the Hans decision, did not hold that sovereign immunity is a constitutional tenet. In fact, the decision expressly avoided the question of whether Congress had power to override the common law doctrine of immunity.(162) While it is conceivable that a state's immunity from suits by another state's citizens is constitutionally prohibited, a suit by a state's own citizen should only be precluded by common law, and thus should be subject to displacement by statute if Congress clearly chooses to do so.

The infirmity of this argument is particularly apparent in the context of federal environmental regulatory laws. Environmental regulation did not exist until the 1970's when Congress recognized that the quality of the nation's environment may take precedence, in some instances, over other national goals, such as industry and commerce. The language of the federal environmental statutes indicates that Congress intended to hold all pollutes liable and that citizen participation was an integral component of the framework they had created.(163) To provide an exemption for states would be a significant loophole in a carefully constructed enforcement scheme.

Professors Low and Jeffries observed that "[t]he stakes involved in interpreting the 11th amendment are very high. Virtually the entire class of modem civil rights litigation plausibly might be barred by an expansive reading of the immunity of states from suit in federal court."(164) This argument has less weight today than a decade ago. Civil rights litigation is relatively secure due to the Court's continued allowance of congressional abrogation under the Fourteenth Amendment. This contention is, however, highly relevant to modem environmental litigation. The Seminole Tribe majority's perpetuation of the idea that it is an "indignity" to subject states to federal courts at the behest of private parties(165) is flawed because this notion has no place in the modem federalist system.

In addition, the "indignity" of state suit is invalidated by the idea that currently, states are not wholly immune. States can be sued by other states, the federal government, and indirectly, by citizens under Ex parte Young. A citizen can currently alert the Environmental Protection Agency (EPA) of a state's environmental violation and the state will, if EPA chooses to take enforcement action, be forced to comply with federal law and pay penalties. Thus, state immunity in the environmental context is not nearly absolute. It is, however, extremely important to citizens who depend on these enforcement mechanisms both in theory and in practice.(166) The entire citizen suit system is undermined by a broad construction of state sovereign immunity.(167) Because Congress envisioned citizens as "private attorneys general"(168) in the environmental arena, state immunity from suit is not commensurate with congressional intent in the current environmental framework.(169)

B. The Ex parte Young "Fix"

Though Justice Souter vehemently attacks the Court's Seminole Tribe Eleventh Amendment jurisprudence with solid scholarship and legal analysis, he fails to critically examine the Ex parte Young doctrine itself. He asserts that "the case could, and should, readily be decided on this point [of Ex parte Young] alone."(170) Justice Souter should not have ended his rigorous historical critique of the Seminole Tribe maJority with the Eleventh Amendment question. Justice Souter believes the Ex parte Young doctrine "marks the frontier of the enforceability of federal law against sometimes competing state policies,"(171) but does not extend this rationale to situations in which there is no competing, and possibly unconstitutional, state law. The only practical rationale for using the Ex parte Young doctrine in conjunction with Commerce Clause statutes is to correct an overly expansive construction of the Eleventh Amendment. Because Justice Souter's conception of the Eleventh Amendment would obviate the need for the doctrine if Congress had intended for states to be sued, Ex parte Young would not be necessary in these cases.

As discussed in Part III, the Ex parte Young doctrine was not developed to operate as an inherent part of the Eleventh Amendment. It was developed, and primarily used, as a means of citizen redress for constitutional violations by state officers when there is no clear statement of intent to abrogate in a Fourteenth Amendment statute.(172) Only recently has the Court diverged from this uniform history. The use of Ex parte Young for violation of federal Commerce Clause statutes is inappropriate because it pits two constitutional provisions against each other. That is, its effect is to enjoin state activity with a citizen suit--the exact result a broad principle of sovereign immunity is designed to avoid--and there is no extreme constitutional transgression to mandate this result. Permitting suits against state officials is a convenient way to make states liable for breaking federal law, but if state sovereign immunity is an integral component of federalism, then the Ex parte Young loophole has unjustifiably become the rule.(173) As the Seminole Tribe majority states, "the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area . . . that is under the exclusive control of the Federal Government "(174) If this is true, then state sovereignty should not dissipate with the change of the defendant's name.

After Seminole Tribe, circuit courts will gain confidence in using Ex parte Young to enforce environmental statutes, though neither the Supreme Court nor the circuit courts have explained a defensible rationale for this use besides practical necessity. As Chemerinsky points out, "[w]ithout Young, federal courts often would be powerless to prevent state violations of the Constitution and federal laws."(175) The enactment of the Fourteenth Amendment can defensibly be read as limiting whatever sovereign immunity was secured by the Eleventh Amendment and permitting Congress to abrogate sovereign immunity when enacting legislation under the Fourteenth Amendment,(176) When Congress is not clear in the statute, Ex parte Young is necessary to ensure that citizens have a right to vindicate Fourteenth Amendment concerns. However, in Seminole Tribe, the Court indefensibly reads congressional power under the Commerce Clause as limited by the Eleventh Amendment, but goes on to conclude that this limitation can be circumvented by Ex parte Young. Justice Souter indicates as much in Seminole Tribe, stating that although it is unlikely that the Supreme Court would ever invalidate Ex parte Young, the situation is quite different when "the underlying right is one of statutory rather than constitutional dimension."(177) The Supreme Court, following its recent limitation of congressional power to abrogate to Fourteenth Amendment statutes, and its assertion that the Ex parte Young doctrine is inapplicable with certain statutes, may, and should, similarly limit the doctrine of Ex parte Young to constitutional violations.(178)

C. Conclusion

Justice White observed a decade ago that "The Court is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution."(179) This is exactly the situation in which the Supreme Court finds itself after its Seminole Tribe decision. The Court took a wrong turn in both the sovereign immunity and Ex parte Young aspects of this decision, and lower courts, such as the Ninth Circuit in Caltrans, are taking the easy way out--summarily concluding that the Ex parte Young exception is the rule when states violate federal law. This use only serves to make amends for the Court's inaccurate construction of the Eleventh Amendment, and is irresponsible and inadequate as a citizen suit enforcement mechanism, both as a matter of policy and legal and historical precedent.(180) The Court should reconsider the first aspect of the Seminole Tribe decision, and consider the Eleventh Amendment in light of the overwhelmingly consistent body of scholarly and historical analysis which argues that absolute sovereign immunity is not, as some Justices on the Supreme Court believe, an inherent part of our Constitution.(181)

