Federal sovereign immunity and clean water: a Supreme misstep.

I. INTRODUCTION

The sovereign immunity doctrine has been traced, perhaps incorrectly,(1) to the English concept of royal supremacy: "the king can do no wrong."(2) Despite never having royalty and being skeptical about federal power at its inception, the United States has retained the concept of sovereign immunity throughout its legal history.(3) Although the doctrine has suffered inconsistent and perhaps illogical treatment by the courts,(4) legal sovereign immunity lives on today.

In its 1992 decision, United States Department of Energy v. Ohio(5) (DOE), the Supreme Court denied individual states the power to impose punitive civil fines against the United States for past violations of the Clean Water Act (CWA).(6) Although the precise consequences of this decision remain to be seen, the holding will certainly not assist states in enforcing their federally mandated water pollution laws. By the time DOE reached the Court, several circuit courts were split on the question of whether the federal government had waived its sovereign )immunity under the civil suit provisions(7) and federal facility(8) sections of the CWA.(9) One commentator argued that the CWA should be read to waive federal sovereign immunity for state civil fines mandated by the CWA on the basis of congressional intent and the Act's statutory construction.(10)

The Supreme Court noted that federal facilities are twice as likely as private industrial facilities to violate the provisions of the CWA.(11) The federal facility at issue in DOE was a uranium processing plant that, the government conceded, had contaminated the air, water, and soil with radioactive materials and violated its state-issued permits.(12) Despite these violations, the Court held the state could not impose punitive civil fines for past violations, but the state could impose "coercive"(13) fines for future violations to bring the federal facility into compliance.(14) This holding substantially reduces the several states' power to bring federal facilities into compliance with various federally mandated water pollution control laws.(15)

A fundamental premise of the majority decision is that a waiver of immunity by the Federal government must be "unequivocal"(16) and "construed strictly in favor of the sovereign."(17) The majority assumed that its premise was based on long-standing traditions of American judicial history. However, an analysis of the doctrine shows that the Court has been inconsistent and somewhat arbitrary in its application of the immunity doctrine, ignoring the doctrine's only logical purpose: to safeguard the day-to-day functions of government against undue interference.(18)

Section I of this Note examines the roots of the sovereign immunity doctrine and its history of ambiguous treatment by the Supreme Court. Section II discusses sections of the Clean Water Act relevant to the DOE case and the unitary executive doctrine which prevents the Environmental Protection Agency (EPA) from forcing federal facilities to comply with environmental statutes. Section III explores the background of the DOE case and analyzes the Court's opinion. Section IV concludes that the Court's decision to imply waiver is inconsistent with the purpose of the Act and cannot be justified by the history of sovereign immunity. Finally, this Note urges quick congressional action to state clearly and unquestioningly the intent of waiver.

II. HISTORY OF THE SOVEREIGN IMMUNITY DOCTRINE

The sovereign immunity doctrine dictates that the government cannot be sued without consent. The origin of sovereign immunity can be traced to English common law where the maxim "the king can do no wrong" has been considered by some to be the basis of the doctrine.(19) The doctrine did not mean, however, that subjects were completely without a remedy against the sovereign in England.(20)

In feudal England each lord had a court where he was the judge.(21) A lord could not be sued in his own court without his consent.(22) However, subjects still had a remedy because a lord could be sued in any court higher than his own.(23) In the same sense, the King had his own court, but he could not be sued without consent since there was no higher court. However, if the King did not consent to suit, judicial review remained available. (24) Although the American courts have adopted the sovereign immunity doctrine, they have not adopted the elaborate procedures that developed in England to soften the impact of sovereign immunity.

In the United States, the doctrine has been invoked completely through judicial action; there is nothing in the Constitution declaring the federal government immune from suit by its citizens. Whether the Framers intended the government to enjoy sovereign immunity is unclear.(25) According to Hart and Wechsler, "The doctrine developed largely through dicta, reflecting evidently a general professional opinion."(26)

Supreme Court decisions reflect ambiguity surrounding sovereign immunity and its sources, boundaries, and policy goals. For example, there is disagreement among the Supreme Court opinions about the fundamental issue of the role that sovereign immunity plays in the Court's jurisdiction. While it is generally held that when the defendant is the United States the Court lacks subject matter jurisdiction, some opinions have implied that sovereign immunity is a defense on the merits.(27)

Another source of confusion is Justice Marshall's often cited dicta in Cohens v. Virginia,(28) that the Court has deemed the first explicit declaration of sovereign immunity.(29) Justice Marshall wrote, "The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the United States does not authorize such suits."(30) It is likely that Justice Marshall was speaking in the limited context where a statutory grant of jurisdiction is absent.(31) Later in Cohens, Justice Marshall wrote, "We think a case arising under the constitution or laws of the United States, is cognizable in the Courts of the Union, whoever may be the parties to that case.(32)

In one of the famous early sovereign immunity cases Chisholm v. Georgia,(33) the citizens of South Carolina sued Georgia for repayment of debts held in bond. The Court allowed the suit because it determined that suits between a state and citizens of another state were a constitutionally declared group of cases to which Article III powers extended.(34) The Chisholm decision caused alarm in the debt-ridden southern states(35) and was largely responsible for the ratification of the Eleventh Amendment.(36) Of greater significance to the doctrine of sovereign immunity, Chisholm created the principle that governmental immunity is subject to judicial definition.(37)

Much has been written about another seminal sovereign immunity case, United States v. Lee,(38) primarily because the Court admitted that sovereign immunity is a baffling doctrine that might not make sense in the American scheme of jurisprudence.(39) And in 1939, the Supreme Court decided Keifer & Keifer v. Reconstruction Finance Corp.,(40) which began a series of opinions by the Court reflecting a renewed uncertainty about the doctrine.(41) However, "the translation of these misgivings into an intelligible policy of interpretation in actions against the United States has been halting and irregular."(42)

In Keifer, the Court found that a corporation created by Congress was not immune from suit, despite the absence of explicit language in the enabling legislation which waived immunity.(43) The Court held that although Congress had included a to-sue-and-be-sued clause in many other corporate charters, its failure to do so in this case did not imply an intent to shield the company from suit.(44) The Court noted that Congress was not required to use a "ritualistic formula to waive immunity.(45)

The courts have relied on various devices to circumvent the harshness of sovereign immunity. Sometimes they have relied on the "bookkeeping notion of segregation" to find the doctrine inapplicable.(46) This notion is centered on whether the funds sought in a suit against a government official were set apart from the general treasury funds, and therefore considered to be in the official's possession.(47) If the funds are considered to be in the officer's possession sovereign immunity may not apply; if they are considered to be part of the government's general funds then the doctrine does apply.(48) This fiction illustrates the courts' inability to completely accept or completely disregard the immunity doctrine.(49)

The courts have also attempted to dissipate some of the unfairness of the sovereign immunity doctrine by use of the infamous "officer suit."(50) In an officer suit, sovereign immunity does not apply when the United States is not named on the face of the complaint. Instead, the complaint names a government officer without reference to her title or her official capacity.(51)

