RL30670:
Constitutional Constraints on Congress' Ability to Protect the Environment
Redistributed as a Service of the National
Library for the Environment*
Robert Meltz
Legislative Attorney American Law Division
September 8, 2000
Summary
Federal protection of the environment must hew
to the same constitutional strictures as any other federal actions. In the
past decade, however, the Supreme Court has invigorated several of these
strictures in ways that present new challenges to congressional drafters of
environmental statutes. This report reviews six of these newly emergent
constitutional areas, with special attention to their significance for current
and future environmental legislation.
First, the nondelegation doctrine, which
restrains Congress from surrendering an unacceptable degree of legislative
discretion to the executive branch, lnl999, the D.C. Circuit became apparently
the first court to bless a nondelegation - doctrine attack on a federal
statute since 1935 - by happenstance, in an environmental (Clean Air Act)
case. The Supreme Court has agreed to hear the case this fall.
Second, the Commerce Clause, which requires
that activities addressed by federal laws enacted under the Clause have a
sufficient nexus with interstate commerce. In 1995, the Supreme Court
sustained a Commerce Clause challenge to a federal law for the first time in
60 years, and did so again in 2000. Thus far, lower courts have rejected such
challenges to federal environmental laws, but this fall the Supreme Court will
review a decision upholding the Corps of Engineers' assertion of Clean Water
Act jurisdiction over "isolated wetlands."
Third, standing to sue in the federal courts.
Article III restricts such standing to those who can demonstrate injury in
fact, causation, and redressability. In a series of decisions during the
1990s, the Supreme Court interpreted these requirements with increasing
stringency, making standing more difficult to establish and lessening the
viability of many potential environmental citizen suits. In a reversal of
direction, however, the Court in 2000 eased the injury in fact and
redressability components.
Fourth, the Takings Clause of the Fifth
Amendment, promising that when the government "takes" property, just
compensation must be paid. The federal environmental program most commonly
attacked in takings suits is the Clean Water Act section 404 wetlands program.
Other federal programs occasionally challenged as effecting takings include
the Endangered Species Act, Surface Mining Control and Reclamation Act, Rails
to Trails Act, and Superfund Act.
Fifth, the Tenth Amendment, assuring that
powers not granted to the Federal Government are reserved to the states.
Invoking this amendment, Supreme Court decisions during the 1990s made clear
that Congress cannot compel the participation of states or state officials in
federal programs. In their wake, one federal statute that attempted to do
precisely that was struck down, but conditions on the grant of federal funds
to the states and other noncoercive approaches to enlisting state cooperation
with federal environmental initiatives have been judicially approved.
Sixth, the Eleventh Amendment, construed
broadly to bar Congress from authorizing private suits against the states.
Because the amendment applies only to suits against states and has several
exemptions, it is likely to be but a minor constraint on congressional
environmental efforts.
Contents
Article I: Nondelegation Doctrine
Background
American
Trucking Ass 'ns v. EPA
Implications
for Federal Environmental Law
Article I: Commerce Clause
Background
Are
Federal Environmental Statutes Vulnerable?
Post-Lopez
Decisions Involving Federal Environmental Statutes
A
Special Case: Isolated Wetlands
Article III: Standing to Sue in Federal Court
Background
Environmental
Standing Before Laidlaw
Friends
of the Earth v. Laidlaw
Implications
for Environmental Citizen Suits
Fifth Amendment: The Takings Issue
Background
Cases
Involving Federal Environmental Statutes
Tenth Amendment: Federal Intrusions on State Sovereignty
Background
States
Rights Reinvigorated: Supreme Court Decisions in the 1990s
Environmental
Cases in the Wake of New York and Printz
When
the State Itself Engages in the Regulated Activity
Eleventh Amendment: Federal Authorization of Private Suits Against
States
Background
Observations
as to Federal Environmental Statutes
Case
Law Involvi0ng Federal Environmental Statutes
Federal efforts to protect the environment must
hew to the same constitutional strictures as any other federal actions. In the
past decade, however, the Supreme Court has invigorated several of these
strictures in ways that present new challenges to congressional drafters of
environmental statutes.
Herewith, we offer a checklist of these newly
important constitutional bounds,1 with discussion of their import for federal
environmental law. (The reader should have little difficulty seeing their
significance for many wow‑environmental federal programs as well.) In
each case, the Supreme Court has redrawn a fundamental boundary line most
often, the line between federal and state power (Commerce Clause, Tenth
Amendment, Eleventh Amendment), but also that between the judiciary and the
political branches (standing to sue), and between the federal government and
the property owner (Takings Clause). Or in the case of the line between
Congress and the executive branch (nondelegation doctrine), the Court may soon
do so. Two of these constitutional areas nondelegation doctrine and the
Commerce Clause lie at the heart of environmental cases that the Supreme Court
has agreed to decide during its upcoming term, beginning October, 2000.
Article
1: Nondelegation Doctrine
Background
The purpose of the nondelegation doctrine, an
aspect of separation of powers, is to restrain Congress from surrendering an
unacceptable degree of legislative‑type discretion to the executive
branch.2 The doctrine can be said to flow from the overall constitutional
structure, but in particular from Article l's vesting of" [a] ll
legislative Powers" in the Congress.3 Not surprisingly, the Supreme Court
eschews a literal reading of "[a]ll," recognizing that Congress
routinely and necessarily delegates legislative powers to noncongressional
bodies. In particular, Congress frequently commits to the specialized
expertise of executive‑branch agencies the task of rulemaking and
standard setting in technical areas — such as environmental control. The
Court has long held that such delegations pass constitutional muster if
Congress gives the agency an intelligible principle to guide its exercise of
that authority.
Except for two decisions in 1935, the Supreme
Court has never agreed with a nondelegation doctrine challenge,4 and the
doctrine "has often been declared deceased."5 Delegations sustained
by the Court have sometimes been extremely broad, including statutes
instructing the FCC to regulate broadcast licensing "in the public
interest,"6 authorizing the Price Administrator to set "fair and
equitable" prices,7 and empowering the Attorney General to regulate drugs
that pose an "imminent hazard to public safety."8 All that the Court
seems to insist on (sometimes) is that Congress employ a delegation which
"sufficiently marks the field within which the Administrator is to act so
that it may be known whether he has kept within it in compliance with the
legislative will."9 Where the congressional standard is combined with
requirements of notice and hearing and agency statements of findings and
considerations, so that judicial review under due process standards is
possible, the constitutional requirements of delegation have been fulfilled.10
American Trucking Ass'ns v. EPA
In 1999, the D.C. Circuit became apparently the
first court to bless a nondelegation‑doctrine attack on a federal
statute since 1935. At issue in American Trucking Associations v. EPA 11 was
EPA's promulgation in 1997 of revised primary national ambient air quality
standards (NAAQSs) for ozone and particulate matter. The 2‑judge
majority found that EPA had construed Clean Air Act section 109 12 —
requiring that primary NAAQSs be set so as to "protect the public
health" "allowing an adequate margin of safety" — so loosely
as to render it an unconstitutional delegation of legislative power.
The D.C. Circuit majority had no quarrel with
the factors used by the agency to assess the public health threat posed by air
pollutants. Rather, said the court, EPA had articulated no "intelligible
principle" for translating the assessment of factors into a particular
NAAQS. Nor, it said, is one apparent from the statute. Translating the impact
factors into a numerical NAAQS requires more, insisted the court, than
asserting that a higher NAAQS would allow greater public health harm, and a
lower NAAQS less harm. This is always true for a non-threshold pollutant,13 but
does not fix the maximum acceptable degree of harm. EPA also argued that at
pollution levels below the promulgated standard, health effects are less
certain. The court rejected this argument as well. "[T]he increasing
uncertainty argument," it said, "is helpful only if some principle
reveals how much uncertainty is too much." Without such a principle, it
insisted, EPA's discretion leaves it free to set a NAAQS at "any point
between zero and a hair below the concentrations yielding London's Killer
Fog."14
The court did not void the relevant CAA
provision, but rather gave EPA an opportunity to develop the constitutionally
required intelligible principle. Such principle, it opined, could not bring in
compliance costs, since it has long been judicially held that EPA may not
consider costs in setting primary NAAQSs. The principle, in theory, could call
for the elimination of all health risks, but that might require EPA to set the
NAAQSs at zero — a solution none of the parties seems to want. And a fixed
probability of encountering effects makes no sense, given the wide diversity
in the seriousness of possible effects. The best the court could suggest was
"a generic unit of harm that takes into account population affected,
severity and probability."15 If EPA finds that no principle is available,
however, it would have to seek ratification of its NAAQSs by Congress.
Five months after the above decision, the D.C.
Circuit denied EPA's petition for rehearing.16 In the petition, EPA argued
that it had now found the "intelligible principle" in the Act, but
the court deemed this offer too late. Only after the agency has applied it in
setting a NAAQS, the court said, could a court say whether the principle
satisfied the nondelegation doctrine. The court also denied EPA's suggestion
for rehearing by the full circuit.17 EPA's petition for certiorari to the
Supreme Court was granted on May 22, 2000.18 A decision is expected in the
first half of 2001.
While EPA doubtless has discretion in setting
NAAQSs, the majority opinion's assertion that such discretion is without
bounds can be questioned. The NAAQS‑ setting provision in the CAA
requires that primary NAAQSs be based on "air quality criteria"
published by the agency, and be set so as to "protect the public
health" allowing an "adequate margin of safety."19 Moreover, as
the dissent noted, the Supreme Court has sustained against nondelegation‑doctrine
challenge statutes with only the most amorphous of standards (examples above).
If these vague standards are constitutionally adequate constraints on agency
discretion, then arguably the CAA's bounds on the setting of NAAQSs are as
well.