In addition, the Court may, and should, relegate Ex parte Young to constitutional rights. Ex parte Young is the supreme fiction when used to enforce Commerce Clause statutes when there is no constitutional right at stake. Ex parte Young was developed as a way to balance the competing interests of federal supremacy and state sovereign immunity. When the supremacy at issue is a constitutional right, federal supremacy undoubtedly trumps state sovereignty through the use of Ex parte Young. When the federal interest at issue is a federal statute, state sovereignty should prevail if Congress does not intend the federal statute to abrogate immunity because sovereign immunity is not constitutionally mandated. Courts that use Ex parte Young as a vehicle through which citizens can enjoin states from violating laws enacted under the Commerce Clause evidently think these federal statutory rights are superior to state immunity.(182) Instead of expanding a constitutional doctrine to apply to federal statutes and allowing courts, rather than Congress, to choose which citizen rights to vindicate, the Court should rethink the broad notion of state sovereign immunity. It is inappropriate to adhere in theory to a notion of state sovereignty, yet in practice, allow injunctive relief against states through suit of their officials.(183) The Court is on stronger intellectual and constitutional ground by allowing suits against states when Congress so intends, and saving the Ex parte Young doctrine for those extreme situations when a citizen's constitutional rights are implicated.

Author's Note

On June 23, 1997, the Supreme Court issued its Idaho v. Coeur d'Alene Tribe of Idaho decision(184) As predicted by this Chapter, this most recent case in the Ex parte Young progression serves to further narrow and complicate the Young doctrine. Justice Kennedy delivered the opinion of the sharply-divided Court that the Coeur d'Alene Tribe's suit could not go forward under Ex parte Young in federal court. Justice Kennedy strongly articulated the Court's deference to "the dignity and status of [ ] statehood" and the ideal of absolute state sovereign immunity.(185) More significantly, Justice Kennedy, joined by Chief Justice Rehnquist, denounced "reflexive reliance on [the] obvious fiction [of Ex parte Young]."(186) Instead, the Court introduced a vague test of "balancing and accommodation of state interests" to determine whether the Young exception applies in a given case.(187) Justice Kennedy gently characterized this new test as a "case by-case approach to the Young doctrine" and an "exercise in line-drawing" and asserted that this analysis has support in prior Supreme Court decisions.(188) The reality is that this is an extreme and unprecedented limitation on Ex parte Young which would preclude claims for prospective, injunctive relief against state officials if the "effect" on the state, whether monetary or theoretic, is considerable.

Justice O'Connor was joined by Justices Scalia and Thomas in a concurring, and ultimately controlling, opinion. In accord with the Seminole Tribe decision, Justice O'Connor would deny relief under Ex parte Young because the relief sought by the Tribe was primarily against the state, and additionally, was retroactive in nature. Justices O'Connor, Scalia, and Thomas did not join in Justice Kennedy's opinion because of their belief that it "unnecessarily recharacterizes and narrows much of our Young jurisprudence."(189)

The dissent, authored by Justice Souter, and joined by Justices Stevens, Ginsberg, and Breyer, would have allowed the Tribe to bring their suit in federal court. The dissent suggested that the net result of the Court's opinion is to "redefine and reduce the substance of federal subject-matter jurisdiction to vindicate federal rights."(190)

In effect, while Coeur d'Alene does not directly involve a federal statutory right, this decision lends credence to the fear that Ex parte Young will soon prove to be a wholly unreliable means of citizen redress against states. Unfortunately, the Supreme Court seems to have prioritized the avoidance of potential undesirable effects of citizen lawsuits on state interests over the necessity of state compliance with federal law.

(1) 116 S. Ct. 1114 (1996).

(2) Although the decision has spawned innumerable commentaries exploring the likely effects of the ruling, "[t]he significance of Seminole Tribe is widely debated." Sarah Bond Counterpoint Seminole Tribe of Florida v. Florida A Victory for States' Rights; Indian Gaming Act Caught in the Crossfire, 21-SEP, MONT. LAW. 21 (1996). See Suing the State Gets Tough, Legal Times, July 29, 1996, at S40 for a discussion among legal scholars of Seminole Tribe's importance.

The dissenting Seminole Tribe Justices, however, found the decision highly significant. Justice Stevens asserted, "The importance of the majority's decision ... cannot be overstated.... [I]t prevents Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy." 116 S. Ct. at 1134 (Stevens' J., dissenting). In his thirty-nine page dissent, Justice Souter, pined by Justices Ginsberg and Breyer, argued that the majority decision is "fundamentally mistaken." Id. at 1145 (Souter, J., dissenting). Scholars criticize the holding as well: "[T]he Seminole Tribe decision offends both the plain meaning and the historical intent of the Constitution. It gives constitutional status to a nontextual common law doctrine of state sovereign immunity as a limitation on powers expressly given to the federal government ... Moreover, the outcome benefits no clearly defined constituency except perhaps those wishing to strengthen state regulatory prerogatives and limit federal power as an academic principle." Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213, 2238 (1996).

(3) Seminole Tribe, 116 S. Ct. at 1119. The Indian Commerce Clause is indistinguishable from the Interstate Commerce Clause for abrogation purposes. Id. at 1127.

(4) 25 U.S.C. [sub sections] 2701-2721 (1994).

(5) 491 U.S. 1 (1989), overruled by Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996).

(6) 42 U.S.C. [sub sections] 9601-9675 (1994).

(7) 491 U.S. at 14.

(8) Id. at 35-42. The dissenting Justices argued that Congress had no power to abrogate state sovereign immunity under Commerce Clause statutes.

(9) Seminole Tribe, 116 S. Ct. at 1131.