Some commentators have argued that the Supreme Court rules concerning sovereign immunity were fictitious and could be explained by the Court's struggle to apply a very strict doctrine more fairly.(52) However, Professor Cramton has suggested that sovereign immunity did have recognizable contours until the 1949 decision of Larson v. Domestic and Foreign Commerce Corporation.(53) After Larson, the Supreme Court decisions dealing with sovereign immunity resulted in "confusion and a further strengthening of the immunity."(54)

Due to the harshness of the doctrine, which is especially onerous in a nation which prides itself on freedom and justice,(55) Congress has explicitly revoked the federal government's immunity in a variety of contexts. For example, the Tucker Act(56) and the Federal Tort Claims Act(57) provide relief for contract and tort claims against the government. Ironically, the passage of the Tucker Act may have more firmly embedded the sovereign immunity doctrine in American jurisprudence by implying that Congress has the power to waive the judicially created immunity. The courts interpreted the Tucker Act as forbidding tort action against the federal government because it explicitly "allowed" some contract actions against it.(58)

In summary, judicial interpretation of the sovereign immunity doctrine has produced a confused body of judge made law. "No scholar, so far as can be ascertained, has had a good word for sovereign immunity for many years,"(59) and the courts appear wary of applying the doctrine and denying remedies to people who have been wronged by the government.

A. Justifications for Sovereign Immunity

Many justifications have been suggested for the sovereign immunity doctrine. Most of these have been discredited by commentators.(60) "The oldest purported rationale for the immunity of the sovereign - the notion that the King can do no wrong - is a perversion of its historical intendment, which was that the king was privileged to do no wrong.(61) It cannot be seriously asserted that the federal government, as it exists today, should have the privilege of being above the law.

Another justification is that sovereign immunity protects the government from the indignity of being subjected to suit.(62) Perhaps in common law England the idea of subjecting the beloved royalty to suit offended the sensibilities of the subjects.(63) However, the applicability of this concern to the present-day American political system is dubious. Even in 1882, when the government arguably was more fragile and vulnerable to attack from the populace, the Supreme Court denounced this rationale: "Nor can it be said that the government is degraded by appearing as a defendant in the courts of its own creation, because it is constantly appearing as a party in such courts, and submitting its rights as against the citizen to their judgment."(64)

Justice Holmes suggested as a rationale for sovereign immunity that "there can be no legal right as against the authority that makes the law on which the right depends."(65) This concept, however, was later discredited.(66) Judicial review is a concept inherent in American jurisprudence that subjects Congress, the ultimate sovereign, to challenge in the federal courts when its conduct interferes with a private party's legally protected interests.(67) "Thus the doctrine of sovereign immunity has never had the effect of insulating official conduct from judicial scrutiny and control."(68)

Another rationale for sovereign immunity is that undue judicial interference will have a "chilling" effect on the other branches of government, preventing them from taking bold decisive steps in the administration of their duties.(60) A related argument for sovereign immunity is that this type of judicial interference will impede the continuity of governmental action.(70) However, many Supreme Court decisions, including the famous case of Youngstown Sheet & Tube Co v. Sawyer,(71) interfere with public administration.(72) In Youngstown, the Court held that the President could not seize the nations steel mills to avoid a national emergency.(73) The Court made this determination despite the fact that the President maintained that the action was necessary to avert a national crisis.(74)

A further justification for sovereign immunity is that it protects the public treasury. This justification may carry greater weight when the nation's resources are very limited.(75) However, in light of the increased executive power and the increased use of federal funds in private rather than public functions,(76) this rationale no longer has substantial weight.

In summary, the various justifications and policy rationales for the sovereign immunity doctrine are not applicable to the current governmental structure. Simply stated, the doctrine holds the government above the law. Although immunity may be necessary in some situations to carry out the necessary day-to-day government functions, the context of the DOE case is not such a situation.

B. Sovereign Immunity and Environmental Legislation

Although all major federal environmental statutes contain sovereign immunity waiver provisions,(77) the Supreme Court has read these waiver provisions very narrowly. In 1959, Congress amended the precursor to the Clean Air Act,(78) declaring that federal facilities should comply with the air pollution standards "to the extent practicable and consistent with the interests of the United States. . . . "(79) Because this system of voluntary compliance was not successful, Congress revised this language in 1970 to require that federal facilities comply with federal and state air pollution requirements, unless they receive a presidential exemption.(80)

In 1972, after approval of its air pollution program by the U.S. Environmental Protection Agency, Kentucky notified various federally operated power generating facilities within its borders under state regulations they were required to apply for operating permits.(81) The facilities claimed immunity, asserting that they were not required to obtain state permits.(82) In Hancock v. Train,(83) the Supreme Court held that federal facilities were only responsible for compliance with state substantive requirements, but not for state mandated procedural compliance.(84) The Court found that obtaining a permit was procedural compliance.(85) The Court based its decision on two lines of reasoning. The first was the "old and well-known rule"(86) that "the federal function must be left free" of regulation."(87) The Court held that in deference of the "old and well known rule" any waiver of immunity must be "clear and unambiguous."(88) Second, the Court held the meaning of the word "requirements" in the statute referred only to substantive requirements.(89) The statute stated that "[e]ach department of ... the Federal Government ... shall comply with Federal, State ... and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements."(90) The Court invited Congress to amend the legislation if it wanted to require federal facilities to obtain permits.(91)

Similarly in Hancock's companion case, EPA v. California ex. rel. State Water Resources Control Board,(92) the Court held that federal facilities were only responsible for substantive compliance with the Clean Water Act.(93) The relevant statutory language mandated federal installations to "comply with Federal, State, interstate and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements."(94) The Court reasoned the word "requirement," as used in the statute, did not include securing a permit from the state because the language of the statute was not clear enough for the Court to infer that immunity had been waived.(95) As in Hancock, the Court invited Congress to amend the legislation if it was dissatisfied with the Court's conclusion.(96)

In 1977, only one year after the Court's decision in Hancock, Congress amended both the Clean Air Act and the Clean Water Act.(97) Congress explicitly criticized the Supreme Court's decision as an obstruction of congressional intent and made clear that federal facilities were subject not only to procedural requirements but also to "process and sanctions."(98)

III. ENFORCEMENT OF THE CLEAN WATER ACT

A brief overview of the relevant parts of the Clean Water Act (CWA) is necessary to understand the DOE decision. Part A of this section discusses the federal facility provision, the citizen suit provision, and the National Pollutant Discharge Elimination System (NPDES). The federal facilities provision of the CWA explicitly waives sovereign immunity in some instances, if not in all cases. However, the Supreme Court found that the language of the federal facilities provision was not unequivocal enough to waive sovereign immunity. The citizen suit provision is also relevant to the DOE decision because Ohio based its primary arguments on explicit language of the citizen suit provision. The NPDES program illustrates the unique federal/state relationship under the CWA. Part B explains the unitary executive doctrine which, in addition to sovereign immunity, is an obstacle to enforcing federal facility compliance with the CWA.