It should be noted that American Trucking
Associations does not target the congressional delegation itself, as did
previous delegation decisions. Rather, it implicitly recognizes that agencies
can cure delegation deficiencies in statutes, thus transforming the
nondelegation doctrine into a requirement that agencies constrain their own
discretion.
Implications for Federal Environmental Law
Within the Clean Air Act at least, the impact
of the circuit decision in American Trucking Associations may be confined to
standard setting. The majority was explicit that EPA approvals or disapprovals
of state implementation plans, or adoptions of federal plans, are likely to
pass muster. Such actions, it opined, can be assessed against the NAAQS
itself.20
Moreover, in March, 2000, the D.C. Circuit in
Michigan v. U.S. EPA unanimously refused to find an impermissible delegation
in a different CAA provision."21 This provision allows EPA to require
states to revise their implementation plans whenever it finds they are
inadequate to prevent emissions within the state that "contribute
significantly" to ambient standard non-attainment in another state.22
Invoking this authority, EPA in 1998 required 22 states to revise their plans
to reduce nitrogen oxides (NOx, an ozone precursor) by the amount
accomplishable through controls that remove NOx at a cost of $2000/ton or
less. Though EPA viewed its choice of the dollars per ton cut‑off as
"essentially unbounded," the court found the delegation lawful.23
Unlike cases where the agency's claimed power encompassed "all American
enterprise," here EPA must make a number of fact findings (e.g.,
emissions migrating into another state) that "confined the statute to a
modest role." Delegations of narrow scope, the court said based on its
reading of precedent, can be "effectively standardless."
The Supreme Court's resolution of American
Trucking Associations, when it comes, could have tectonic implications for
federal environmental regulation generally — indeed, for all delegations of
congressional authority to agencies. All future new and revised NAAQSs are
presumably subject to challenge on nondelegation grounds.24 Similarly,
observers have mentioned as vulnerable the federal wetlands program in the
Clean Water Act (based as it is on an amorphous "public interest
review" not chartered by statute) and the expansion of chemical release
reporting requirements under the Emergency Planning and Community
Right‑to‑Know Act. Ultimately, the decision could reach into all
executive‑branch standard setting.
A Supreme Court decision that greatly
constricts congressional delegations to agencies presumably would increase the
required specificity in statutory standards. Such specificity may create added
difficulties in building the requisite member support for congressional bills,
as compared to vague standards that often leave the difficult and politically
intractable issues to the implementing agency. Alternatively, the Court could
endorse the D.C. Circuit's approach, under which an agency receiving a
delegation may itself supply the intelligible principle to guide the exercise
of its discretion.25
Article 1: Commerce Clause
Background
The Commerce Clause of Article I grants
Congress power "[t]o regulate Commerce ... among the several States
...."26 As the basis for much of the environmental, social, and economic
legislation enacted by Congress, the scope of this power is of more than
passing interest. The Supreme Court has often been treated to cases where the
validity of a federal statute hinged on whether the plaintiffs activity, alone
or aggregated with similar activity by others, had a sufficient effect on
interstate commerce to fall within the Commerce Power. Fortunately from
Congress' point of view, the Supreme Court has adopted an expansive
interpretation of the Clause' reach. Indeed, from 1937 until 1995, the Court
rebuffed every Commerce Clause challenge to federal law.
In 1995, Congress' winning streak came to a
halt. In United States v. Lopez 27 the Supreme Court by 5-4 voided a criminal
conviction under the Gun‑Free School Zones Act of 1990 as beyond
Congress' authority under the Commerce Clause.28 The majority explained that
the Court's decisions had identified three categories of activity reached by
the Clause.29 First, Congress may regulate use of the channels of interstate
commerce. Second, Congress may regulate and protect the instrumentalities of,
or persons or things in, interstate commerce, even though the threat may come
only from intrastate activities. And third, the Commerce Clause includes the
power to regulate intrastate activities that alone or in the aggregate
"substantially affect" interstate commerce. As to the last category,
the Court strongly suggested that economic activity may be aggregated to
establish substantial effect, but that other activity may not. Finding that
possession of a gun in a schoolyard failed the last criterion (the only one
that applied), the conviction was reversed.
In 2000, the Court showed that Lopez was no
one‑time aberration. First, in United States v. Morrison,30 it again
held (and again by 5‑4) that Congress exceeded its commerce power
‑ this time in creating a federal civil remedy for victims of
gender‑motivated violence, as part of the Violence Against Women Act.31
As in Lopez, the Court focused on the non-economic, violent nature of the
federally proscribed activity in refusing to aggregate impacts on interstate
commerce under the "substantially affects" category.32 Further, the
Court was unimpressed by congressional findings in the Act asserting such
impacts on interstate commerce. These findings, it said, relied on a line of
reasoning ‑ "but for" causation ‑ that the Court had
previously rejected in the Commerce Clause context. Second, a week after
deciding Morrison, the Court invoked the Commerce Clause again ‑ this
time to construe the federal arson statute narrowly so as to avoid raising
Lopez issues.33
Are Federal Environmental Statutes
Vulnerable?
Beginning with Lopez, concerns were raised that
some federal environmental statutes might be on shaky Commerce Clause
footing.34 Vulnerabilities were suggested in the Superfund Act (cleanup sites
where the contamination remains within one state), Clean Water Act (isolated
wetlands), Safe Drinking Water Act (publicly owned drinking water systems
providing service within one state), and Endangered Species Act (species
located entirely within one state, affected by non-economic activity).
And yet the vast bulk of federal environmental
provisions seems on solid ground. Either the activity regulated clearly has
substantial effect on interstate commerce (e.g., air pollution), or the
statute is explicit that it reaches only activities in, or affecting,
interstate commerce,35 or there are congressional findings that the regulated
activity affects interstate commerce.36 Moreover, case law indicates that the
concept of economic activity, the apparent prerequisite for aggregating the
interstate impacts of intrastate activity, may be broadly construed.37
Finally, the suggestion in Lopez and Morrison that Commerce Clause scrutiny
should be higher where federal regulation intrudes on an area of traditional
state control seems to bode no threat. Environmental law has become a heavily
federalized area in the past half century, including many federal criminal
provisions.38
Post-Lopez Decisions Involving Federal
Environmental Statutes
Since Lopez, lower court decisions have
continued to discern a Commerce Clause foundation in federal environmental
laws, rejecting the idea that Lopez is a broad prescription for narrowing such
programs. Lower courts have sided with the federal government in cases
involving the Superfund Act,39 Clean Air Act,40 Clean Water Act,41 Endangered
Species Act,42 and Migratory Bird Treaty Act.43
Worthy of special note amongst the foregoing
group are the two decisions handed down after Morrison, both rejecting
Commerce Clause challenges.
In Gibbs v. Babbitt,44 the Fourth Circuit - the
same court that struck down the Violence Against Women Act provision on its
way to the Supreme Court 45 (and one generally seen as quite conservative)
‑ held 2‑1 that an aspect of the Endangered Species Act was within
Congress' commerce power. The issue was whether the U.S. could limit the
"taking" of reintroduced red wolves on private land. The Fourth
Circuit invoked the same "substantially affects" criterion on which
Lopez and Morrison hinged, this time finding the criterion satisfied. Unlike
gender‑based violence and guns near schools, it said, the taking of red
wolves is connected with economic enterprise. For one thing, "the
protection of... economic assets is a primary reason for taking the
wolves."46 For another, without the wolves, there would be no
wolf‑related tourism, no scientific research, and no commercial trade in
pelts. Because of this economic nexus, the effect of individual wolf takings
may be aggregated. And when so aggregated, they sufficiently affect interstate
commerce to satisfy the third Lopez prong. The absence of congressional
findings to that effect, said the Circuit, did not preclude this conclusion.
Separately, the Circuit pointed out Lopez'
assertion that "where a general regulatory statute bears a substantial
relation to commerce, the de minimis character of individual instances arising
under that statute is of no consequence.'"47 Evaluating the federal limit
on red wolf takings and individual instances of taking against the overall
congressional goal of restoring red wolves and endangered species generally,
the Commerce Clause was held satisfied.
The other post-Morrison decision is Allied
Local and Regional Manufacturers Caucus v. U.S. EPA.48 There, the D.C. Circuit
held unanimously that Clean Air Act section 183(e), instructing EPA to limit
volatile organic compounds in architectural coatings as part of the Act's goal
of minimizing ground‑level ozone, was within Congress' commerce power.
"[N]one of the considerations that led the [Supreme] Court to find
Congress' authority wanting in Lopez and Morrison," said the Circuit,
"has any application to section 183(e) ...."49 For example, the link
with interstate commerce was clear in light of the interstate nature of ozone
transport.
A Special Case: Isolated Wetlands
Thus far, the most serious Lopez challenge in
the environmental realm involves the Corps of Engineers' assertion of Clean
Water Act section 404 authority 50 over "isolated wetlands." Such
wetlands are unconnected to navigable waters, and thus may lack the interstate
commerce nexus demanded by Lopez. Indeed even before Lopez, the Seventh
Circuit had gone both ways on the issue ‑ ruling first against, then
for, the constitutionality of the Corps' asserting jurisdiction over isolated
wetlands.51 Following Lopez, the Fourth Circuit in United States v. Wilson 52
invalidated Corps regulations asserting jurisdiction over wetlands the use of
which merely "could" affect interstate commerce.
The isolated wetlands question recently leaped
to the fore when the Supreme Court on May 22, 2000 granted certiorari in Solid
Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of
Engineers.53 This case arose when SWANCC asked the Corps of Engineers whether
a site it wished to use for a trash disposal facility contained
"jurisdictional wetlands" ‑ that is, wetlands over which the
Corps asserted jurisdiction under the Clean Water Act wetlands program.