(10) The Fourteenth Amendment provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." U.S. Const. amend. XIV, [sections] 1. Section 5 gives Congress power to "enforce, by appropriate legislation, the provisions of this article." Id [sections] 5. Chief Justice Rehnquist cited Fitzpatrick v. Bitzer. 427 U.S. 445, 452-56 (1976), to support the settled notion of Congressional power to abrogate under the Fourteenth Amendment:

In Fitzpatrick, we recognized that the Fourteenth Amendment, by expanding

federal power at the expense of state autonomy, had fundamentally altered

the balance of state and federal power struck by the Constitution.... We

held that through the Fourteenth Amendment, federal power extended to

intrude upon the province of the Eleventh Amendment and therefore that

[sections] 5 of the Fourteenth Amendment allowed Congress to abrogate the

immunity from suit guaranteed by that Amendment.

Seminole Tribe, 116 S. Ct. at 1125.

(11) 116 S. Ct. at 1132. Justice Rehnquist stated, "[w]here Congress has prescribed a de tailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parse Young." Id.

(12) Justice Rehnquist contrasted [sections] 2710(d)(7)(A)(i) of IGRA with several statutes, including the Clean Water Act, which authorizes "a suit against `any person' alleged to be in violation of relevant water pollution laws." 116 S. Ct at 1133 n.17 (citing 33 U.S.C. [sections] 1365(a) (1994)).

(13) Natural Resources Defense Council v. California Dep't of Transp. (Caltrans), 96 F.3d 420 (9th Cir. 1996).

(14) The CWA, like all environmental statutes, was enacted through Congress's Commerce Clause power. 33 U.S.C. [sections] 1251-1387 (1994); U.S. CONST. art I, [sections] 8, cl. 3.

(15) Caltrans, 96 F.3d at 421. The court treated Caltrans as a state actor, though the law concerning liability of state agencies is unclear. See infra note 38.

(16) Caltrans, 96 F.3d at 424.

(17) Id.

(18) 42 F.3d 1244 (9th. Cir. 1994), cert. granted, 116 S. Ct. 1415 (1994). See the Author's Note following the article for the recent Coeur d'Alene Tribe decision's impact.

(19) 768 F.2d 1030 (9th. Cir. 1985).

(20) The plaintiffs in Almond Hill were schoolchildren who were personally harmed by the state's pesticide use. In Coeur d'Alene, a Tribe's ownership of property pursuant to treaty rights was at stake.

(21) Caltrans, 96 F.3d at 424.

(22) John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1891 (1983); see also Louis E. Wolcher, Sovereign Immunity and the Supremacy Clause: Damages Against States in Their Own Courts for Constitutional Violations, 69 Cal. L. Rev. 189, 197 (1981) (stating that the Eleventh Amendment is "an elaborate structure of fiction and artifice").

(23) 2 U.S. (2 Dall.) 419 (1793).

(24) "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . between a State and Citizens of another State . . . between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subject." U.S. CONST. art III, [sections] 2, cl. 1.

(25) Chisholm, 2 U.S. (2 Dall.) at 420.

(26) This idea is known as "profound shock" 1 C. Warren, The Supreme Court in United States History 91-96 (rev. ed. 1935). In contrast, Professor Gibbons believes, "Congress's initial reaction to the Chisholm decision hardly demonstrates the sort of outrage so central to the profound shock thesis" Gibbons, supra note 22, at 1926.

(27) U.S. CONST. amend

(28) Id.

(29) This broad idea of sovereign immunity has many critics. "Sovereign immunity is an unattractive doctrine that does not belong in an enlightened constitution. Unfortunately, however, it is a part of ours." David Currie, Sovereign Immunity and Suits Against Government Officers, 1984 Sup. Ct. Rev. 149, 168 (1984). Justice Stevens deems the idea that the `King could do no wrong' absurd:

[T]he bloody path trod by English monarchs both before and after they reached

the throne demonstrated the fictional character of any such assumption. Even

if the fiction had been acceptable in Britain, the recitation in the

Declaration of Independence of the wrongs committed by George III made that

proposition unacceptable on this side of the Atlantic.

Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1143 (1996) (Stevens, J., dissenting).

(30) 134 U.S. 1 (1890).

(31) Id. at 20-21.

(32) According to Gibbons:

The theory that is now uncritically accepted as the true meaning of the

eleventh amendment dates not to 1798--the year of the amendment's

ratification--but to 1890, when a peculiar and temporary set of political

circumstances led the Supreme Court, in one of the boldest examples of

judicial activism in its history, to rewrite the amendment, giving it a

meaning that its framers never intended it to have.

Gibbons, supra note 22, at 1893.

(33) Justice Brennan argued throughout his term that:

[t]he doctrine that has thus been created is pernicious. in an era when

sovereign immunity has been generally recognized by courts and legislatures

as an anachronistic and unnecessary remnant of a feudal legal system,. . .

the Court has aggressively expanded its scope. If this doctrine were

required to enhance the liberty of our people in accordance with the

Constitution's protections, I could accept it. if the doctrine were required

by the structure of the federal system created by the Framers, I could accept

it. Yet the current doctrine intrudes on the ideal of liberty under law by

protecting the States from the consequences of their illegal conduct. And the

decision obstructs the sound operation of our federal system by limiting the

ability of Congress to take steps it deems necessary and proper to achieve

national goals within its constitutional authority.

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 302 (198.5) (Prennan, J., dissenting) (citations omitted).

(34) Erwin Chemerinsky, Federal Jurisdiction 367-419 (2d ed. 1994). Certain of these theories are often divided or conflated, depending on the complexity of the analysis See, e.g., Letitia A. Sears, Pennsylvania v. Union Gas: Congressional Abrogation of State Sovereign Immunity Under the Commerce Clause, Or, Living with Hans, 58 Fordham L. Rev. 513, 515-18 (1989) (discussing two Eleventh Amendment interpretations); Herbert Hovenkamp, Judicial Restraint and Constitutional Federalism: The Supreme Court's Lopez and Seminole Tribe Decisions, 96 Colum. L. Rev. 2213, 2239 (1996) (discussing four different Eleventh Amendment interpretations). Justice Souter argues that there are two plausible Eleventh Amendment interpretations: 1) a bar only as to diversity suits, and 2) a bar to all suits brought by out-of-state citizens. He does not recognize the Seminole Tribe's majority construction as a possible interpretation of the Eleventh Amendment. Seminole Tribe, 116 S. Ct. at 1149-50. (Souter, J., dissenting).