A. Statutory Framework of the Clean Water Act

1. The NPDES Permit Program

The CWA declares the "discharge of any pollutant by any person shall be unlawful," except when the discharge is in compliance with the CWA.(99) Under the CWA, Congress created the NPDES permit system allowing dischargers to obtain permits and comply with the law.(100) The NPDES permit program authorizes the EPA to issue permits to polluters after certain conditions have been met.(101) To enforce a permit the EPA may use civil actions,(102) criminal penalties,(103) and civil penalties up to $25,000 per day.(104) Because Congress contemplated that most permit issuing would be done by the states,(105) it gave the states the option of creating their own NPDES program subject to EPA approval and oversight.(106) To get its program approved, a State must show, among other conditions, that it has "adequate authority" to carry out the proposed program.(107) If the EPA finds that the State is not administering its program in accordance with the CWA, the EPA can withdraw its approval of the program and reassume the duty of administering the permit program.(108) Even when a state has an approved program, the EPA still retains the power to veto permit issuance upon a determination that the permit does not comply with the CWA.(109) The holder of a state NPDES permit is liable for both state and federal enforcement actions.(110)

In view of the NPDES program, it is clear that the CWA contemplates a dynamic cooperative relationship between the federal and state governments. The federal government retains a substantial amount of power and oversight. The states cannot go below the pollution baseline set by the CWA. States may, however, implement stricter standards and the EPA can enforce these standards.

2. The Federal Facilities Provision

Section 313 of the CWA declares that federal facilities will be subject to the same law as "any nongovernmental entity."(111) It explicitly states the provision "shall apply notwithstanding any immunity . . . under any law or rule of law."(112) However, the language which appears to limit waiver has caused confusion. The statute reads: "We United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such a court."(113) The legislative history shows that this provision was probably added only to ensure that federal entities could remove cases to federal district courts.(114) Logically, the waiver should be read broadly because the amendment to the CWA federal facilities provision was passed in response to flagrant federal violations of the Act.(115) Additionally, some commentators have argued that the structure of the CWA, when viewed as a whole, supports the assertion that violations of state-issued permits should be deemed violations of federal law.(116)

3. The Citizen Suit Provision

Beginning with the 1970 Clean Air Act, Congress began to provide citizen suit provisions in all major environmental statutes.(117) These provisions were designed to supplement federal enforcement of the various environmental acts.(118) During the 1970s, however, citizen suits were rarely filed against violators of the CWA.(119) During the 1980s the Reagan administration failed to enforce environmental regulations, and interest groups began using citizen suit actions to sue violators directly.(120)

Section 505 of the CWA allows citizens to commence civil actions to enforce effluent standards or limitations, except where a state or federal enforcement action is pending.(121) Citizens may sue the Administrator "where there is alleged a failure . . . to perform any act or duty . . . which is not discretionary . . . "(122) Additionally, citizens may sue the polluting facility directly.(123) This section expressly contemplates the likelihood of the United States being sued; "No consent judgment shall be entered in an action in which the United States is not a party [unless certain conditions are met]."(124)

In 1987, however, the Supreme Court created a formidable obstacle for private parties trying to enforce environmental regulations in Gwaltney of Smithfield v. Chesapeake Bay Foundation.(125) In Gwaltney, the Court held that the statutory language of the citizen suit provision of the CWA did not authorize citizen suits for wholly past violations.(126) Thus, citizens bringing suit under the CWA must prove ongoing violations.(127) This requirement creates an onerous burden for citizens and, as one commentator noted, it encourages the defense counsel to drag out litigation as long as possible.(128) The delay allows time for the offending facility to come into compliance, thereby forcing dismissal and avoiding penalties.(129) The scope of Gwaltney is probably not limited to suits brought under the CWA. Gwaltney might be applied to other statutes because most of the environmental statutes use language similar to the citizen suit provision of the CWA.(130) In response to Gwaltney, Congress amended the language of the Clean Air Act,(131) proposed amending the CWA, and incorporated language clearly allowing suits for past violations in new environmental legislation.(132)

B. EPA Enforcement of the CWA

Sovereign immunity is not the only obstacle for those concerned with bringing federal facilities into compliance. The unitary executive doctrine dictates that disputes between executive agencies must be handled by the Attorney General before they can be brought to a court.(133) This is the policy of the United States Department of Justice (DOJ), the official enforcer of environmental laws.(134) in an attempt to get around this doctrine, the EPA has set up procedures which, with the federal facility's consent, may allow EPA to issue administrative or compliance orders.(135) However, even with facility consent, the EPA lacks the power to enforce the orders because of the unitary executive doctrine.(136) Consequently, the EPA has "looked to states and citizens to bring suits to enforce compliance agreements entered into by the subject agency and the EPA."(137)

IV. UNITED STATES DEPARTMENT OF ENERGY V. OHIO

A. Background

The United States Department of Energy (Department) operated the Feed Materials Production Center to process uranium for the production of nuclear weapons in Fernald, Ohio.(138) In March 1986, the State of Ohio brought suit against the Department for allegedly disposing of hazardous waste improperly, releasing radioactive materials into the environment, and polluting the ground and surface water.(139) Ohio brought these claims under the Comprehensive Environmental Response Compensation and Liability Act of 1980,(140) the Ohio Solid & Hazardous Waste Control Act,(141) the Resource Conservation and Recovery Act (RCRA),(142) and the CWA.(143)

In 1988, the federal District Court of Ohio held that Congress waived sovereign immunity in both RCRA and the CWA.(144) The district court found the dispositive issue regarding the CWA to be whether the NPDES violations arose under federal law.(145) The Department argued that, because Ohio was authorized to carry out its own NPDES permit program, its program operated under state law and thus sovereign immunity had not been waived.(146) However, the court held that because the CWA required compliance with federal standards under the state programs, Congress intended compliance with a state permit to be compliance with the federal CWA. Therefore, Congress intended to waive immunity because the violations arose under federal law.(147)

On appeal, the Sixth Circuit Court of Appeals affirmed the district court's decision that Congress waived federal sovereign immunity in RCRA and the CWA.(148) The circuit court had reviewed the legislative history, and in particular, Congress' 1977 amendment of the CWA after EPA v. California ex rel. State Water Resources Control Board.(149) The Sixth Circuit Court found that because the amendment was provoked by a Supreme Court decision it "underscore[d] Congress's determination to waive sovereign immunity."(150) The court also found that the crucial issue was whether the NPDES state program penalties arose under federal law. hi view of the legislative scheme of the CWA,(151) the intent stated in the introduction of the CWA,(152) and the relationship between the federal EPA and the state's authorized NPDES program, the court interpreted the clause "arising under federal law" narrowly and held that sovereign immunity had been waived for civil fines imposed by a state for past violations of the CWA.(153)

B. The Supreme Court's Decision

1. Justice Souter's Majority Opinion

Upon appeal, however, the Supreme Court held that neither the CWA or RCRA waived sovereign immunity in relation to civil penalties for past violations.(154) The Court stated that waiver of Government immunity must be unequivocal(155) and that waivers must be construed strictly in favor of the sovereign.(156) For the first time since commencement of the action in 1986, the issue of "punitive" penalties as opposed to "coercive" penalties was raised. The Court distinguished between the two by reasoning that while punitive civil penalties addressed only past violations, coercive civil penalties deterred future violations and would force the federal facilities to comply with the law in the future.(157) The CWA, however, does not even mention "coercive" civil penalties.