Initially the Corps said no, but after finding that migratory birds used the
ponds on the site, it reversed itself. Under its "migratory bird
rule," the Corps now informed SWANCC it did have jurisdiction.
This requires some background. The Clean Water
Act makes its regulatory programs, such as the wetlands program in section
404, applicable to "waters of the United States."54 The Act does not
define this phrase, but legislative history makes clear that Congress intended
it to apply broadly to the outer limits of Congress' commerce power. Taking
their cue from this expansive legislative history, the Corps of Engineers and
EPA have defined "waters of the United States" to include
"intrastate lakes, rivers, streams ... , or natural ponds, the use,
degradation, or destruction of which could affect interstate or foreign
commerce."55 Now comes the key part. The Corps and EPA have long made it
known that they interpret their definition of "waters of the United
States" to include all waters, including those otherwise unrelated to
interstate commerce, "which are or would be used as habitat by birds
protected by Migratory Bird Treaties" or by "other migratory birds
that cross state lines."56 This is the controversial "migratory bird
rule"‑ more accurately, an interpretive convention.
In the decision below, the Seventh Circuit
found that the migratory bird rule satisfies the "substantially
affects" prong of Lopez. Pointing out that "3.1 million Americans
spent $1.3 billion to hunt migratory birds in 1996, and that about II million
of them traveled across state lines to do so," the court found the
aggregate impact of the destruction of migratory bird habitats to
substantially affect interstate commerce.57 (The court also distinguished
United States v. Wilson, noted above. There, it noted, the issue was whether
the Corps can constitutionally regulate areas that merely "could"
affect interstate commerce. Here, by contrast, there was evidence that the
ponds were actually, not just potentially, used by migratory birds.)
SWANCC's petition to the Supreme Court was
granted just one week after the Morrison decision, raising the question why
the Court didn't simply remand SWANCC to the Seventh Circuit in light of
Morrison. The petition states the issue for the Court as whether the Corps,
consistent with the Clean Water Act and the Commerce Clause, can assert
jurisdiction over isolated intrastate waters solely because those waters do or
potentially could serve as migratory habitat for migratory birds.58 As a
measure of the widespread interest in the case, 21 amicus briefs have been
filed on behalf of SWANCC (the deadline for submission of briefs supporting
the Corps is September 20,2000). A decision by the Supreme Court is expected
during the first half of 2001.
Article III: Standing to Sue in Federal Court
Background
Standing doctrine is concerned with who is a
proper party to raise a particular issue in the federal courts.59 Some
precepts of standing are merely "prudential" - that is, developed by
the courts as part of their inherent power of judicial self‑ management.
Our concern, rather, is with those aspects of standing mandated by Article III
of the Constitution - in particular, that article's confinement of the
jurisdiction of federal courts created under that article (such as district
courts) to "Cases" and "Controversies." The case-o-‑controversy
requirement has long been construed to restrict Article III courts to the
adjudication of real, live disputes; they are not empowered to decide academic
matters. As famously put, standing doctrine demands a plaintiff who has
"such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which
the court so largely depends ...."60
In the Supreme Court's current thinking, this
case‑or‑controversy prerequisite imposes as a constitutional
minimum for standing in an Article III court that the plaintiff show three
things: (1) he/she has suffered an "injury in fact" that is concrete
and particularized (not common to the entire public), and actual or imminent;
(2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely that the injury will be redressed by a favorable
decision.61
Environmental Standing Before Laidlaw
Once upon a time, environmental plaintiffs had
a relatively easy time establishing standing. In Sierra Club v. Morton,62 the
Supreme Court in 1972 held that injury to aesthetic and environmental
wellbeing may constitute "injury in fact" for purposes of
establishing standing to seek judicial review under the Administrative
Procedure Act (APA).63 Moreover, the fact that the injury was "shared by
the many" did not make it less deserving.64 The following year, in what
is generally regarded as the apogee of relaxed standing law, the Court in
United States v. SCRAP 65 found APA standing based on an attenuated argument
by a group seeking to compel the ICC to suspend a proposed freight rate
increase. The group argued that the rate increase would raise the price of
recyclable materials, which would discourage their use, which would result in
increased use of nonrecyclable materials, which would lead to adverse
environmental impacts (e.g., increased litter) on the forests and streams in
the D.C. area that group members used for recreation.
Following Sierra Club and SCRAP, the standing
hurdle remained an easily surmounted one in environmental cases for almost two
decades. In 1983, however, then‑Judge Antonin Scalia argued in a law
review article that federal courts were conferring standing too liberally.66
For one thing, he said, courts need to accord greater weight to the
traditional requirement that plaintiffs alleged injury be a particularized
one, which sets him or her apart from the public at large. For another, he
asserted that courts should be less intrusive into executive branch affairs,
particularly when the plaintiff seeks to vindicate majoritarian interests. The
law of standing, in Judge Scalia's view, should restrict courts to protecting
the minority against the majority. Important here, he seemed to place many
environmental suits in the undesirable
vindication‑of‑the‑majority category.67
When Judge Scalia ascended to the Supreme Court
in 1986, this article assumed some significance. And, indeed,
now‑Justice Scalia authored the majority opinions in each of the Supreme
Court's environmental standing decisions in the 1990s. Not surprisingly, these
opinions reflect his law review article, and define a new phase of the Court's
environmental standing jurisprudence.
All three decisions in this new phase found the
environmental plaintiff to lack standing. In Lujan v. National Wildlife
Federation,68 the Court held 5‑4 that where individual plaintiffs
averred only that they recreated on unspecified portions of public land, there
was insufficient geographic specificity to say they were "adversely
affected" under the APA by a Bureau of Land Management action affecting
particular tracts. Similarly, in Lujan v. Defenders of Wildlife,69 the Court
held 7‑2 that allegations by the environmental group's members that they
intended "some day" to visit an area where endangered species might
be banned by the challenged federal action, lacked the temporal specificity
needed to meet the "injury in fact" prong of Article III standing.
Finally, in Steel Co. v. Citizens for a Better Environment,70 the Court ruled
6‑3 that where the defendant came into compliance during the
60‑day notice period before the citizen suit could be filed, the
plaintiffs failed the "redressability" component of Article III
standing. For example, the civil penalties sought by the suit were payable to
the U.S. Treasury, not the plaintiffs, and so could not redress any lingering
injury plaintiffs may suffer from the former violation.
Friends of the Earth v. Laidlaw
The 1990s drift of the Supreme Court toward an
increasingly narrow concept of standing was abruptly reversed in 2000, through
the Court's decision in Friends of the Earth v. Laidlaw.71
Laidlaw operated a hazardous waste incinerator
that discharged wastewater into the Tyger River in South Carolina. In 1992,
Friends of the Earth (FOE) brought a Clean Water Act (CWA) citizen suit
against Laidlaw,72 alleging that the incinerator had committed hundreds of
violations of its effluent permit. FOE submitted the affidavits of several of
its members alleging that they were injured by the violations in that they
used the river downstream of Laidlaw's point of discharge and had curtailed
their use because of concerns about the effect of the violations on human
health and fish.
In 1997, the district court found that Laidlaw
had violated the mercury limits in its permit 489 times, the monitoring
requirements 420 times, and the reporting requirements 503 times.73 Some of
these violations occurred after the citizen suit was filed. The district court
denied injunctive relief, since there was substantial compliance by the time
the court issued its order, but ordered Laidlaw to pay $405,800 in civil
penalties.
The Fourth Circuit vacated.74 In its view, the
case became moot once the defendant fully complied with its permit and FOE
declined to appeal the district court's denial of injunctive relief. FOE was
only seeking a higher civil penalty than the district court imposed, and under
Steel Co., civil penalties do not meet redressability requirements since they
are not payable to the plaintiff. Nor could plaintiffs recover their attorneys
fees, since the CWA citizen suit provision limited such recovery to instances
where the plaintiff prevailed.
On January 12, 2000, the Supreme Court
reversed. Writing for a 7 justice majority, Justice Ginsburg held that the
Fourth Circuit erred in concluding that a citizen suit claim for civil
penalties must be dismissed as moot when the defendant, after filing of the
suit, comes into compliance.
The majority opinion first resolves the Article
III standing question. As for injury in fact, it ruled that the relevant
showing is injury to the plaintiff, not injury to the environment. Thus, it
was sufficient that FOE members lived downstream from the point of discharge
and were concerned enough by the defendant's discharges that they curtailed
their use of the river. Plaintiffs did not have to demonstrate harm to the
environment. As for redressability, the Court declared that all civil
penalties have some deterrent effect. Indeed, Congress had said so in the
specific context of CWA enactment and "[t]his congressional determination
warrants judicial attention and respect."75 Steel Co. does not dictate
otherwise, said the Court, since that decision denied standing for citizen
suitors seeking civil penalties for violations that had abated by the time of
suit. Steel Co. did not reach the issue here: standing to seek penalties for
violations ongoing at such time. Thus, plaintiffs had standing.
Turning to the mootness issue (again, raised by
the defendant's coming into compliance during the district court's
deliberations), the Court charged the Fourth Circuit with confusing standing
and mootness. The confusion was understandable, the Court conceded, given its
past characterization of mootness as "standing set in a time frame."
In Laidlaw, the Court backed away from that description. It noted, for
example, that the prospect of future noncompliance may be too speculative to
support standing, but not too speculative to overcome mootness. Then, too, the
underlying purpose of the two doctrines counsels greater hesitancy in
dismissing a case on mootness, as opposed to absence of standing, grounds.