(35) Chemerinsky, supra note 34, at 375.

(36) The only advocates of this view seem to be the five Supreme Court Justices in the Seminole Tribe majority. As Justice Souter observed in his own extensive Eleventh Amendment research, "I have discovered no commentator affirmatively advocating the position taken by the Court today." 116 S. Ct. at 1150 n.8 (Souter, I., dissenting). See Akhil R. Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1480 (1987) ("in the end, the Supreme Court's vision of state sovereign immunity warps the very notion of government under law.... It puts the government above, not under, the law.").

(37) Chemerinsky, supra note 34, at 383. Chemerinsky points out procedural problems with this construction the first approach is effective because it provides a clear jurisdictional mandate that federal courts may not hear suits against governments; however, this approach is flawed in two respects. Id. at 377. First, traditionally, subject matter jurisdiction may not be granted by consent or waiver, but in Eleventh Amendment cases, the Supreme Court has held that consent is an acceptable way for immunity to be circumvented Id. Second, federal courts must raise jurisdictional constrains on their own motion when defects become apparent, yet the Supreme Court has said, "we have never held that the Eleventh Amendment] is jurisdictional in the sense that it must be raised and decided by this Court on its own motion." Id. (citing Patsy v. Board of Regents of Fla., 457 U.S. 496, 516 n.19 (1982)).

(38) This view of the Eleventh Amendment is not an absolute prohibition against state suits. An important practical exception to the broad idea of sovereignty is that the Eleventh Amendment does not bar suits against states by other states or by the federal government Chemerinsky, supra note 34, at 385. However, a state may not sue another state to protect an individual citizen's interests Id. (citing Maryland v. Louisiana, 451 U.S. 725, 745 n.21 (1981)). In addition, the Eleventh Amendment only applies in federal court, and it does not constrain the Supreme Court's appellate jurisdiction as to state courts. Chemerinsky, supra note 34, at 385.

Significantly, suits against municipalities or political subdivisions are not seen as suits against states and are thus not barred unless there is excessive state involvement in their operation, or unless damages are to be paid directly from the state treasury. Id at 386; see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 123:24 (1979). Since municipalities interact closely with citizens by providing an array of important public services, they are the most likely to violate constitutional rights, and thus be sued. Municipalities use this expansion of Eleventh Amendment immunity to insulate themselves from liability. Chemerinsky, supra note 34, at 386. Not surprisingly, the law concerning the immunity of state agencies' boards, and other entities from suit in federal courts is `quite inconsistent' Id at 387.

(39) See Vicki C. Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L.J. 1, 6 (1988).

(40) Chemerinsky, supra note 34, at 378.

(41) See Lawrence C. Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342, 1346 (1989); Calvin R. Massey, State Sovereignty and the Tenth and Eleventh Amendments, 56 U. Chi. L. Rev. 61, 63 (1989).

(42) Chemerinsky, supra note 34, at 377-79.

(43) John E. Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 Colum. L. Rev. 1413, 1441-45 (1975).

(44) Justice Stevens is a proponent of the view that "the doctrine of state sovereign immunity was a common-law rule that Congress had directed federal courts to respect. not a constitutional immunity that Congress was powerless to displace." Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1137 (1996) (Stevens, J., dissenting). Justice Stevens differs with the other dissenting Justices, however, in his belief that the Eleventh Amendment would bar an out-of-state citizen from suing on a federal question

(45) Chemerinsky, supra note 34, at 380. The great majority of scholarly commentary agrees that this is the proper Eleventh Amendment construction See Gibbons, supra note 22, at 1946; see also William A. Fletcher, A Historical Interpretation of the Eleventh Amendment A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033, 1035 (1983). Professor Fletcher argues that the Amendment prohibits only suits founded solely on diversity jurisdiction. Accordingly, cases involving federal question suits should be permitted William A. Fletcher. The Diversity Explanation of the Eleventh Amendment. A Reply to Critics, 56 U. Chi. L. Rev. 1261, 1274-75 (1989); Jackson, supra note 39, at 44; Amar, supra note 36. at 1466-81.

(46) U.S. Const. art III, [sections] 2, cl. 1.

(47) Justices Souter, Ginsberg, and Breyer adhere to this new, as does Justice Brennan, 116 S. Ct. at 1144, 1136.

(48) Justice Brennan's opinion states, "Though we have never squarely resolved this issue of congressional power, our decisions mark a trail unmistakably leading to the conclusion that Congress may permit suits against the States for money damages." 491 U.S. 1, 14 (1989) (emphasis added). In previous cases raising the issue, the Court held that Congress had not used the clear and unmistakable language necessary to abrogate. See, e.g., Employees v. Department of Pub. Health and Welfare, 411 U.S. 279, 284 86 (1973) (holding that though the power to regulate commerce does include the power to override States' immunity from suit. an examination of the Fair Labor Standards Act and its legislative history did not demonstrate a clear intent to deprive states of their "constitutional" sovereign immunity),

(49) Union Gas, 491 U.S. at 13-23.

(50) Seminole Tribe, 116 S. Ct. 1114, 1128 (1996).

(51) Justice Rehnquist notes that "the Nation survived for nearly two centuries without the question of the existence of such [congressional] power [to abrogate state immunity] ever being presented to this Court" Id. at 1131.

(52) Union Gas, 491 U.S. at 19.

(53) "The Court in Union Gas reached a result without an expressed rationale agreed upon by a majority of the Court" Seminole Tribe, 116 S. Ct. at 1127.

(54) The Eleventh Circuit observed that Justice White's "vague concurrence renders the continuing validity of Union Gas in doubt " Seminole Tribe of Fla. v. Florida, 11 F.3d 1016, 1027 (11th Cir. 1994), aff'd, 116 S. Ct. 1114 (1996).

(55) "[Besides Fitzpatrick,] [i]n only one other case has congressional abrogation of the States' Eleventh Amendment immunity been upheld." Seminole Tribe, 116 S. Ct. at 1125 (referring to Union Gas).