As detailed below, the Court structured its analysis by first examining whether the government had waived immunity under the citizen suit provisions of RCRA or CWA. First, the Court addressed the citizen suit provision of the CWA.(158) Ohio argued that the express language of the citizen suit provision included the United States,(159) and because the citizen suit provision expressly provides for civil penalties as a means of redress, Congress intended to subject the United States to civil penalties.(160) The Court, however, did not accept this reading of the statute.

The Court conceded that the citizen suit provision explicitly names the United States as being amenable to suit.(161) The Court reasoned, however, that the civil penalties section(162) in the citizen suit provision(163) incorporated the limited statutory definition of "person" as it relates to civil penalties.(164) The Court then noted that the definition section applicable to the entire CWA(165) does not define the United States as a "person." Thus the Court found ambiguity in the waiver of sovereign immunity in the citizen suit provision. The Court found further support in the fact that many sections of the CWA have their own special definitions of "person," but the civil penalties provision does not.(166) Therefore, while Congress intended to subject the United States to suits, it did not intend to subject the United States to civil penalties.(167) "A clear and unequivocal waiver of anything more cannot be found; a broader waiver may not be inferred . . . Ohio's reading is therefore to be rejected."(168)

Next, the Court reviewed the federal facilities provision of the CWA.(169) In support of the federal facilities waiver, Ohio made two principal arguments: 1) the term "sanctions" includes punitive fines; and 2) the fines authorized under the state permit program approved by the EPA "aris[e] under Federal law" for the purpose of the statute.(170) The Court first considered the premise that "sanctions" should include punitive fines. The Court stated that "sanctions" might not only include punitive fines, "but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended."(171) The Court examined many sources, ranging from dictionaries to the California Civil Procedure Code, to determine that sanctions are generally considered "coercive" and therefore, there could be no assumption that they are punitive.(172)

Next, the Court examined the word "sanctions"(173) in context and determined that it was not intended to cover punitive fines because the context "cut against Ohio's position" in three ways.(174) First, the statute lists three separate types of legal enforcement which the government is subject to: "substantive and procedural requirements; administrative authority; and ~process and sanctions' whether ~enforced' in courts or otherwise."(175) The Court found distinction between "substantive requirements" and "process and sanctions" to be a significant source of congressional intent.(176) Second, rather than couple "sanctions" with "substantive requirements," Congress coupled it with "process," referring to "the enforcement of decrees or orders that the adjudicatory process finally provides."(177) Third, the Court found the statute's reference to "process and sanctions" as "enforced" in courts supported the proposition that "sanctions" referred to coercive fines and actions, not punitive penalties.(178)

Ohio's second argument was that the "arising under" language should be read to include fines authorized under Ohio's federally mandated state permit program.(179) The Court found this part of the statute more ambiguous than the narrow waiver in "sanctions" because the language expressly contemplated civil penalties.(180) However, the Court held that under the CWA, the modifier "arising under Federal law" applied only to the civil penalties section,(181) which it had previously determined did not apply to the United States, since the United States is not a "person."(182)

In response to Ohio's argument that without punitive fines states would not be able to force the facilities to comply with the law, the Court concluded, "[t]he case for such pessimism is not, however, self-evident."(183) The Court asserted that because coercive fines can be very expensive, they will provide sufficient incentive to bring federal facilities into compliance.(184)

The Court also determined that congressional intent did not imply that the unique relationship between the state and federal governments under the CWA caused state-issued NPDES permits to "arise under Federal law."(185) The Court based its reasoning on its prior interpretation of the statutory language granting federal question jurisdiction.(186) There the Court construed the "arising under" language to exclude cases where the plaintiff relied on state law when the state's power was expressly granted by federal law.(187) The Court found that Congress must have intended to adopt this interpretation in the CWA.(188) The Court questioned why Congress used such an expansive phrase as "civil penalties arising under Federal law,"(189) but concluded that they need not answer this question since a waiver of sovereign immunity must be unequivocal.(190)

Justice White's dissent stepped away from the majority's formalistic interpretation. He pointed out that there are serious problems concerning federal facilities and environmental noncompliance.(191) Justice White noted the congressional intent behind the waiver in the federal facilities provision was "to compel Government agencies to adhere to the environmental laws under which private industry must operate."(192) He then charged that the majority's reading of the statute was excessively narrow and obstructed congressional intent which, Justice White found, unequivocally expressed a waiver of immunity.(193)

However, Justice White did not attack the majority on policy grounds alone, but refuted the majority's reasoning on the grounds of statutory construction as well. He wrote that "[r]ather than engaging in these analytic gymnastics [to determine that process and sanctions did not include civil penalties], the Court need do nothing more than read the rest of the federal facilities provision."(194) Justice White believed that the language of the statute subjecting the United States to civil penalties under the federal facilities provision means just what it says: "Therefore the broad term ~sanctions' used earlier in the same subsection must include these penalties."(195) In view of the CWA's citizen suit provision, Justice White found that "[i]t is impossible to fathom a clearer statement that the United States may be sued and found liable for civil penalties."(196)

As in the lower courts, the question for the dissent then became whether the penalties arose under federal law.(197) Because of EPA's involvement in the state programs and the role that federal standards play in relation to state standards, "it is apparent that the ~arising under' limitation on the waiver of sovereign immunity was not intended to protect the Federal Government"(198) from penalties under state permit programs that "merely provide for the administration of a CWA permit system."(199) Justice White criticized the Court's final analysis of why the phrase "civil penalties arising under Federal law" is in the statute; under the majority's reasoning the provision has no meaning.(200) Justice White wrote, "It is one thing to insist on unequivocal waiver of sovereign immunity. It is quite another ~to impute to Congress a desire for incoherence' as a basis for rejecting an implicit waiver."(201)

V. CONCLUSION

When amending the CWA after Hancock the Senate Committee declared "[t]he act has been amended to indicate unequivocally that all Federal facilities and activities are subject to all of the provisions of State and local pollution laws."(202) The report continued:

Five years ago the Congress completed a comprehensive revision of

national water quality policy. The 1972 Amendments to the Federal

Water Pollution Control Act were initiated by the Congress and

enacted over a Presidential veto. Their implementation has been

uneven, often contrary to congressional intent, and, frequently more

the result of judicial order than administrative initiative."(203)

The Court thwarted legislative intent in Hancock(204) and California State Water Resources Board.(205) United States Dep't of Energy v Ohio(206) is no different. In response, some members of Congress have already proposed legislation which would again amend the CWA. As the Supreme Court recognized in 1882, "[t]he evils supposed to grow out of the possible interference of judicial action with the exercise of powers of the government essential to some of its most important operations, will be seen to be small indeed."(207)

The history of sovereign immunity has been inconsistent and its justifications are strained at best. Yet the Court demands extraordinarily explicit statutory language to waive it. Congress must try again to provide this language immediately because federal facilities are some of the worst polluters. Unless the federal facilities are required to comply with the law, history has shown they will not.