Standing doctrine acts to ensure that the scarce resources of the federal
courts are devoted to disputes in which the parties have a concrete interest.
In contrast, by the time mootness is an issue, the case may have been in the
courts for years, making abandonment without compelling reason a wasteful
practice.
That the facility in question had since been
closed, however, gave the majority pause. The closure might indeed moot the
case if this event made it "absolutely clear" that Laidlaw's permit
violations could not reasonably be expected to recur. This factual issue, not
explored by the district court, was found to be open for consideration on
remand.
Finally, the Court declined to resolve the
attorneys' fees issue ‑ an important one because so many environmental
suits would not be brought without some likelihood of recovering fees from
defendants. FOE argued that it is entitled to attorneys' fees on the theory
that it was the "prevailing party" under the CWA citizen suit
provision because it was the "catalyst" that brought about Laidlaw's
compliance. Suggesting that the catalyst theory is viable in general, the
Court nonetheless refused to address its validity in this case. That
determination, it concluded, was initially for the district court.
Implications for Environmental Citizen Suits
The Laidlaw decision is universally seen as a
significant win for the plaintiff side of the environmental citizen suit,
likely to make such suits much easier to bring.76 Moreover, it now appears
that only a minority of the justices are sympathetic to Justice Scalia's view
that the Constitution prohibits a private party from enforcing a public law.
Some specific implications of Laidlaw are:
1. It will be easier for plaintiffs to demonstrate the "injury in
fact" component of standing. The Laidlaw majority
asserts that where the injury to plaintiff results from a reasonable concern,
there is little need for plaintiff to
demonstrate injury to the environment as a predicate. This will alter the
current situation, where plaintiffs'
attorneys were expending substantial effort (lab analysis of water samples,
ecological testing, witness depositions) just to get past this
threshold issue in the case.
Laidlaw has already borne fruit. One month later, the en bane Fourth
Circuit reversed the panel decision
in Friends of the Earth v. Gaston Copper Recycling Corp., which had denied
standing to bring a CWA citizen
suit.77 The en banc court noted that on the facts presented, denying standing
"encroaches on congressional authority by erecting barriers to
standing so high as to frustrate citizen enforcement
of the Clean Water Act." The citizen suit provision at issue, it
observed, uses language that cannot be
reconciled with the strict standard of injury employed in the decisions below.
To Gaston Copper's defense that
plaintiff had not adequately proved environmental degradation to show injury
in fact for Article III purposes, the court held up Laidlaw's focus on injury
to the plaintiff.
"[Plaintiffs] reasonable fear and concern about the effects of
Gaston Copper's discharge, supported by
objective evidence ... constitutes injury in fact."
Laidlaw also calls into question the no‑standing holding in
Public Interest Research Group of New Jersey,
Inc. v. Magnesium Elektron, Inc.,78 yet another CWA citizen‑suit
decision. There, the Third Circuit
correctly noted that the mere knowledge that a company has polluted is
insufficient to confer standing, since
this is a generalized grievance shared by the public at large. In conflict
with the future Laidlaw decision,
however, the court went on to conclude that standing requires a showing of
actual, tangible injury to the
environment. This aspect of Magnesium Elektron no longer appears to be good
law.
2. It will be easier for plaintiffs seeking civil penalties to satisfy
the "redressability" component of standing,
even though the penalties are not payable to the plaintiff. The Court's
statement that "all civil penalties
have some deterrent effect" is a powerful one for citizen suitors. There
are currently several citizen suit
provisions that allow claims for money penalties payable to the U.S. Treasury.
Note also: because the Court seems inclined to defer to congressional
findings, it may be useful in the
future for proponents of new citizen suit provisions authorizing civil
penalties to accompany them with
assertions of deterrent effect.
3. The majority retained the traditional view that makes it hard for a
defendant to obtain a dismissal based on
mootness once a plaintiff has established standing.
4. On remand, the resolution of the attorneys' fees issue in Laidlaw
will be important, since many citizen
suit law firms are funded largely through recovery of attorney's fees from
defendants. The Supreme Court's
endorsement of the "catalyst theory" suggests that the district
court may be positively disposed to
awarding fees in this case.
5. Two facts suggest that Laidlaw's reversal of the 1990s trend toward
higher standing hurdles may be more than
temporary. First, the Court did not have to decide the standing question at
all in the case; mootness was the
principal issue presented, and the petitioner's briefs were focused there.
That Justice Ginsburg reached out to
resolve the standing issue when it was unnecessary to do so points
to a desire on the part of at least some justices to move the pendulum
back to some extent. Second, it may be
significant that the majority opinion commanded fully 7 votes, including some
justices normally on the
no‑standing side of the Court's decisions.
Following Laidlaw, the Court again found
standing in Vermont Agency of Natural Resources v. United States.79 This case
involved the specialized context of qui tarn suits, but has some relevance to
environmental citizen suits. Under the False Claims Act, a private person may
bring suit against an entity that submits a false money claim to the federal
government. Such suit, says the act, is brought "for the person and for
the United States Government "80 and, if successful, entitles the
plaintiff (called the "relator") to a portion of any proceeds from
the action. These are the defining characteristics of a "qui tam
action." But since the relator himself suffers no injury supporting a
finding of injury in fact, the issue arose whether a qui tarn relator has
standing.
The Vermont Agency Court found an adequate
basis for the relator's standing by viewing the relator as a partial assignee
of the United States' claim against the alleged false claimant. Citing the
doctrine that the assignee of a claim may assert the injury in act suffered by
the assignor, the holding of relator standing directly followed. The
interesting question is whether this rationale opens the door for
congressional redefinition of citizen‑suit plaintiffs as assignees of
federal law‑enforcement interests. Concededly, however, the liberal
standing rules in Laidlaw undercut the need for such an effort.
Fifth Amendment: The Takings Issue
Background
The Takings Clause of the Fifth Amendment
states: [N]or shall private property be taken for public use, without just
compensation." Reams have been written, by courts and commentators alike,
about when a government action sufficiently interferes with private property
as to constitute a "taking" within the meaning of the Takings
Clause, requiring that the property owner be paid.
The rise of the takings issue coincides with
the rise in government regulation of property use from the advent of
comprehensive municipal zoning in the early twentieth century, to the
widespread use of environmental, historic preservation, growth control, and
other interventions today. In 1978, a New York City historic preservation
ordinance prompted the first takings decision of the modem doctrinal era.81
Since that year, almost every Supreme Court term has included at least one
"takings" case. In the Congress and many state legislatures,
property rights partisans have given the issue a legislative as well as
judicial face, by introducing "property rights bills."
The Court's current jurisprudence of the
Takings Clause can be simply stated, though not so simply applied. There are
three basic types of takings.
First and most commonly pressed by property
owners is the regulatory taking claim. The regulatory taking claim asserts
that notwithstanding the absence of any physical intrusion by government on
the property, or any government appropriation, a taking has been effected
solely by the government's restriction of the property's use. There are two
possibilities. If the regulation deprives the property of all economic use,
then a taking will automatically be found ‑ provided that the regulation
could not have been imposed under background principles of nuisance and
property law existing at the time the property was acquired.82 This is called
the "total taking" rule. If, as more commonly occurs, the regulation
removes only a portion of the property's use or value, then an ad hoc
three‑factor balancing test is used, assessing the government action for
its (1) economic impact on the property, (2) degree of interference with the
property owner's "reasonable investment‑backed expectations,"
and (3) "character."83 The Supreme Court has done little by way of
explicating these factors, though we do know that the degree of economic
impact needed for a regulatory taking must be rather severe. Also, the impact
of the government action on the property must be assessed with reference to
the "parcel as a whole," not solely the regulated portion. A wide
spectrum of federal actions has sparked regulatory takings claims, including
bankruptcy laws, controls on health care costs, required funding of pension
plans and other employee benefits, settlement of private international claims,
and, our interest here, environmental regulation.
The second type of taking is the physical
taking. A physical taking claim asserts that the government, directly or
through third parties, has effected a physical invasion of private property.
Again, there are two subtypes. If the invasion is deemed
"permanent," it will be held a taking in almost all instances.84 If
the invasion is only temporary, the three‑factor regulatory taking test
above is invoked, under which the invasion may or may not be a taking (but
generally not). Federal actions that often bring on physical takings claims
include flooding from federal dams and other water projects, over flights of
federal aircraft, and the rails‑to‑trails program.
The third type of taking is the exaction
condition on a development permit. Here, the government does not forbid a land
use, but extracts a concession in return for its approval. The takings
criterion for such exaction conditions is two‑fold. They must
substantially advance the same government purpose as justified the permit
program in question.85 And the burden imposed on the property owner by the
exaction must be "roughly proportional" to the burden that the
property owner's proposed project would have on the community.86
Exactions‑based takings claims are numerous at the local level.
Curiously, however, the test has never been invoked by a court deciding a
taking claim against the United States, though some federal activity, such as
the mitigation conditions imposed on wetlands permits, arguably falls within
the test's reach.87
Before the court even reaches the takings claim
in a case, there are numerous threshold hurdles that the plaintiff must
surmount. Is the case ripe; that is, was there a "final" government
decision? Is the statute of limitations met? Did the plaintiff own the
property as of the date of the alleged taking? Many takings cases founder on
these shoals.