(56) "We have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." Blatchford v. Native Village of Noatak 501 U.S. 775, 779 (1991).

(57) This unfortunate construction of the Eleventh Amendment immunizes states from liability in federal court, even when federal court, jurisdiction is exclusive In the environmental context, this occurs when a state chooses not to assume regulatory authority for a federal statute such as the Clean Water Act (CWA). If a state violates the CWA and damages a private citizen's interest, the citizen has no recourse except to alert the Environmental Protection Agency (EPA) and hope that enforcement action is taken. While EPA's enforcement duties against violators are non-discretionary, the reality is that EPA is constrained by funding and personnel limitations and cannot possibly enforce all statutory violations of which it is aware. 33 U.S.C. [sections] 1319(a)(3) (1994) (setting forth non discretionary duties of the Administrator).

(58) Seminole Tribe, 116 S. Ct. at 1149.

(59) Significantly, Justice Souter notes that the "weightiest commentary following the amendment's adoption described it simply as constricting the scope of the Citizen-State Diversity Clauses." Id at 1151 (Souter, J., dissenting). Chief Justice Marshall, in Cohens v. Virginia, 19 U.S., 6 Wheat. 264 (1821) emphasized that the amendment had no effect on jurisdiction in federal question cases. "The point of the Eleventh Amendment, according to Cohens, was to bar jurisdiction in suits at common law by Revolutionary War debt creditors, not `to strip the government of the means of protecting, by the instrumentality of its Courts, the constitution and laws from active violation.'" Seminole Tribe, 116 S. Ct. at 1152 (quoting Cohens, 19 U.S., 6 Wheat. at 407).

(60) Seminole Tribe, 116 S. Ct. at 1131.

(61) Id. at 1130, 1133.

(62) See supra notes 34 and 45.

(63) Gibbons, supra note 22, at 1894.

(64) 116 S. Ct. at 1130.

(65) Gibbons, supra note 22, at 1895-96.

(66) Id. at 1895 (citing Edwin M. Borchard, Government Liability in Torts (pts. 1, 4 & 5). 34 Yale L.J. 1, 4-5 (1924)); Lois L. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1, 2 (1963).

(67) Gibbons, supra note 22, at 1896.

(68) Id.

(69) Id.

(70) 116 S. Ct. at 1130.

(71) Eric Foner, Reconstruction: America's unfinished Revolution 1863-77, 383-84 (1988).

(72) Justice Souter's dissent notes the "remarkabl[e] consisten[cy] of the scholarship on this point." 116 S. Ct. at 1153 (Souter, J., dissenting) (citing Jackson, supra note 39, at 44 n. 179).

(73) See supra note 61 and accompanying text

(74) Hans v. Louisiana, 134 U.S. 1, 18-19 (1890).

(75) "Hans provides affirmative support for the view that Congress may create federal-court jurisdiction over private causes of action against unconsenting States brought by their own citizens." Seminole Tribe, 116 S. Ct. at 1138 (Stevens, J., dissenting). "[T]he Hans Court had no occasion to consider whether Congress could abrogate that background immunity by statute." Id. at 1153 (Souter, J., dissenting).

(76) In response to Justice Stevens's contention that the Seminole Tribe opinion would prohibit federal jurisdiction over suits to enforce rights with exclusive federal jurisdiction, Rehnquist assured that "Justice Stevens' statement is misleadingly overbroad We have already seen that several avenues remain open for ensuring state compliance with federal law .... Most notably, an individual may obtain injunctive relief under Ex parse Young in order to remedy a state officer's ongoing violation of federal law." Id. at 1132. n.16.

(77) "If a state officer is sued for a prospective injunction to restrain unconstitutional action, the doctrine of Ex parse Young permits adjudication of a direct challenge to state action on the fiction that the state itself is not the defendant." Jackson, supra note 39, at 4.

(78) The Fourteenth Amendment, enacted after the Eleventh Amendment to ensure that the rights of citizens are not violated by state action, is acknowledged as limiting the scope of Eleventh Amendment immunity. See infra note 86 and accompanying text.

(79) 116 S. Ct. at 1133 n.17.

(80) Id. (citing 33 U.S.C. [sections] 1365(a)).

(81) See infra Part III (discussing the Ex parte Young doctrine usage).

(82) Atascadero, State Hosp. v. Scanlon, 473 U.S. 234, 255-56, (1985) (Brennan, J., dissenting).

(83) The Federalist No. 81, at 125-26 (Alexander Hamilton) (Tudor Publishing Co. 1937).

(84) 473 U.S. at 238.

(85) Actually, Congress presumably has abrogation power under the Thirteenth and Fifteenth Amendments as well because of the necessary and proper clauses which are analogous to the Fourteenth Amendment See U.S. Const. amend XIII, amend XIV. However, use of this power is rarely warranted.

(86) 427 U.S. 445, 446 (1975).

(87) Letitia A. Sears, Pennsylvania v. Union Gas: Congressional Abrogation of State Sovereign Immunity Under the Commerce Clause, Or, Living with Hans, 58 Fordham L. Rev. 513, 522 (1989).

(88) See supra notes 48-55 and accompanying text.

(89) 491 U.S. 1 (1988).

(90) 42 U.S.C. [sections] 9601 (1994).

(91) 100 Stat. 1613 (1986).

(92) 491 U.S. at 5.

(93) Id. at 16.

(94) Id. at 45-56. The ideas of these dissenting Justices achieved prominence in Seminole Tribe when Rehnquist's majority held that Congress has no power to abrogate under the Indian Commerce Clause. 116 S. Ct. at 1119.

(95) Monetary damages are not available from the state treasury in suits against state officials, but they are available directly from the state official if the official is sued in his or her individual capacity. However, prospective or ancillary effects which accompany the prospective relief and impact the state treasury are allowed. Edelman v. Jordan, 415 U.S. 651. 667-68 (1974).