(1.) See Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 n.2 (1946) (noting that the concept may have developed in England because of a misconception of the law). (2.) 1 William Blackstone, Commentaries *238-39. (3.) See Roger C. Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich. L. Rev. 389, 392 (1970). (4.) Id. at 418 ("[T]he law of sovereign immunity, as elaborated in a number of fairly recent cases, is illogical, confusing, and erratic. The available materials materials no other conclusion"). (5.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627 (1992) [hereinafter DOE]. In DOE, the Court also unanimously decided federal immunity had not been waived under the Resource Conservation and Recovery Act (RCRA), but this issue is beyond the scope of this paper primarily because, as illustrated by the unanimous opinion, it is clear that Congress did not intend to waive federal immunity for the purpose of RCRA. Id. at 1640. Further, in October 1992, Congress enacted legislation expressly waiving sovereign immunity for the purposes of RCRA. Federal Facilities Compliance Act of 1992, Pub. L. No. 102-386, 106 Stat. 1505 (1992). (6.) Id.; Federal Water Pollution Control Act, 33 U.S.C. (sections) 1323 (1988 & Supp. 1991). (7.) 33 U.S.C. (sections) 1365(a) (1988). (8.) Id. at (sections) 1323(a). (9.) Compare Ohio v. United States Dep't of Energy, 904 F.2d 1058 (6th Cir. 1990) (the federal government waived its sovereign immunity under Section 1323 of the CWA) with California v. United States Dept of Navy, 845 F.2d 222 (9th Cir. 1988) (where the court held that the federal government had not waive its immunity under the CWA). (10.) Corrine Beckwith Yates, Note, Limitations of Sovereign Immunity Under the Clean Water Act: Empowering States to Confront Federal Polluters, 90 MICH. L. Rev. 183, 205-06 (1991) (arguing that state imposed regulations mandated by the Act should be read as having arisen under federal law, and the Act waives immunity for civil penalties which "arise under federal law"). See 33 U.S.C. (sections) 1323(a) (1988). (11.) United States Dep't of Energy v. Ohio, 112 S. Ct 1627, 1641 (1992) (White, J., dissenting) (citing U.S. General Accounting Office, Report to Congressional Requestors: Water Pollution, Stronger Enforcement Needed to Improve Compliance of Federal Facilities (1988)). (12.) DOE, 112 S. Ct. at 1640. (13.) Id. at 1636 (distinguishing coercive fines from punitive fines in that coercive fines do not apply to past violations). See infra text accompanying note 170. (14.) Id. at 1636. (15.) "[T]he majority ... deprives the States of a powerful weapon in combatting federal agencies that persist in despoiling the environment." Id. at 1641 (White, J., dissenting). (16.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1633 (1992) citing United States v. Mitchell, 445 U.S. 535,539 (1980)). (17.) Id. at 1633 (citing McMahon v. United States, 342 U.S. 25, 27 (1951)). (18.) Block, supra note 1, at 1063. (19.) See Blackstone, Supra note 2. (20.) See Louis L. Jaffe, Judicial Control of Administrative Action 197 (1965). (21.) For a general overview of the sovereign immunity doctrine in England, see Jeremy Travis, Note, Rethinking Sovereign Immunity After Bivens, 57 N.Y.U. L. Rev. 597, 604-07 (1982). (22.) Id. at 604. (23.) Id. (24.) Id. at 605. An aggrieved subject could file a petition of right or a damage action against the officers of the crown. The petition of right in essence stated that the petitioner would have a claim against the King as if he were anyone other than King. If the equity courts granted the petition the King could not refuse to grant relief Id. (25.) "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." Id. at 608 n.52 (quoting The Federalist No. 81, at 508 (Alexander Hamilton) (H. Lodge ed. 1908)) (emphasis in original). (26.) Paul M. Bator Et al., Hart and Weshsler's The Federal Court and The Federal System 1339 (Henry M. Hart ed., 2d ed., 1973) [hereinafter Hart]. See also United States v. Lee, 106 U.S. 196, 207 (1882).

[W]hile the exemption of the United States and of the several States

from being subjected as defendants to ordinary actions in the courts has

since that time been repeatedly asserted here, the principle has never

been discussed or the reasons for it given, but it has always been treated

as an established doctrine. Id. (citing to United States v. Clarke, 8 Pet. 436; United States v. McLemore, 4 How. 286; Hill v. United States, 9 How. 386; Nations v. Johnson, 24 How. 195; The Siren, 7 Wall 152; and The Davis, 10 Wall. 15). (27.) See Cramton, supra note 3, at 400 n.45 (contrasting Justice Gray's dissent in Lee, which stated that absent objection by the sovereign, immunity was waived, Justice Holmes' similar view that immunity derived from a lack of obligation on the part of the sovereign to be a party to suit, implying that immunity is a defense on the merits that is waived if not asserted, and clear holdings that speak of subject matter jurisdiction and apparently establish that the United States, when a defendant, cannot waive immunity.). See also HART, supra note 26, at 1343 ("It will be observed that these cases, treating the immunity as raising only a procedural bar, are diametrically opposed ... to Justice Holmes' conception ... that the immunity flows from the absence of any underlying obligation of the sovereign."). (28.) 19 U.S. (6 Wheat) 264 (1821). (29.) Lee, 106 U.S. at 207; see also Travis, supra note 21, at 612. (30.) Cohens, 19 U.S. (6 Wheat.) at 411-12. (31.) HART, supra note 26, at 1340. (32.) 19 U.S. (Wheat.) at 383. However, Cohens addressed whether the state could be sued in federal court, which is explicitly contemplated in the language of the Constitution. (33.) 2 U.S. (2 Dall.) 419 (1793). (34.) Id. at 431. (35.) Travis, supra note 21, at 610. (36.) Id. The next Congress convened after Chisholm was decided and proposed the amendment. "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." U.S. CONST. amend. XI. (37.) Chisholm, 2 U.S. (2 Dall.) at 424-25. See also, Travis, supra note 21, at 617. (38.) 106 U.S. 196 (1882). In Lee, the federal officers divested a land owner of property through an invalid tax sale. The land was used as a public cemetery. Since Lee had offered to pay the tax, he was not divested title; therefore the sale was invalid. The court held sovereign immunity was inapplicable in Lee's ejectment action. (39.) Id. at 207. ([W]hile the exemption of the United States and of the several States from being subjected as defendants to ordinary actions in the courts has since that time been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine."). (40.) 306 U.S. 381 (1939). (41.) For a brief history of conflicting opinions of the Court following Keifer, see HART, supra note 26, at 1351-56. (42.) Id. at 1351. (43.) Keifer, 306 U.S at 309-91. (44.) Id. (45.) Id. at 389. (46.) Block, supra note 1, at 1068. (47.) Id. See also Houston v. Ormes, 252 U.S. 469 (1920). (48.) Howton, 252 U.S. at 469; Lankford v. Platte Iron Works Co., 235 U.S. 461, 480-94 (1915) (Pitney, J., dissenting); Block, supra note 1, at 1068-69. (49.) "The interest of the government in the suit would seem to be the same whether the funds are mingled or a separate entry maintained in the treasury accounts." Block, supra note 1, at 1080. (50.) Ex parte Young, 209 U.S. 123 (1908); Cramton, supra note 3, at 398. (51.) This last requirement was of questionable worth because, as Professor Cramton argued, if the court felt that the government should be responsible, it would find the officer was acting outside the scope of his official capacity, if it felt the government should not be liable, it would find that he was acting within the scope of his authority and thus sovereign immunity shielded the officer from liability. Cramton, supra note 3, at 399.