Cases Involving Federal Environmental
Statutes
Though the takings issue most often arises in
disputes over local land‑use regulation, a few federal environmental
programs have been implicated. The federal environmental program most commonly
attacked in takings suits is the Corps of Engineers/EPA wetlands permitting
scheme under the Clean Water Act known as the "404 program."88
Almost the entire spectrum of takings issues has arisen at some point in these
wetlands cases.89
Two fact scenarios have been common in the
wetlands/takings cases. In the first, the wetland owner is denied a 404 permit
and argues that as a result, the property of which the wetland is a part has
suffered a severe decline in economic use or value.90 Establishing ripeness
here has proved much easier than for landowners dealing with local land use
agencies. The latter must deal with frequent judicial demands that following
denial of the owner's initial proposal, he/she must return to the land use
agency with scaled down or reconfigured proposals, so the court can ascertain
the degree of development that will be accepted. By contrast, the Court of
Federal Claims (where most takings claims against the United States must be
brought) has thus far always accepted the first permit denial f on the
merits as indicating the Corps' disinclination to permit any development
whatsoever, making subsequent applications by the landowner futile.91
Once past the ripeness hurdle,
permit‑denied plaintiffs have enjoyed some success in convincing the
Court of Federal Claims that a taking occurred under either the "total
taking" rule or the three-factor balancing test. Five section 404 permit
denial cases to date have found takings,92 while a somewhat greater number
have been unsuccessful. Prominent issues in these wetlands/takings cases
include first, whether a taking claim can be maintained as regards a wetland
purchased after the 404 regulatory scheme was enacted in 1972 (the decisions
say that purchasers following enactment of a regulatory scheme lack investment
backed expectations that the property can be developed, and so cannot assert a
taking based on restrictions under that scheme). A second prominent issue is
how to define the "parcel as a whole" to be used in the takings
analysis; e.g., whether to include acreage sold off prior to the permit denial
(depends on the facts), or contiguous subdivision lots owned by the plaintiff
(generally yes). A third recurring issue is how great the drop in market value
must be as a result of the permit denial to support a finding of a taking
(recent decisions say that a 60-70% value loss is sufficient, a lowering of
the threshold suggested in earlier takings cases 93).
The second common scenario in the
wetlands/takings cases arises when actions of the Corps cause delay in
commencing development of a parcel, though eventually the project proceeds.
Such delays are addressed through claims of temporary, rather than permanent,
takings. Most of the delay cases involve property owner objection to the time
taken by the Corps to process permit applications. Courts hold that the key
factor in the takings analysis is whether the wait was, under the
circumstances, unreasonable or extraordinary.94 The extraordinariness inquiry
entails a look at whether the delay was unduly protracted in light of the
complexity of the regulatory scheme, whether the owner failed to take actions
that might have shortened the processing time, and other circumstances. To
date, federal courts have held that waiting periods for section 404 permits up
to two years did not, under the circumstances presented, work a taking.95
Another delay scenario is when a Corps action is withdrawn because of agency
error. Viewing such delays as part of government decision-making, the courts
have again applied the extraordinary delay standard and rejected all takings
claims so far.96
Many federal environmental programs outside the
wetlands realm also have generated regulatory takings decisions but far fewer
per program. The Endangered Species Act,97 despite its high profile in the
property rights debate, has produced only a few reported takings decisions,
and none in which the property owner succeeded."98 Surface mining
restrictions under the Surface Mining Control and Reclamation Act 99 have
prompted a few claims again, with very few successfu1.100
Federal environmental laws that have produced
physical taking rulings include, first, the rails-to-trails program.101 Here,
the holder of the fee title underlying the railroad right of way asserts a
permanent physical occupation of his/her land when the right of way is taken
over by recreational trail users. If the railroad holds only an easement for
railroad use, the fee title holder wins.102 Second, the Superfund program has
been found to cause a physical taking where monitoring equipment and
government inspections are imposed on an unwilling owner of contaminated (or
possibly contaminated) property.103 The benefits accruing to the plaintiff
from the government‑funded action, however, may be viewed by the court
as offsetting the compensation otherwise owed, producing an award of zero
dollars - taking notwithstanding.104
Tenth
Amendment:
Federal Intrusions on State Sovereignty
Background
The Tenth Amendment states: "The powers
not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the
people." Once dismissed by the Supreme Court as "but a
truism,"105 the Court today discerns in these words a bulwark of states'
rights in our federal-state system of government. On other occasions, the
Court has derived the same protection for states' rights by inquiring whether
an act of Congress is authorized by one of the powers delegated to Congress in
Article I, such as the commerce power. "[T]he two inquiries," says
the Court, "are mirror images of each other."106
The invigoration of the Tenth Amendment has
played out in cases dealing with Congress' ability to regulate the states
directly; instances where a federal mandate tells a state or state official
what that entity must do. Initially, the context was whether Congress could
subject states to the same restrictions it applies to private parties. In a
series of decisions beginning in the 1960s, the Court agonized over this
issue, eventually concluding in 1985 that its earlier effort to immunize the
"traditional governmental functions" of the states from federal
mandates was "both impractical and doctrinally barren."107 For the
most part, it indicated, states must seek protection from the impact of
federal regulation in the political process, not in any limitations imposed by
the Tenth Amendment or the Commerce Clause. Prophetically, a dissent by
then‑Justice Rehnquist predicted a future time when the Court would
restore those abandoned limitations.108
States Rights Reinvigorated: Supreme Court
Decisions in the 1990s
In the 1990s, the pendulum swung back toward
state immunity; in a related, but different, context. The newer cases asked
whether Congress can compel state participation in the implementation of
Commerce Clause-based federal programs. The answer was no.
The first decision was New York v. United
States,110 invalidating a federal law requiring that any state failing to
provide for permanent disposal of low‑level radioactive waste generated
within its borders must take title to the waste. The Court held that Congress
may not "commandeer the legislative processes of the States by directly
compelling them to enact and enforce a federal regulatory program."111 At
the same time, it hastened to add, Congress may "encourage" states
to regulate in a particular way. For example, Congress may, under its Spending
Power,112 attach conditions to the receipt of federal funds (at least where
they bear some relationship to the purpose of the federal spending). Or
Congress may offer states the choice between regulating an activity according
to federal standards or having state law preempted by federal regulation. The
Court specifically noted the Clean Water Act, Resource Conservation and
Recovery Act, and Alaska National Interest Lands Conservation Act as examples
of the preemption route.113
In the second decision, Printz v. United
States,114 the Supreme Court voided a provision of the Brady Handgun Violence
Protection Act requiring the chief law enforcement officer of a local
jurisdiction to do a background check on would‑be purchasers of
handguns. The Brady Act thus commanded such officers to participate in
administering a federal regulatory scheme. The Court concluded, as it had in
New York, that the United States may not compel state involvement in a federal
program. "Congress," said the Court, "cannot circumvent [New
York's prohibition on compelling sovereign acts] by conscripting the State's
officers directly."
Environmental Cases in the Wake of New York
and Printz
Since New York and Printz, research reveals
only one successful Tenth Amendment challenge to a federal environmental
statute. Acorn v. Edwards 115 addressed a Safe Drinking Water Act (SDWA)
provision that required each state to establish a program, meeting federal
standards, to assist schools in remedying potential lead contamination in
their drinking water systems. Failure to do so subjected the states to federal
civil enforcement. Such "conscription of state legislative
functions," said the court, "is clearly prohibited by [New
York]." Congress is free to regulate drinking water coolers in interstate
commerce directly, but not through the states as conduits to the people. The
SDWA provision, it concluded, deprives the state of the option of declining to
regulate drinking water systems, and is therefore unconstitutional.
Acorn, it need hardly be said, was an easy case
for the challenger. In another post‑New York/Printz decision, the Fourth
Circuit in Virginia v. Browner 116 failed to find the direct compulsion of
state action that the Supreme Court decisions prohibit. Virginia was a state
challenge to EPA's use of sanctions against it, required under the Clean Air
Act, when the state submitted an inadequate stationary source permitting
scheme. In sustaining EPA's cut‑off of certain federal highway funds to
the state, the decision echoes the settled view that reasonable conditions on
the grant of federal funds are not tantamount to compulsion, even when they
have significant consequences for a state.11'7 Arguing unconstitutionality
here is particularly difficult now that New York has specifically endorsed
reasonable funding conditions as a means of encouraging state participation in
federal programs.118
A second federal environmental statute technique
blessed by Virginia is sanctions triggered by state inaction, but applying
solely to private activity. More specifically, EPA had imposed on the state
the Clean Air Act's "offset sanction," under which the quantity of
existing air emissions that has to be eliminated for every ton of new
emissions (from a new factory or modified existing one) was set at 2:1;
greater than the ratio that otherwise would apply. While this sanction may
burden the state's citizens (individuals proposing to build or modify a
factory), the court held that they do not burden the state as a government,
and thus do not offend the Tenth Amendment.119 Third and finally, federal
implementation of a federally desired program within a state when the state
fails to act, another common approach, is constitutional. As above, the state
is not compelled to regulate.120 For the same reason, the mirror image of this
arrangement — ending the federal program within the state if the state
adopts its own program meeting federal criteria — is also constitutional.121
When the State Itself Engages in the
Regulated Activity
There appears to be one circumstance where the
United States may regulate the state directly: where the state itself engages
in an activity that Congress seeks to regulate under the commerce power. In
the area of federal air pollution regulation, for example, this may occur when
a state operates a fleet of police cars, with attendant emissions. Or when a
county operates a solid waste landfill. 122 Here, federal regulation burdens
the state not as sovereign government, but solely in its
"enterprise" capacity. Such burdens do not implicate the federalism
concerns raised by federal encroachments on state sovereignty.123
A recent and unanimous Supreme Court opinion
affirms this sovereign/enterprise distinction. In Reno v. Condon,124 the Court
was faced with the federal Driver's Privacy Protection Act, a statute that
regulates the disclosure of personal information contained in the records of
state motor vehicle departments. Many states sell such information, generating
significant revenues. The statute was inoffensive to Tenth Amendment
federalism principles, held the Court: it regulates states as owners of
databases, rather than requiring states in their sovereign capacity to
regulate their own citizens. It does not compel states to enact any laws,
unconstitutional under New York v. United States, or require state officials
to assist in administering a federal program, unconstitutional under Printz v.