Thus, after Seminole Tribe, polluting states cannot be parties in CERCLA contribution suits because the suit would be deemed against the state in almost all instances. A citizen could sue an individual state official in his or her individual capacity, but individual liability would be almost impossible to prove, and few state officials have the money necessary to be players in these suits. This limitation on CERCLA offers significant protection to state agencies, who are often involved parties in contaminated sites. Congress probably did not intend such a broad source of possible pollution to be exempted from CERCLA liability. This limitation is not as problematic with the Clean Water Act because citizens are limited to seeking prospective injunctive relief. See Gwaltney of Smithfield, Ltd., v. Chesapeake Bay Found, 484 U.S. 49, 56-63 (1987).

There are other limitations on the doctrine as well. The Supreme Court held in Pennhurst State Sch. and Hosp. v. Halderman that state officials cannot be sued in federal court for violating state law. 465 U.S. 89 (1984). As a result of Pennhurst, plaintiffs who have both state and federal claims cannot be sure whether to bring their claims in state or federal court Three options exist. First, a plaintiff could resign herself to suit in state court, losing the federal forum. Another option is to bring suit simultaneously in federal and state court, running the risk of res judicata in federal court if the state decides first Alternatively, a plaintiff could bring suit in federal court first and, if unsuccessful, seek redress in state court. These latter alternatives are time consuming and wasteful of judicial resources There might also be a statute of limitations problem at this advanced stage.

(96) Pennhurst, 465 U.S. at 101.

(97) Quern v. Jordan, 440 U.S. 332, 337 (1979).

(98) See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf and Eddy, Inc., 506 U.S. 139, 146 (1993) ("The doctrine of Ex parte Young . . . is regarded as carving out a necessary exception to Eleventh Amendment immunity.").

(99) Charles Wright, The Law of Federal Courts 312 (5th ed. 1994).

(100) Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 256 (1985) (Brennan, J., dissenting) (citation omitted). Justice Brennan added that "[t]hese intricate rules often create manifest injustices while failing to respond to any legitimate needs of the State." Id.

(101) Ex parte Young, 209 U.S. 123 (1908).

(102) Id at 128 29.

(103) Id at 129.

(104) Id at 130.

(105) Id. at 159-60

(106) Id. at 174.

(107) 227 U.S. 278 (1913).

(108) A defense of this fiction would assert that the distinction is just a different test for state action the Eleventh Amendment requires actual authority, whereas the Fourteenth Amendment needs only apparent authority.

(109) The text of 42 U.S.C. [sections] 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other proper proceeding

for redress.

42 U.S.C. [sections] 1983 (1994).

(110) 440 U.S. 332 (1979).

(111) Id. at 345. Thus, the clear statement rule is still applicable to Fourteenth Amendment statutes.

(112) Ex Parte Young is "commonly seen as a kind of civil rights facilitator." Hovenkamp, supra note 2, at 2246.

(113) Charles Wright, et. al., 13 Federal Practice and Procedure [sections] 3524, at 154 (1984).

(114) Bush v. Lucas, 462 U.S. 367, 374 n.12 (1983) (summarizing the Court's holding in Ex parte Young, 209 U.S. 123 (1908)).

(115) See, e.g., Natural Gas Pipeline Co. of Am. v. Slattery, 302 U.S. 300, 310 (1937) (finding cumulative penalties imposed by the Illinois Commerce Commission while testing the validity of a Commission order in court would be a denial of due process); life and Casualty Ins. Co. v. McGray, 291 U.S. 566, 574-75 (1934) (finding that a statute requiring payment of attorney fees by an insurance company when the company wrongfully withheld payment of a life insurance policy is consistent with due process and equal protection); Fenner v. Boykin, 271 U.S. 240, 243 (1926) (finding that federal courts have the power to enjoin state criminal proceedings only in extraordinary circumstances).

(116) 304 U.S. 209, 218-19 (1938)

(117) Speilman Motor Sales v. Dodge, 295 U.S. 89, 95 (1935) (citations omitted).

(118) See Thunder Basin Coal v. Reich, 510 U.S. 200, 221 (1994) ("the constitutional defect . . . was that the dilemma of either obeying the law and thereby foregoing any possibility of judicial review, or risking `enormous' and `severe' penalties, effectively cut off all access to the courts."); Morales v. Trans World Airlines, 504 U.S. 374, 381 (1992) (Ex parte Young held that federal courts can enjoin state officers "when enforcement actions are imminent--and at least when repetitive penalties attach to continuing or repeated violations of the law and the moving party lacks the realistic option of . . . raising its federal defenses"); Papasan v. Allain, 478 U.S. 265, 282 (1986) ("Ongoing constitutional violation . . . is precisely the type of continuing violation for which a remedy may permissibly be fashioned under [Ex parte] Young."); Juidice v. Vail, 430 U.S. 327, 335 (1977) (Ex parte Young was "the watershed case which sanctioned the use of the Fourteenth Amendment to the United States Constitution as a sword as well as a shield against unconstitutional conduct of state officers."); Cameron v. Johnson, 381 U.S. 741, 745-46 (1965) (citations omitted) ("It is true that Ex parte Young held that state officials could be enjoined from harassing people by starting multitudinous criminal prosecutions against them where severe cumulative punishments might accrue before the constitutionality of the state law involved could be tested"); Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 145 n.23 (1961) (Black, J., dissenting) (finding the case "identical to Ex parte Young" and quoting from it: "`the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation.'"). The reasoning offered in these examples of the accepted use of Ex parte Young do not apply in the context of citizen suit enforcement of state violation of federal statutes.

(119) The Seminole Tribe Court described the Ex parte Young doctrine as simply a device which allows citizens "to `end a continuing violation of federal law.'" 116 S. Ct. 1114, 1119 (1996) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). In Nevada v. Hall, the doctrine is summarily described as ensuring that "state officials can be sued in federal court." 440 U.S. 410, 420 n.19 (1979). Significantly, the Justices uniformly predicate these statements on cases which involve Fourteenth Amendment concerns, indicating the Court's propensity to ignore the distinction between application of Ex parte Young in Fourteenth Amendment and Commerce Clause cases.

(120) 768 F.2d 1030 (1985).

(121) 42 F.3d 1244 (1994).

(122) 768 F.2d at 1033.