Fiction has its purposes in the law as elsewhere. The device of the

officer's suit, with its mystical transformation of a high government official,

acting under color of his authority, into an ordinary private citizen

allowed the courts to administer a flexible and discriminating control of

the burgeoning activities of government. Id. (52.) Block, supra note 1, at 1079. Because these distinctions are primarily artificial, Block argued for simplifying matters by allowing sovereign immunity only when not doing so would greatly interfere with the government's day to day operation. See also Larson v. Domestic Foreign Service Commerce Corp., 337 U.S. 682, 709 (1949) (Frankfurter, J., dissenting). Justice Frankfurter wrote in his dissent that:

The course of decisions concerning sovereign immunity is a good illustration

of the conflicting considerations that often struggle for mastery in

the judicial process, at least implicitly. In varying degrees, at different

times, the momentum of the historic doctrine is arrested or deflected by

an unexpressed feeling that governmental immunity runs counter to the

prevailing notions of reason and justice. Id. (53.) Cramton, supra note 3, at 400-01. See Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 697-702 (1949). The Court attempted to clarify the difficulties which arose from the many interpretations of the officer suit. See also id. at 70&.09 (Frankfurter, J. dissenting) (noting the Court's uneven application of the officer suit, and finding that the majority's opinion in Larson will result in further confusion). (54.) Cramton, supra note 3, at 404. (55.) "It is a magnificent historical irony that America, a republic whose independence was declared in a document indicting the sovereign for treasonous acts, should adopt without serious examination the doctrine of sovereign immunity." Travis, supra note 21, at 607 (citation omitted). (56.) 24 Stat. 505 (1887), as amended, 28 U.S.C. (subsections) 1346(a), (b), (d) (1964), cited in Cramton, supra note 3, at 389 n.2. (57.) 28 U.S.C. (subsections)1346(b), 1402(b), 1504, 2110, 2401-02, 2411-12, 2671-80 (1988), cited in Cramton, supra note 3, at 389 n.3. (58.) Block, supra note 1, at 1081 n.71. The passage of the Tucker Act implied that it was in the legislature's province to declaire a waiver. This assumption caused Congress to pass the Federal Tort Claims Act. Id. (59.) Cramton, supra note 3, at 419; see also HART, supra note 26, at 1351 ("Why should not the waiver be construed, if not liberally, at least sensibly--with a sympathetic assumption of an intention of Congress to introduce, in the area in question, a regime of law infused with a spirit of equity?"). (60.) Block, supra note 1, at 1061. Block argued that the only reason the government should not be amenable to suit is if the suit would unduly interfere with the government's day-to-day operations. When a particular suit does not pose such a threat, it should be allowed especially when the government is acting illegally. Id. at 1061-63. Block further argued that this would not lead to a flood of litigation against the government because traditional safeguards such as standing would provide the government with adequate protection. Id. at 1081-86. Professor Cramton also refutes the flood of litigation argument and proposes that reformation of the sovereign immunity doctrine is needed. Cramton, supra note 3, at 427. (61.) Travis, supra note 21, at 617 (footnote omitted). (62.) Block, supra note 1, at 1060-61 n.3. Block asserts that this reason only has compelling weight when the government is young and fragile. Id. at 1061. (63.) "[T]he king-loving nation would be shocked at the spectacle of their Queen turned out of her pleasure-garden by a writ of ejectment against the gardener." United States v. Lee, 106 U.S. 196, 208 (1882). (64.) Id. at 206. (65.) Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907). (66.) Cramton, supra note 3, at 397. See also Block, supra note 1, at 1061 ("[T]he passage of time ... has sapped the strength from Mr. Justice Holmes' explanation .... "). (67.) Cramton, supra note 3, at 398. (68.) Id. (69.) Elizabeth Kondinger Hocking, Note, Federal Facility Violations of the Resource Conservation and Recovery Act and the Questionable Role of Sovereign Immunity, 5 Admin. L.J. 203, 209 (1991) (citing Dean J. Spader, Immunity v. Liability and the Clash of Fundamental Values: Ancient Mysteries Crying Out for Understanding, 61 Chi-Kent L. Rev. 61, 78-79 (1985)). (70.) Id. (citing Spader at 81-82). (71.) 343 U.S. 579 (1952). (72.) Cramton, supra note 3, at 417. (73.) 343 U.S. at 587. (74.) Id. at 582. (75.) Hocking, supra note 69, at 211-12. (76.) An example of this situation would be when the government enters the market as a manufacturer of nuclear weapons. (77.) Besides RCRA and the CWA, see Clean Air Act, 42 U.S.C. (sections) 7418 (b) (1988); Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. (section) 9620 (j) (1988). These waivers vary in scope. (78.) Pub. L. No. 84-159, 69 Stat. 322 (1955), cited in Barry Breen, Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law, 15 Envtl. L. Rep. (Envtl. L. Inst.) 10326, 10327 (1985). (79.) 42 U.S.C. (section) 1857f (a) (Supp. V 1964), cited in Hancock v. Train, 426 U.S. 167, 171 (1976). (80.) 42 U.S.C. (subsections) 7401-7642, cited in Breen, supra note 78, at 10,327. (81.) Hancock v. Train, 426 U.S. 167, 174-75 (1976). (82.) Id. (83.) Id. at 178-80. (84.) Id. at 199. 85. Id. The Court noted the language of the 1970 Clean Air Act stating that:

Each department, agency, and instrumentality of the executive, legislative,

and judicial branches of the Federal Government (1) having jurisdiction

over any property or facility, or (2) engaged in any activity resulting,

or which may result, in the discharge of air pollutants, shall

comply with Federal, State, interstate and local requirements respecting

control and abatement of air pollution to the same extent that any person

is subject to such requirements. Clean Air Amendments of 1970, (sections) 118, 42 U.S.C. 1857f (1970), cited in Hancock, 426 U.S. at 172. The Court reasoned that the statute did not say "all federal . . . requirements to the same extent as any other person." Hancock, 426 U.S. at 182. Because the word "all" was not included, the Court construed this to mean "some" requirements. Id. (86.) Hancock v. Train, 426 U.S. 167, 170 (1976) (citing United States v. United Mine Workers, 330 U.S. 258, 272 (1947)) (footnote omitted). (87.) Id at 179 (citing Mayo v. United States, 319 U.S. 441, 447-48 (1943)) (footnote omitted). (88.) Id. at 179 (citing California ex. rel. State Water Resources Control Board v. EPA, 511 F.2d 963, 968 (9th Cir. 1975)). (89.) Id. at 198. (90.) 42 U.S.C. (sections) 1875f (1970), cited in Hancock, 426 U.S. at 172. (91.) Hancock v. Train, 426 U.S. 167, 172 (1976). (92.) 426 U.S. 200 (1976). Hancock and California were decided on the same day. (93.) Id. at 228. (94.) 33 U.S.C. (sections) 1323 (Supp. IV 1970), cited in California, 426 U.S. at 209. (95.) California, 426 U.S. at 227. (96.) Id. at 227-28. See Hancock v. Train, 426 U.S. 167, 199 (1976). (97.) See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, (sections) 116, 91 Stat. 711 (1977), enacted August 7, 1977. See also Clean Water Act Amendments of 1977, Pub. L. 217 (subsections) 60, 61(a), 91 Stat. 1597, 1598 (1977), enacted December 27, 1977. (98.) "Though this was the intent of the Congress [to waive immunity) in passing the 1972 Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies, has misconstrued the original intent." S. REP. No. 370, 95th Cong., 1st Sess. 67 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392. (99.) Federal Water Pollution Control Act, [sections] 313, 33 U.S.C. [sections] 1311(a) (1988). (100.) Id. [sections] 1342 (1988). (101.) Id. [sections] 1342(a). (102.) Id. [sections] 1319(b). (103.) Id. [sections] 1319(c). (104.) Id. [sections] 1319(d). (105.) Robert V. Percival et al, Environmental Regulation 894 (1992). (106.) 33 U.S.C. [sections] 1342(b)-(d) (1988). (107.) Id. [sections] 1342(b). This means the state must be able to enforce the permits which comply with various sections of the Act. Id. [sections] 1342(b)(1)(a). (108.) Id. [sections] 1342(c)(3). (109.) "No permit shall [be] issue[d] . . . if the Administrator . . . objects in writing to the issuance of such permit as being outside the guidelines and requirements of this chapter." Id. [sections] 1342(d)(2)(13). (110.) 33 U.S.C. [sections] 1319, 1342(i) (1988). (111.) 33 U.S.C. [sections] 1323(a) (1988).

Each department, agency or instrumentality of the executive, legislative,

and judicial branches of the Federal Government (1) having jurisdiction

over any property or facility, or (2) engaged in any activity resulting, or

which may result, in the discharge or runoff of pollutants . . . shall be

subject to . . . . all Federal, State, interstate and local requirements,

administrative authority, and process and sanctions respecting the control

and abatement of water pollution in the same manner, and to the same

extent as any nongovernmental entity . . . . The preceding sentence shall

apply (A) to any requirement whether substantive or procedural . . . ,

(B) to the exercise of any Federal State, or local administrative authority,

and (C) to any process and sanction, whether enforced in Federal,

State, or local courts or in any manner. This subsection shall apply notwithstanding

any immunity . . . under any law or rule of law . . . .

[T]he United States shall be liable only for those civil penalties arising

under Federal law or imposed by a State or local court to enforce an

order or the process of such court. Id. (112.) Id. [sections] 1323(a). (113.) Id. [sections] 1323(a) (emphasis added) quoted in Mike Rothmel, When Will the Federal Government Waive the Sovereign Immunity Defense and Dispose of Its Violations Property, 65 Chi.-Kent L. Rev. 581, 603 (1989). (114.) Rothmel, supra note 113, at 603 citing H.R. Conf. Rep. No. 830 95th Cong., 1st Sess. 93, reprinted in 1977 U.S.C.C.A.N. 4468. (115.) Yales, supra note 10, at 205.