United States.
Things blur a bit when the act which
constitutes the regulated activity is an act of the state government in its
sovereign capacity. In Strahan v. Coxe,125 a state's regulation of commercial
fishing was held likely to be a "taking" of Northern Right Whales
prohibited under the Endangered Species Act. Here, said the court, it is
proper to conclude that the state ' s scheme cannot continue insofar as it is
inconsistent with the preemptive federal act. As long as the court's order
does not command specific regulatory action by the state, it will be held not
to have "commandeered" the state government as forbidden by New
York. Thus, the court could order the state to consider means by which fishing
practices might be modified to avoid authorizing takings in state waters, but
could not order the state to adopt specific modifications.
Eleventh
Amendment:
Federal Authorization of Private Suits Against States
Background
The Eleventh Amendment is yet another tool the
current Supreme Court has used to embody its concept of federalism. In
pertinent part, the amendment provides: "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 ...." Eleventh Amendment jurisprudence seeks to reconcile
the competing demands of state sovereign immunity and the supremacy of federal
power. The amendment stands for the proposition that the Supremacy Clause 126
of the U.S. Constitution notwithstanding, not all exercises of congressional
power override state sovereign immunity.
Modern Eleventh Amendment jurisprudence takes a
broad view of the amendment's reach ‑ or, more accurately, of the
principles of state sovereign immunity that the Eleventh Amendment
exemplifies, but does not exhaust.127 While the amendment's text speaks only
to suits against states by citizens "of another state," the Supreme
Court has disallowed federally authorized suits against unconsenting states
even when brought by citizens of the same state.128 While the amendment's text
speaks only to suit in federal court, the Court has barred suits in state
court as well.129 And while the amendment speaks only to suits by
"Citizens," the Court has prohibited suits by recognized Indian
tribes,130 federal corporations,131 and foreign countries.132 But note: the
amendment does not apply to municipal corporations or other governmental
entities that are not an arm of the state; importantly, Congress may authorize
private suits against such entities.133
Though the Amendment and the constitutional
principle of state sovereign immunity cover a wide waterfront, there are
exceptions.134 First, while it is held that state immunity extends to state
agencies and state officials who act on behalf of the state, Ex parte Young
allows a federal court to prospectively enjoin a state official from violating
federal law.135 The legal fiction behind this principle is that a suit against
a state officer is not a suit against the state when an injunction is sought
against an illegal action, since an officer is seen as not acting on behalf of
the state when he or she acts illegally. Conversely, Ex parte Young doctrine
does not cover retroactive relief that requires the payment of funds from the
state treasury; e.g., imposing civil money penalties for past noncompliance.
136
The Supreme Court recently has narrowed the Ex
parte Young doctrine, but only minimally ‑ as yet. The more important of
its narrowing decisions, at least for environmental purposes, came in Seminole
Tribe of Florida v. Florida.137 There, the Court held that petitioner's claim,
which was barred by the Eleventh Amendment, also could not be brought as an
Exparte Young suit against the state governor. The Court reasoned that
"where Congress has prescribed a detailed remedial scheme for the
enforcement against a state of a statutorily created right, the court should
hesitate before casting aside those limitations and permitting an action
against a state officer under Exparte Young."138 lmportant here, the Court
explicitly found the Clean Water Act citizen suit provision and Emergency
Planning and Community Right-to-Know Act not to be such a remedial scheme,
since they authorize enforcement directed at entities other than the state
‑ respectively, "any person" or the "Governor."139
A second exception to the Eleventh Amendment
prohibition is state consent. A state may waive the protection afforded it
under the Eleventh Amendment by consenting to be sued.140 Consent may take the
form of the state's voluntary appearance in federal court and defense of the
case on the merits,141 a state statute in which it consents to be sued, or a
clear statement of a state's agreement to administer a federal‑state
program that imposes federal standards on the state. But mere receipt of
federal funds cannot establish consent.
A third exception is congressional abrogation
of state sovereign immunity. Congress, says the Supreme Court, may abrogate
state immunity pursuant to section 5 of the Fourteenth Amendment. That
amendment, adopted after the Civil War, bars states from depriving persons of
life, liberty, or property without due process of law, or denying to any
person equal protection of the laws. Section 5 authorizes Congress "to
enforce, by appropriate legislation" the amendment. By contrast, Congress
may not abrogate state immunity under its Article I authorities, which include
the environmentally important commerce power.142
When acting under proper constitutional
authority, Congress, if it intends to abrogate state sovereign immunity, must
make its intention "unmistakably clear in the language of the
statute."143 The mere fact that a statute was passed under the Fourteenth
Amendment is not enough to show that Congress intended to circumvent state
sovereign immunity.144 Also, for legislation to be an "appropriate"
remedy under section 5 of the Fourteenth Amendment, it must be plausibly cast
as responsive to, or designed to prevent, unconstitutional behavior and not be
simply an effort to define the substance of the Amendment. To that end, there
must be a "congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end."145 To establish
such congruence and proportionality, a court must ensure that: (1) the
legislation reaches primarily conduct likely to be unconstitutional under some
Fourteenth Amendment guarantee, and (2) Congress has made well‑supported
findings that there exists a widespread pattern of abuse by the states as to
that guarantee.146
A final exception to states' Eleventh Amendment
immunity is suit against the state by the United States. Unlike suits by
nonfederal parties, the Eleventh Amendment does not block suits against states
by the United States.147
Yet another Eleventh Amendment challenge will
be heard by the Supreme Court in its upcoming term; this time involving an
Americans with Disabilities Act suit against a non-consenting state. 148
Observations as to Federal Environmental
Statutes
Since the Eleventh Amendment and the broader
constitutional embodiment of state sovereign immunity assure that non-consenting
states cannot be subjected to private suit through the Commerce
Clause, such suits under most federal environmental statutes cannot
constitutionally proceed. Most such statutes: the Clean Air Act, Clean Water
Act, Superfund Act, Resource Conservation and Recovery Act, etc. were enacted
pursuant to that very Clause. Indeed, in the leading decision rejecting use of
the Commerce Clause for such abrogations, the Supreme Court had to overrule
its earlier decision allowing private suits against the states under the
Commerce Clause‑based Superfund Act.149
Notwithstanding, these Eleventh Amendment-related
constraints appear not to present a major hurdle for Congress in its efforts
to tackle environmental problems. Recall that we are talking only about suits
against states, not political subdivisions of states or nongovernmental
actors. And we are not talking about suits that seek to coerce the states to
enact or administer federal programs. That option was already lost to Congress
through the Commerce Clause cases. Here, we are dealing solely with the
species of state conduct that Congress, under the Commerce Clause, remains
free to regulate: non‑sovereign activity. As noted earlier, such actions
might include the use of state vehicles (e.g., police cars) and the operation
of landfills. The impact of the new Eleventh Amendment jurisprudence falls
solely in this environmentally marginal area.
Moreover, it can hardly be said that states are
now free, in these non-sovereign activities, to violate standards imposed
under federal environmental laws. As noted above, state officials still could
be constrained by injunctions obtained in private suits demanding compliance
with federal laws. And, states could still be sued by the Federal Government
(or, as presumably would occur only rarely, by other states). An interesting
question in this regard is whether Congress could authorize private suits
against state non-sovereign activity, Eleventh Amendment notwithstanding, by
characterizing them statutorily as being on behalf of the United States. A
similar question recently was presented to the Supreme Court involving a
private qui tarn suit against a state under the federal False Claims Act, but
was sidestepped by the Court when it construed the act as not extending to
states.150
To the extent that private suits against states
are desired by Congress, consideration might be given to encouraging states to
waive sovereign immunity by making such waiver a condition to receiving
delegation of the federal program, or to receiving federal money. As to the
latter, the Court has upheld the power of Congress, in the exercise of its
spending power, to condition its grant of funds to the states upon their
taking specified actions that Congress could not mandate them to take.151 In
view of the Court's commitment to state immunity, however, some judicial
curbing of Congress' power in this area cannot be ruled out.
The citizen suit provisions found in most
federal environmental statutes make the Eleventh Amendment limit on suits
against the states explicit. Typical language in environmental
citizen‑suit provisions is that of the Clean Air Act:
[A]ny person may commence a civil action on his
own behalf... against any person (including (i) the United States, and (ii)
any other governmental instrumentality or agency to the extent permitted by
the Eleventh Amendment to the Constitution) who is alleged to have violated
... or to be in violation of (A) an emission standard or limitation under this
[Clean Air Act], or (B) an order issued by the [EPA] Administrator or a State
with respect to such a standard or limitation.152
Of course, the Eleventh Amendment would have
constrained suits under this provision even without the explicit mention.