(123) 7 U.S.C. [sections] 136 (1994). FIFRA is one of few environmental statutes containing no citizen suit provision.

(124) Almond Hill, 768 F.2d at 1034.

(125) Id. at 1033. In light of the current, accepted Eleventh Amendment theory of broad state immunity, this is a perfectly logical argument.

(126) Id. at 1034.

(127) Id at 1035.

(128) 42 F.3d 1244 (9th Cir. 1994), cert. granted, 116 S. Ct. 1415 (1994). For a discussion of the Court's recent decision in Coeur d'Alene, please refer to the Author's Note following the Conclusion, see infra, p. 963.

(129) Id. at 1250-51.

(130) Id.

(131) The Ninth Circuit relied on the Treasure Salvors test, developed by the Supreme Court to determine the officials' immunity. The three part test asks: 1) Is the action asserted against officials of the State or is it action brought directly against the state itself? 2) does the challenged conduct of the state officials constitute an ultra vires or unconstitutional withholding of property or merely a tortious interference? and 3) is the relief sought permissible, prospective relief? Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 690 (1981). It is significant in this case that the same result could have been reached in a 42 U.S.C. [sections] 1983 analysis. "The [sections] 1983 analysis and Ex parte Young analysis do not differ." Id. at 1255. The Court has repeatedly held that [sections] 1983 does not apply to environmental statutes because of their specific remedial citizen suit provisions. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (1981).

(132) 42 F.3d at 1255.

(133) 116 S. Ct. 1415 (1994).

(134) Brief for Petitioner at 18, Coeur d'Alene, No. 94-12 ("[T]he injunctive relief that the Tribe seeks is not tailored to enforcement of allegedly unconstitutional state statutes by state officers.").

(135) Respondent's Brief at 8, Coeur d'Alene, No. 94-12. Commentators are eagerly awaiting the Supreme Court's decision in this case: "Although one decision cannot resolve entirely the numerous doctrinal inconsistencies within current Eleventh Amendment law, Coeur d'Alene presents the Court with an ideal opportunity to continue its efforts to redefine the balance of power in federal-state relations, while at the same time clarifying Ex parte Young's application to suits seeking adjudication of a state's interest in real property." Matthew Berry, A Treasure Not Worths Salvaging, 106 Yale L.J. 241 (1996). See infra, at the conclusion of this Comment, Author's Note concerning the Supreme Court's recent resolution of Coeur d'Alene.

(136) Chemerinsky, supra note 34, at 394-98.

(137) P. Low & J. Jeffries, Supplement to Federal Courts and the Law of Federal-State Relations 166 (3d ed. 1996).

(138) 415 U.S. 651 (1973).

(139) 42 U.S.C. [sections] 801-805 (repealed 1975).

(140) 415 U.S. at 678.

(141) Id. at 682 (Douglas, J., dissenting).

(142) Id. at 667.

(143) 433 U.S. 267 (1977).

(144) Id. at 279.

(145) Id. at 281.

(146) Id. at 290.

(147) P. Low & J. Jeffries, supra note 137, at 167.

(148) Amar, supra note 36, at 1479.

(149) The Seminole Tribe Court's analysis of intent in the Indian Gaming and Regulatory Act resembles that in Middlesex Country Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (1981). In that case an organization of commercial fisherman brought a Clean Water Act suit against governmental authorities to stop discharge of pollutants into New York Harbor and the Hudson River. The fisherman sought relief under 42 U.S.C. [sections] 1983, and the Court denied relief, finding the CWA citizen suit provisions "unusually elaborate." 453 U.S. at 13. The Court stated that "[w]hen the remedial devices provided in a particular act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under [sections] 1983." Id at 20. Similarly, in Seminole Tribe, the Court's search for congressional intent in the IGRA revealed that though Congress had intended for states to be liable, state officials were not included in this scheme, and therefore a remedy under Ex parte Young could not be implied because of the lack of congressional intent

(150) Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 1133 (1996).

(151) Caltrans, 96 F.3d 420, 424 (9th Cir. 1996) (citing 33 U.S.C. [sections] 1365(a)).

(152) Id. at 424.

(153) This is understandable given Justice Rehnquist's express mention of the CWA, the statute at issue in Caltrans, as an example of Congress's permissibly authorized use of Ex Parte Young. Seminole Tribe, 116 S. Ct. at 1133 n.17.

(154) Caltrans, 96 F.3d at 424.

(155) 939 F. Supp. 963 (1996).

(156) Id. at 982.

(157) Id. at 980.

(158) Id. at 982.

(159) The ESA provides "any person may commence a civil suit on his own behalf (A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the Eleventh Amendment to the Constitution), who is alleged to be in violation of any provision of this chapter or regulation issued under the authority thereof." 16 U.S.C. [sections] 1540(g)(1) (1994). The IGRA, by contrast, authorized suits by specific entities against states.

(160) 116 S. Ct. at 1142 (quoting Union Gas, 491 U.S. 1, 25 (Stevens, J., concurring)).

(161) See supra notes 64-69 and accompanying text.

(162) See supra notes 30-33 and accompanying text.

(163) Friends of the Earth v. Carey was one of the first cases to explore and clarify the purpose of environmental citizen suits. 535 F.2d 165 (2nd Cir. 1976) The court's discussion centered around the Clean Air Act because it was the first statute to incorporate a citizen suit provision: "In enacting [sections] 304 of the 1970 Amendments, Congress made clear that citizen groups are not to be treated as nuisances or troublemakers but rather as welcome participants in the vindication of environmental interests. Fearing that administrative enforcement might falter or stall, `the citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective insurance that the Act would be implemented and enforced.'" Id. at 172 (quoting Natural Resources Defense Council v. Train, 510 F.2d 692, 700 (1975)).

(164) Peter W. Low & John Calvin Jeffries, Jr., Federal Courts and the Law of Federal State Relation 808 (2d ed. 1989).

(165) 116 S. Ct at 1124 (quoting Puerto Rico Aqueduct & Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 146) (1993).