Congress was aware that it could not begin to ameliorate the nation's

environmental predicament without implementing strong measures to

hold the federal government accountable for its share of the problem

. . . If sovereign immunity limited states' enforcement options

against these agencies, that effort would be severely diminished and the

congressional purpose largely undermined. Id. (116.) Rothmel, supra note 113, at 604. "Sections 301 and 402(k) [of the CWA] read together especially support the argument that all permit violations arise under federal law because 301 makes violation of a 402 permit a violation of federal law and 402(k) makes a permit violation a violation of 301 regardless of whether the EPA or the state issued the permit" Id. (117.) See Clean Air Act, 42 U.S.C. [sections] 7604 (1988); Endangered Species Act, 16 U.S.C. [sections] 1540(g) (1988); Resource Conservation and Recovery Act, 42 U.S.C. [sections] 6972(a) (1988); and Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. [sections] 9659 (1988). (118.) Percival, supra note 105, at 995. (119.) Id. (120.) Id. at 996. (121.) Federal Water Pollution Control Act, 33 U.S.C. [sections] 1365(a) (1988). (122.) Id. [sections] 1365(a)(2). (123.) The pertinent language states: "[A]ny citizen may commence a civil action on his own behalf-(1) against 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 the [CWA]." Id. [sections] 1365(a) (emphasis added). (124.) Id. [sections] 1365(c)(3). (125.) 484 U.S. 49 (1987). (126.) Id. at 55-63. (127.) For a discussion of the lower courts' holdings in the wake of the Gwaltney decision, see Percival, supra note 105, 1008-1011. (128.) Jeffery G. Miller, Gwaltney of Smitfield, Ltd. v. Chesapeake Bay Foundation Inc.: Invitation to the Dance of Litigation, 18 Envtl. L. Rep. (Envtl. L Inst.) 10,098, 10,103 (1988). (129.) Id. (130.) For example, the Gwaltney court indicated that identical language then contained in the Clean Air Act, the Resource Conservation and Recovery Act, and the Toxic Substances Control Act authorized only prospective relief from violations. Gwaltney, 484 U.S. at 57. (131.) Clean Air Act Amendments of 1990, Pub. L. 1001-549, [sections] 302(f), 707(a)-(f), 104 Stat. 2574, 2682, 2683 (1990). (132.) See, e.g., the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. [sections] 11046 (1988). See also Percival supra note 105, at 1007. (133.) Mark J. Conner, Government Owned-Contractor Operated Munitions Facilities: Are They Appropriate in the Age of Strict Environmental Compliance and Liability? 131 Mil. L. Rev. 1, 22 (1991). (134.) Id. (citing 28 U.S.C. [sections] 156 (1982)). (135.) Conner, supra note 133, at 24. (136.) Id. at 25. (137.) Id. Obviously this has many drawbacks, as seen in the DOE decision. Further reliance on citizen suits may be wishful thinking. Ironically, as the Ohio Attorney General Celebrezze remarked, "if a state feels like ifs wrestling a 500-pound gorilla when it takes on one of these federal facilities without the assistance of the U.S. EPA, I would submit to you that there are very few citizens or citizen groups . . . that are going to come close to having the resources to do this type of thing." Environmental Compliance by Federal Agencies: Hearings Before the Subcommittee on Oversight and Investigations of the House Committee on Energy and Commerce, 100th Cong., 1st Sess. 151 (1987), cited in Conner, supra note 133, at 25. (138.) State of Ohio v. United States Dep't of Energy, 904 F.2d 1058, 1059 (6th Cir. 1990), rev'd sub nom., United States Dep't of Energy v. Ohio, 112 S.Ct. 1627 (1992). (139.) Id. (140.) 42 U.S.C. [sections] 9609 (1988). (141.) Ohio Rev. Code [sections] 3734. (142.) 42 U.S.C. [sections] 6972 (1988). (143.) 33 U.S.C. [sections] 1365 (1998). (144.) Ohio v. United States Dep't of Energy, 689 F. Supp. 760 (S.D. Ohio 1988), aff'd, 904 F.2d 1058 (6th Cir. 1990), rev'd sub nom., United States Dep't of Energy v. Ohio, 112 S. Ct. 1627 (1992). (145.) Id. at 767. 33 U.S.C. [sections] 1323(a) states that "the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court." (146.) DOE, 689 F.Supp. at 766. (147.) Id. (citing 33 U.S.C. [sections] 1342(k)). (148.) Ohio v. United States Dep't of Energy, 904 F.2d 1058 (6th Cir. 1990), rev'd, 112 S. Ct. 1627 (1992). (149.) 426 U.S. 200 (1976). (150.) Ohio v. United States Dep't of Energy, 904 F.2d 1058, 1061 (6th. Cir. 1990). (151). Specifically, the CWA requires that: state programs be in accordance with the CWA, state programs comply with EPA issued standards, and compliance under an approved state program is compliance with the CWA. Id. (152.) "The introductory section of the Clean Water Act states, ~It is the policy of Congress that the States . . . implement the policy programs under sections 402 and 404 of this Act.'" Id. citing 33 U.S.C. [sections] 1251(b) (emphasis supplied by court). (153.) The relationship included the EPA's ability to bring suit to enforce state permits, the Director of the Ohio EPA's charge to manage Ohio's water pollution program in compliance with the CWA, and the EPA's veto power over the Ohio EPA Director's permitting discretion. Id. (154.) United States Dep't of Energy v. Ohio, 112 S. Ct 1627 (1992). (155.) Id. at 1633 (citing United States v. Mitchell, 445 U.S. 535, 538-39 (1980)). (156.) Id. (citing Ruckleshaus v. Sierra Club, 463 U.S. 680, 685-86 (1983) and McMahon v. United States, 342 U.S. 25, 27 (1951)). (157.) Id. at 1636-37. (158.) 33 U.S.C. [sections] 1365(a) (1988); see infra note 83. (159.) The relevant part of the citizen suit provision dictates that a citizen may bring a civil action "against any person (including . . . the United States . . . ) who is alleged to be in violation of (A) an effluent standard or limitation under this Act or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . ." 33 U.S.C. [sections] 1365(a) (1988). (160.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1634 (1992). (161.) Id. at 1633-36. (162.) 33 U.S.C. [sections] 1319(d). (163.) "The district courts shall have jurisdiction . . . to enforce an effluent standard or limitation, or such an order . . . as the case may be, and to apply any appropriate civil penalties under [the civil penalties provision, 33 U.S.C. [sections] 1319(d)]." DOE, 112 S. Ct. at 1633 (citing 33 U.S.C. [sections] 1365 (a)). (164.) Id. at 1635. (165.) 33 U.S.C. [sections] 1362 (1988). (166.) DOE, 112 S. Ct. at 1635. (167.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1634 (1992). (168.) Id. at 1635 (citation omitted). (169.) 33 U.S.C. 1323(a); See infra note 85. (170.) DOE, 112 S. Ct. at 1636. (171.) Id. (172.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1637 (1992). Contra The Federalist No. 15, 95 (Alexander Hamilton) (Jacob E. Cook ed., 1961):

It is essential to the idea of a law, that it be attended with a sanction;

or in other words, a penalty or punishment for disobedience. If there be

no penalty annexed to disobedience, the resolutions or commands which

pretend to be laws will, in fact, amount to nothing more than advice or

recommendation. (173.) "Each department . . . shall be subject to . . . all . . . process and sanctions respecting the control and abatement of water pollution . . . ." 33 U.S.C. [sections] 1323(a) (1988). (174.) DOE, S. Ct. 112 at 1637. (175.) Id. (176.) Id. (177.) Id. (178.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1637 (1992). Justice Souter's analysis is fundamentally flawed because his distinction between "process and sanctions" and substantive requirements ignores the statutory language which states: "Each . . . instrumentality of the . . . Federal Government . . . shall be subject to all Federal, State, . . . and local requirements." Further, the statute goes on to say: "The preceding sentence shall apply to . . . any requirement whether substantive or procedural (including . . . any requirement respecting permits and any other requirement, whatsoever) . . . ." 33 U.S.C. [sections] 1323(a) (1988) (emphasis added). (179.) DOE, 112 S. Ct. at 1638. (180.) "If by using the phrase ~civil penalties arising under federal law' Congress meant nothing more than coercive fines arising under federal law, it would have been simpler to describe all such penalties as imposed to enforce an order or process . . . ." Id. (181.) 33 U.S.C. [sections] 1319(d) (1988). (182.) DOE, 112 S. Ct. 112 at 1637-39. (183.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1638 (1992). (184.) Id. Of course, these "coercive" fines only start running after the State has been forced to spend considerable amounts of money to bring the facility to court in the first place. The Court also ignores any deterrent effects which the possibility of punitive fines may have, especially in light of Gwaltney where the possibility of punitive fines for past violations disappears if a defendant can come into compliance before the official complaint is filed. Id. (185.) DOE, 112 S. Ct. at 1638. (186.) 28 U.S.C. [sections] 1331 (1988) ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). (187.) Id. (188.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1638-39 (1992). The Court conceded that the "arising under" language is also used in the United States Constitution where it has received a broader construction, but because the Court found that Ohio did not offer any compelling reason why the Constitutional interpretation should have precedent over that of the United States Code, the Court dismissed this argument. (189.) "Perhaps it used it just in case some later amendment might waive the government's immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless." DOE, 112 S. Ct. at 1639. (190.) Id. (191.) Id. at 1640-41 (White, J., dissenting). (192.) Id. at 1641. (193.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1640-41 (1992) (White, J., dissenting). (194.) Id. (195.) Id. (196.) Id. at 1642. (197.) Id. (198.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627, 1643 (1992) (White, J., dissenting). (199.) Id. (200.) Id. (201.) Id. at 1644 (citing Kiefer v. Kiefer Reconstruction Finance Corp., 306 U.S. 381, 394 (1939)). (202.) S. Rep. No. 370, 95th Cong., 1st Sess. 1 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4392. (203.) S. Rep. No. 370 at 4326. (204.) Hancock v. Train, 426 U.S. 167 (1976). (205.) EPA v. California ex. rel. State Resources Control Bd., 426 U.S. 200 (1976). (206.) United States Dep't of Energy v. Ohio, 112 S. Ct. 1627 (1992). (207.) United States v. Lee, 106 U.S. 196, ?21 (1882). See also Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 466 (1793) ("Causes, and not parties to causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she is, as she is painted, blind.").

Rebecca Heintz, Student, Northwestern School of Law of Lewis and Clark College, J.D. expected 1994, B.A. 1990, University of Vermont The author thanks Professor Michael Blumm for his comments.