Case Law Involving Federal Environmental
Statutes
Several Eleventh Amendment decisions stem from
Clean Water Act (CWA) citizen suits against states or state officials. These
suits have all permitted suits against state officials for injunctive relief,
citing Ex parte Young. An early decision is Committee to Save Mokelumne River
v. East Bay Utilities District, holding that the Eleventh Amendment does not
bar suit against the members of the California Regional Water Quality Control
Board for prospective injunctive relief.153 Following the Supreme Court's
narrowing of Ex parte Young in a 1996 decision,154 the Ninth Circuit has
continued to look kindly on such CWA citizen suits against state officers,
noting the approving mention of the CWA in that decision's discussion of
Exparte Young.155 But as Eleventh Amendment jurisprudence plainly requires, a
CWA citizen suit against the state itself, or one against a state official for
civil penalties based on past violations of the CWA, has been held barred.156
In another CWA citizen suit, Eleventh Amendment
immunity was denied to the New York State Thruway Authority on the ground that
it was not an "arm of the state."157
In Prisco v. State of New York,158 the Supreme
Court's new teaching that Congress cannot abrogate state sovereign immunity
under a commerce power‑based statute such as the Superfund Act was
echoed by a federal district court. Prisco dismissed on Eleventh Amendment
grounds a landfill owner's Superfund claims against state defendants alleged
to have run the landfill as a sting operation to uncover organized crime
involvement in the waste industry. In addition, the court dismissed plaintiffs
Superfund Act claims against individual state officials because they sought
monetary relief, not covered by Ex parte Young. By contrast, plaintiff's
Resource Conservation and Recovery Act (RCRA) citizen suit seeking prospective
injunctive relief against state officials was held constitutional. Like the
CWA citizen suit provision, RCRA was deemed not to be the sort of
"detailed remedial scheme for the enforcement against a state of a
statutorily created right" found by the Supreme Court to bar Ex parte
Young suits.159
In a somewhat specialized waste case, a
district court found inoffensive to the Eleventh Amendment an interstate
commission's suit against a state for violating a radioactive waste
compact.160 The amendment, said the court, is inapplicable because the state
never possessed the sovereignty to form the compact without congressional
authorization. Also, when it signed the compact, the state consented to suit
by the commission if it did not act in good faith.
Finally, an important ruling in an Endangered
Species Act (ESA) case holds that the Exparte Young exception does not limit
courts to simply ordering a cessation of the state official's unlawful
activity.161 Other equitable relief appropriate to achieving that end is also
proper. The unlawful activity in question was the state's implementation of
its commercial fishing regulatory scheme, under which the state was issuing
permits for use of gear harmful to the endangered Northern Right Whale. This
activity, in the view of the lower court, constituted a "take" of
the whale by the state, unlawful under the ESA. The scope-of-relief ruling
enabled the court to affirm a lower‑court injunction requiring state
officials to apply for an incidental-take permit under the ESA for Northern
Right Whales, and to prepare a proposal for restricting the use of
fixed‑fishing gear in state waters to minimize harm to such whales.162
Footnotes
1 Constitutional areas that are not
"newly" important for federal environmental lawmaking, and
accordingly are not discussed in this report, include the Property Power in
Article IV (authorizing congressional regulation of the public lands),
preemption doctrine under the Article VI Supremacy Clause (defining when a
federal statute will be held to have displaced state regulation), and the
Fourth Amendment (limiting the use of administrative searches).
2 The nondelegation doctrine is not the only
constitutional constraint upon Congress' ability to delegate its powers. The
principle of unconstitutional vagueness, and due process, also have been
invoked. See, e.g., United States v. L. Cohen Grocery Co‑,255 U.S.
81,92(1921). The Line Item Veto Act case, Clinton v. City of New York, 524
U.S. 417 (1998), found that abdications of legislative authority to the
executive branch could also be barred by the Presentment Clause in Article I,
section 7.
3 U.S. Const. art. I, § 1 (emphasis added).
4 See Mistretta v. United States, 488 U.S. 361,
371‑379 (1989) (reviewing case law).
5 Consumer Energy Council of America v. FERC,
673 F.2d 425,448 n.82 (D.C. Cir. 1982).
6 National Broadcasting Co. v. United States,
319 U.S. 190 (1943).
7 Yakus v. United States, 321 U.S. 414,
426-427 (1944).
8 Touby v. United States, 500 U.S. 160 (1991).
9 Yakus, 321 U.S. at 425.
10 Id. at 426.
11 175 F.3d 1027 (D.C. Cir. 1999), petition for
rehearing denied, 195 F.3d 4 (D.C. Cir. 1999),petition for cert. granted, 120
S. Ct. 2003 (May 22,2000) (No. 99‑1257), 120 S. Ct. 2193 (May 30, 2000)
(No. 99‑1426).
12 42 U.S.C. § 7409.
13 According to the court, "EPA regards
ozone definitely, and [particulate matter] likely, as nonthreshold pollutants,
i.e., ones that have a possibility of adverse health impact (however slight)
at any exposure level above zero." 175 F.3d at 1034.
14 Id. at 1037.
15 Id. at 1039.
16 195 F.3d 4 (D.C. Cir. 1999).
17 Id.
18 120 S. Ct. 2003 (No. 99‑1257). On May
30, 2000, the Court granted the American Trucking Association's separate
petition for certiorari. 120 S. Ct. 2193 (No. 99‑1426). This latter
petition raises an important, but purely statutory, issue, and thus is beyond
our scope here.
19 CAA § 109(b)(l); 42 U.S.C. § 7409(b)(l).
20 175 F.3d at 103 7. The court made this point
in order to distinguish away an early decision rejecting a nondelegation
attack on the Clean Air Act. South Terminal Corp. v. EPA, 504 F.2d 646,
676‑677 (I‑"' Cir. 1974). To be sure, this decision arose
from EPA's adoption of an implementation plan, rather than a NAAQS.
Nonetheless, the opinion contains a broad endorsement of the limits on EPA's
NAAQS‑setting authority, and thus is in tension with American Trucking
Associations.
21 213 F.3d 663, 680‑681 (D.C. Cir.
2000).
22 CAA § 110(a)(2)(D); 42 U.S.C. §
7410(a)(2)(D).
23 The court remanded in part on other grounds,
however.
24 Nondelegation challenges to existing NAAQSs
would seemingly be time barred. CAA section 307(b)(l) instructs that petitions
for review of primary and secondary NAAQSs must be filed within 60 days after
notice of promulgation appears in the Federal Register. 42 U.S.C.§
7607(b)(l).
25 Cf. Gabriel Clark. The Weak Nondelegation
Doctrine and American Trucking Ass'ns v. EPA, 2000 Brigham Young Univ. L. Rev.
627 (distinguishing "strong nondelegation," limiting Congress'
ability to make the delegation, from "weak nondelegation" used in
American Trucking, allowing agency to articulate the intelligible principle,
and arguing for adoption of the latter) with Michael R. Dimino, D. C. Circuit
Revives Nondelegation Doctrine ... Or Does It?, 23 Harv. J. L. & Pub.
Pol'y 581 (2000) (arguing that strong nondelegation is only constitutionally
defensible approach).
26 U.S. Const. art. I, § 8, cl. 3.
27 514 U.S. 549 (1995).
28 See generally Kenneth R. Thomas, United
States v. Lopez: The Limits of Federal Power Under the Commerce Clause, CRS
Report 95‑1047 (1995).
29 514 U.S. at 558-559.
30 120 S. Ct. 1740 (2000).
31 See T.J. Halstead, United States v.
Morrison, the Supreme Court Declares 42 U.S.C. 13981 Unconstitutional, CRS
Report No. RS 20584 (May 22, 2000).
32 "[l]n those cases where we have
sustained federal regulation of intrastate activity based upon the activity's
substantial effects on interstate commerce, the activity in question has been
some sort of economic endeavor." Id. at 1750.
33 Jones v. United States, 120 S. Ct. 1904
(2000).
34 See generally John P. Dwyer, The Commerce
Clause and the Limits of Congressional Authority to Regulate the Environment,
25 Envtf. L. Rptr. 10421 (1995); J. Blanding Holman, Note, After United States
v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive
Commerce Clause Attack?, 15 Va. Envtl. L. J. 139 (1995).
35 See, e.g.. Federal Hazardous Substances Act,
15 U.S.C. § 1263; Toxic Substances Control Act, 15 U.S.C. §
2602(3)‑(4); Migratory Bird Treaty Act, 16 U.S.C. § 705; Clean Water
Act, 33 U.S.C. § 1342(a); Hazardous Materials Transportation Act, 49 U.S.C.
§ 5102(1). In other instances, the statute may not explicitly impose such a
constraint, but may limit its application to entities that are presumptively
engaged in interstate commerce ‑ for example, manufacturers and
distributors. See, e.g.. Clean Air Act, 42 U.S.C. § 7511b(e)(1)(C).
36 See, e.g.. Toxic Substances Control Act, 15
U.S.C. § 2601(a)(3); Marine Mammal Protection Act, 16 U.S.C. § 1361(5). Such
findings are persuasive, even if not controlling. Lopez, 514 U.S. at
562‑563.
37 See, e.g., Gibbs v. Babbitt, 214 F.3d 483,
491 (4th Cir. 2000).
38 See, e.g., Gibbs, 214 F.3d at 500‑501
(noting long history of federal protection of natural resources, including
endangered species). The predecessor of the Clean Air Act was first enacted in
1955; the predecessor of the Clean Water Act in 1948.
39 USA v. Olin Corp., 107 F.3d 1506 (11th Cir.
1997); Cooper Industries, Inc. v. Agway, 43 Env't Rptr. (Cases) 1933 (N.D.N.Y.
1996); United States v. Alcan Aluminum Corp., 1996 WL 637559 (N.D.N.Y. 1996);
United States v. NL Industries, Inc., 936 F. Supp. 545 (S.D. III. 1996); Nova
Chemicals v. GAF Corp., 945 F. Supp. 1098 (E.D. Tenn. 1996).
40 Allied Local and Regional Manufacturers
Caucus v. U.S. EPA, 215 F.3d 61 (D.C. Cir. 2000) (EPA rule limiting volatile
organic compounds in architectural coatings).
41 United States v. Hartsell, 127 F.3d 343 (4th
Cir. 1997) (Act's coverage of discharges into public sewer systems).