(166) In a handbook designed to facilitate citizen enforcement of environmental statutes, Jonathan Turley describes inadequate areas of enforcement with respect to federal agencies and corporations:

The Department of Justice has been reluctant to launch prosecutions against

other federal departments. Without independent monitoring, government

officials and contractors knowingly exposed their workers and neighbors to

health dangers and environmental contamination that will require decades to

comprehend, not to mention clean up. In the absence of government action

against its own contractors and agencies, the most powerful deterrent is an

educated and active citizenry.

Jonathan Turley, Project for Participatory Democracy of the Tides Center, A Guide to Citizen Law Enforcement 34 (1996). Tulley points out that the Justice Department s Environmental Crimes Section "often seems to function more as a corporate public defender service than as an office of independent prosecutors." Id. at 6. These examples of the necessity of citizen involvement in the absence of federal enforcement action are applicable to states as well.

(167) In adopting [sections] 304 of the Clean Water Act, Congress specifically rejected attempts by Senators to delete or weaken the citizen suit section of the Act on the grounds that enforcement difficulties would overburden the court. See 116 Cong. Rec. 32, 92526, 33, 102 (1970) for attempts by Senators Hruska and Griffin to weaken the provisions.

(168) "The [Senate] committee realized that federal or state enforcement resources might be insufficient, and that federal agencies themselves might sometimes be polluters; the citizen suit provision created `private attorneys general' to aid in enforcement" Natural Resources Defense Council v. EPA, 484 F.2d 1331, 1337 (1st Cir. 1973) Citizen suit provisions are included in the Toxic Substances Control Act, 15 U.S.C. [sections] 2619 (1994) (TSCA); Columbia River Gorge National Scenic Area, 16 U.S.C. [sections] 544m(b)(2) (1994); Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. [sections] 1270 (1994) (SMCRA); Deep Seabed Hard Minerals Re source Act, 30 U.S.C. [sections] 1427 (1994); Clean Water Act, 42 U.S.C. [sections] 1365 (1994); Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. [sections] 1415(g) (1994); Act to Prevent Pollution from Ships, 33 U.S.C. [sections] 1910 (1994); Safe Drinking Water Act, 42 U.S.C. [sections] 300j-8 (1994); Resource Conservation and Recovery Act, 42 U.S.C. [sections] 6972 (1994) (RCRA); Clean Air Act, 33 U.S.C. [sections] 7604 (1994); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. [sections] 9659 (1994) (CERCLA); Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. [sections] 11046 (1994). The Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [sections] 136 (1994) (FIFRA), is the only environmental statute which lacks a citizen suit provision. "Person" is defined in all of the statutes except TSCA. Only the SM-CRA definition excludes governmental agencies.

(169) Both Congress and courts realize that environmental enforcement relies on citizen efforts. As noted in Friends of the Earth, "the very purpose of the citizens' liberal right of action is to stir slumbering agencies and to circumvent bureaucratic inaction that interferes with the scheduled satisfaction of the federal . . . goals" 535 F.2d at 173.

(70) Seminole Tribe of Fla. v. Florida, 116 S. Ct. 1114, 11.78 (1996).

(171) Id. at 1180.

(172) Orth attributes the recognition of Ex parte Young to the fact that by 1908 "the problem of repudiated Southern bonds was clearly a specter from an increasingly distant past." John V. Orth, The Judicial Power of the United States 128 (1987)

(173) The court in Caltrans reasoned that because Congress intended to permit Clean Water Act citizen suits to the extent permitted by the Eleventh Amendment, "it would seem reasonable, then, that Congress implicitly intended to authorize citizens to bring Ex parte Young suits against state officials.. Caltrans, 96 F.3d at 424. This reasoning supports the notion that the Ninth Circuit now views Ex parte Young as an inherent facet of the Eleventh Amendment.

(174) 116 S. Ct. at 1131.

(175) Chemerinsky, supra note 34, at 393.

(176) Rehnquist explained "We held that through the Fourteenth Amendment, federal power extended to intrude upon the province of the Eleventh Amendment and therefore that section 5 of the Fourteenth Amendment allowed Congress to abrogate the immunity from suit guaranteed by that Amendment." 116 S. Ct. at 1125.

(177) Id. at 1180 (Souter, J., dissenting).

(178) However, a limitation of Ex parte Young to constitutional violations without a corresponding limitation on state sovereign immunity would have disastrous consequences for citizen enforcement of environmental statutes. The Court should rethink both issues simultaneously.

(179) Bowers v. Hardwick, 478 U.S. 186, 194 (1986).

(180) "[T]his principle of immunity is in tension with two other fundamental constitutional principles: that the law will generally provide a remedy for rights violated by the government (`governmental accountability') and that the judicial power of the United States over claims arising under federal law is as broad, within its sphere, as is the legislative power of the United States." Jackson, supra note 39, at 4 (citing Marbury v. Madison, 5 L.S. (1 Cranch) 137 (1803)).

(181) Professor Jackson also argues that "the consequences of the Court's acknowledging the error in its constitutional theory of state immunity would be less drastic than might be thought" Jackson, sugary note 39, at 4.

(182) Madison believed sovereign immunity to be subordinate to the rights of the people as well: "As far as the sovereignty of the states cannot be reconciled to the happiness of the people, the voice of every good citizen must be, let the former be sacrificed to the latter." The Federalist No. 45, at 318 (James Madison) (Tudor Publishing Co. 1937).

(183) Akhil Amar's comments in 1987 are perhaps more appropriate ten years later "All we have left is an ad hoc mishmash of Young and Edelman, of full remedy and stale sovereignty, of supremacy and immunity, of law and lawlessness." Amar, supra note 36, at 1480.

(184) 117 S. 2028 (1997).

(185) Id. at 2043.

(186) Id. at 2034.

(187) Id. at 2038.

(188) Id. at 2039.

(189) Id. at 2045 (O'Connor, J., concurring).

(190) Id. at 2048 (Souter, J., dissenting).

Courtney E. Flora, Articles Editor, Environmental Law, 1997-98; student, Northwestern School of Law of Lewis & Clark College, J.D. and Certificate in Enviromnental and Natural Resources Law expected 1998; B.A. 1995, University of Michigan. The author wishes to thank Professors Craig Johnston, Stephen Kantor, and Lydia Loren for their comments and insight.