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Department of Energy v. Ohio

ELR Citation: 22 ELR 20804
Nos. Nos. 90-1341, -1517, 503 U.S. 607/34 ERC 1489/(U.S., 04/21/1992) Aff'd in part, rev'd in part & remanded

The U.S. Supreme Court rules that Congress has not waived the federal government's sovereign immunity from liability for civil fines imposed by a state for past violations of the Federal Water Pollution Control Act (FWPCA) or the Resource Conservation and Recovery Act (RCRA). Ohio sought both state and federal civil penalties of $250,000 against the U.S. Department of Energy (DOE) for the Agency's past violations of the FWPCA and RCRA, and of state laws enacted to supplant the federal statutes, in operating its uranium enrichment facility in Fernald, Ohio. Before the district court ruled on DOE's motion to dismiss, the parties proposed a consent decree to settle all claims except the issue of whether sovereign immunity precludes imposing civil penalties on the federal government for past violations of the FWPCA or RCRA. Subsequently, the district court held that both statutes waived federal sovereign immunity from punitive fines, by their federal facilities and citizen suit sections, but on appeal the Sixth Circuit held that Congress waived immunity from punitive fines in the FWPCA's federal facilities section and RCRA's citizen suit section, but not in RCRA's federal facilities section.

The Court first notes that any waiver of the government's sovereign immunity must be unequivocal and is to be construed strictly in favor of the sovereign. The Court holds that although the FWPCA and RCRA citizen suit provisions authorize states to bring civil suits against the United States and other persons, the exclusion of the United States from among the "persons" who may be fined in the Acts' civil penalties sections must be incorporated when applying the civil penalties provisions in citizen suits. The incorporations must be read as encompassing all the terms of the penalty provisions, including their limitations. While both the FWPCA and RCRA define "person" to cover states, subdivisions of states, municipalities, and interstate bodies, neither statute defines "person" to include the United States. This omission must be seen as pointed when so many governmental entities are specified, and thus renders the civil penalties sections inapplicable to the United States. Moreover, inclusion of the United States in the statutes' citizen suit definitions of "person" goes only to the clauses subjecting the United States to suit, but not to civil fine. Thus, incorporation of the civil penalties sections into the statutes' citizen suit sections authorizes punitive fines when a polluter other than the United States is brought to court by a citizen, while the citizen suit sections explicitly authorize suit against the United States only for other coercive sanctions.

The Court next rules that the FWPCA's federal facilities section provides no waiver of the federal government's sovereign immunity from civil penalties. First, although FWPCA §313(a) subjects the federal government to all state requirements, process, and sanctions, use of the term "sanction" is broad enough to cover coercive and punitive fines, and does not necessarily imply that a reference to punitive fines is intended. Section 313(a) uses "sanctions" twice in conjunction with judicial process, which is characteristically enforced by prospective, coercive measures. In addition, §313(a) distinguishes "process and sanctions" from substantive "requirements," which may be enforced either by coercive or punitive means. Thus, there is good reason to infer that Congress was using "sanction" in its coercive sense, to the exclusion of punitive fines. Second, §313(a)'s final waiver proviso, which addresses fines authorized under a U.S. Environmental Protection Agency (EPA)-approved state permit program, does not encompass civil penalties, because the proviso's language calls for a coercive penalty "imposed by a state . . . court to enforce [its] order." Moreover, case law exists against the contention that the proviso's "arising under federal law" modifier is broad enough to include penalties prescribed by EPA-approved state statutes supplanting the FWPCA. Because tension exists between this expansive but uncertain waiver, and the waiver is clear for coercive fines in §313(a)'s antecedent text, the tension is resolved by the requirement that waivers be unequivocal and the rule that waivers be narrowly construed.

Finally, the Court rules that RCRA's federal-facilities section, which subjects the federal government to all state requirements, both substantive and procedural, and provides that the United States is not immune from any process or sanction of any court regarding enforcement of any such injunctive relief, is most reasonably interpreted to include substantive standards and the coercive means for implementing those standards, excluding punitive penalties. This conclusion is supported by the textual indications of the kinds of requirements meant to bind the federal government, which refer either to mechanisms requiring review for substantive compliance or to mechanisms for enforcing substantive compliance in the future. In stark contrast, the statute fails to mention any mechanism for penalizing past violations.

Three justices, concurring in part and dissenting in part, would hold that Congress intended to waive the federal government's sovereign immunity from civil penalties under the FWPCA's federal facilities and citizen suit provisions.

[The circuit court's decision is published at 20 ELR 20953 and the district court's decision is published at 18 ELR 20586. Related pleadings and briefs are digested at ELR PEND. LIT. 65912, 66053, 66153, and 66160.]

Counsel for Petitioner
Robert L. Klarquist, Jaques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Respondent
Jack Van Kley, Ass't Attorney General
30 E. Broad St., 17th Fl., Columbus OH 43266
(614) 466-3840