42 Gibbs, 214 F.3d 483 (application of Act's
"taking" prohibition to red wolves on private land); National Ass'n
of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (2‑1), cert.
denied, 524 U.S. 937 (1998) (application of "taking" prohibition to
Delhi Sands Flower‑ Loving Fly, a subspecies located entirely in one
state); Building Industry Ass'n of Superior California, 979 F. Supp. 893
(D.D.C. 1997) (listing of various species of fairy shrimp as endangered or
threatened).
43 United States v. Bramble, 103 F.3d 1475 (9th
Cir. 1997).
44 214 F.3d 483 (4th Cir. 2000).
45 Brzoncala v. Virginia Polytechnic Inst., 169
F.3d 820 (4th Cir. 1999), aff'd sub nom. United States v. Morrison, 120 S. Ct.
1740 (2000).
46 214 F.3d at 492.
47 14 U.S. at 558.
48 215 F.3d 61 (D. C. Cir. 2000).
49 Id. at 83.
50 3 U.S.C. § 1344.
51 Hoffman Homes, Inc. v. U.S. EPA, 999 F.2d
256 (7th Cir. 1993) (reversing earlier decision of circuit).
52 133 F.3d 251 (4th Cir. 1997).
53 191 F.3d 845 (7th Cir. 1999), petition for
cert. granted, 120 S. Ct. 2003 (May 22, 2000) (No. 99‑1178).
54 CWA § 502(7); 33 U.S.C. § 1362(7).
55 33 C.F.R. § 328.3(a)(3).
56 51 Fed. Reg. 41,206, 41,217 (1986) (in a
preamble).
57 191 F.3d at 850.
58 68 U.S.L.W. 3505.
59 This section of the report is adapted from
Robert Meltz, The Pendulum Swings Back: Standing Doctrine After Friends of the
Earth v. Laidlaw, CRS Report No. RS20497 (March 14,2000).
60 Baker v. Carr, 369 U.S. 186, 204 (1962).
61 A recent Supreme Court statement of this
constitutional standing test is in Vermont Agency of Natural Resources v.
United States, 120 S. Ct. 1858, 1861‑1862 (2000).
62 405 U.S. 727 (1972)
63 The APA requires that those seeking review
under that statute have "suffer[ed] legal wrong," or be
"adversely affected" or "aggrieved," by the challenged
agency action. 5 U.S.C. § 702. Courts typically assume a congruence between
the APA test and the "injury in fact" test for Article III standing.
64 To be sure, the Court denied the Sierra Club
standing, because the Club had failed to allege that it or its members were
among the injured. This deficiency was easily remedied by the Club's amending
its complaint to allege recreational harm to those of its members who visited
the affected area.
65 412 U.S. 669 (1973).
66 Antonin Scalia, The Doctrine of Standing as
an Essential Element of the Separation of Powers, 17 Suffolk L. Rev. 881
(1983).
67 Also underlying Justice Scalia's narrow view
of standing is his dissent in Morrison v. Olson, 487 U.S. 654, 697 (1988).
There, he opined that the Constitution permits only the executive branch to
enforce a public law.
68 497 U.S. 871 (1990).
69 504 U.S. 555 (1992).
70 523 U.S. 83 (1998).
71 120 S. Ct. 693 (2000).
72 CWA § 505(a); 33 U.S.C. § 1365(a).
73 956 F. Supp. 588, 600‑601 (D.S.C.
1997). There is some overlap in the monitoring and reporting violations, and a
significant number of them involve only technical errors in the forms used to
report compliance.
74 149 F.3d 303 (4th Cir. 1998). An earlier ORS
report addresses this Fourth Circuit ruling: Robert Meltz, The Future of the
Citizen Suit After Steel Co. and Laidlaw, CRS Report No. RS20012 (Jan.
5,1999).
75 120 S. Ct. at 706.
76 See, e.g., Michael P. Healy, Standing in
Environmental Citizen Suits: Laidlaw'5 Clarification of the
Injury‑in‑Fact and Redressability Requirements, 30 Envtl. L. Rptr.
10455 (2000).
77 204 F.3d 149 (4th Cir. 2000) (en bane).
78 123 F.3d 111 (3rd Cir. 1997).
79 120 S. Ct. 1858 (2000).
80 31 U.S.C. § 3730(b)(l) (emphasis added).
81 Penn Central Transp. Co. v. New York City,
438 U.S. 104 (1978).
82 Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992).
83 Penn Central, 438 at 124.
84 Loretto v. Teleprompter Manhattan CATV, 458
U.S. 419 (1982).
85 Nollan v. California Coastal Comm'n, 483
U.S. 825 (1987).
86 Dolan v. City of Tigard, 512 U.S. 374
(1994).
87 See Robert Meltz, Wetlands Regulation and
the Law of Property Rights "Takings "at 24‑ 25, CRS Report No.
RL30423 (Feb. 17, 2000) (hereinafter Wetlands Regulation).
88 CWA § 404; 33 U.S.C. § 1344.
89 For more detailed treatment, see Wetlands
Regulation, supra note 87.
90 The Corps' mere designation of a parcel as
within its wetlands permit jurisdiction cannot by itself be a taking, since it
leaves open the possibility that the permit, if applied for, will be granted.
United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). The same
holds true when the Corps orders construction on a wetland to cease and desist
until the owner secures a permit. Tabb Lakes, Inc. v. United States, 10 F.3d
796 (Fed. Cir. 1993).
91 See, e.g., Cooley v. United States, 46 Fed.
Cl. 538 (2000); Cristina Inv. Corp. v. United States, 40 Fed. Cl. 571 (1998);
City Nat'1 Bank v. United States, 30 Fed. Cl. 715 (1994); Formanek v. United
States, 18 Cl. Ct. 785 (1989); Beure‑Co. v. United States, 16 Cl. Ct. 42
(1988); Loveladies Harbor, Inc. v. United States, 15 Cl. Ct. 381 (1988).
92 In reverse chronological order: Cooley v.
United States, 46 Fed. Cl. 538 (2000); Florida Rock Industries, Inc. v. United
States, 45 Fed. Cl. 21 (1999); Loveladies Harbor, Inc. v. United States, 28
F.3d 1171 (Fed. Cir. 1994); Bowles v. United States, 31 Fed. Cl. 37 (1994);
Formanek v. United States, 26 Cl. Ct. 332 (1992).
93 Florida Rock Industries, Inc. v. United
States, 18 F.3d 1560, 1567 (Fed. Cir. 1994) (62‑ 1/2% value loss might
be sufficient to take), on remand, 45 Fed. Cl. 21(1999) (73.1% value loss
found to be taking).
94 See, e.g.. Walcek v. United States, 44 Fed.
Cl. 462,467 (1999); Norman v. United States, 38 Fed. Cl. 417, 427 (1997)
(collecting cases).
95 See, e.g., 1902 Atlantic, Ltd. v. United
States, 26 Fed. Cl. 575 (1992); Dufau v. United States, 22 Cl. Ct. 156 (1990).
96 See, e.g., Tabb Lakes, Inc. v. United
States, 10 F.3d 796 (Fed. Cir. 1993).
97 16 U.S.C. §§ 1531‑1544.
98 See, e.g., Christy v. Model, 857 F.2d 1324
(9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989).
99 30 U.S.C. §§ 1201-1328.
100 See, e.g., Whitney Benefits, Inc. v. United
States, 926 F.2d 1169 (Fed. Cir.), cert. denied, 502 U.S. 952 (1995).
101 16 U.S.C. §1247(d).
102 See, e.g., Preseault v. United States, 100
F.3d 1525 (Fed. Cir. 1996).
103 Hendler v. United States, 952 F.2d 1364
(Fed. Cir. 1991).
104 Hendler, 38 Fed. C1. 611 (1997).
105 United States v. Darby, 312 U.S. 100, 124
(1941).
106 New York v. United States, 505 U.S. 144,
156 (1992).
107 Garcia v. San Antonio Metropolitan Transit
Auth., 469 U.S. 528, 557 (1976).
108 Id. at 580.
109 The Court had flirted with the question of
compelled state participation earlier, in 1981, and hinted in dictum at its
unconstitutionality. Hodel v. Virginia Surface Mining & Reclamation Ass'n,
452 U.S. 264, 288 (1981).
110 505 U.S. 144 (1992).
111 Id. at 161.
112 U.S. Const. art. I, § 8, cl. 1.
113 505 U.S. at 167-168.
114 521 U.S. 898 (1997).
115 81 F.3d 1387 (5th Cir. 1996), cert. denied,
521 U.S. 1129 (1997).
116 80 F.3d 869 (4th Cir. 1996), cert. denied,
519 U.S. 1090 (1997).
117 80 F.3d at 881‑882 (Clean Air Act
highway funds sanction is reasonably limited, hence is not outright coercion).
Earlier decisions in accord are Pacific Legal Fdn. v. Costle, 14 Envt. Rptr.
(Cases) 2121,2128 (E.D. Cal.), affirmed, 627 F.2d 917 (9th Cir. 1980), cert.
denied, 450 U.S. 914 (1981) (also sustaining the Clean Air Act highway funds
sanction), and Texas Landowners Rights Ass'n v. Hams, 453 F. Supp. 1025
(D.D.C. 1978), affirmed without opinion, 598 F.2d 311 (D.C. Cir. 1979)
(National Flood Insurance Program).
118 505 U.S. at 167.
119 80 F.3d at 882 (Clean Air Act emissions
offset sanction).
120 Id. at 882‑883 (Clean Air Act federal
permit program implementation).
121 Id., noting approval of this technique by
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981).
122 Whether contemporary Tenth Amendment
jurisprudence applies to political subdivisions of states, as well as the
states themselves, appears not to have been directly addressed by the Supreme
Court. It may be noted, however, that the plaintiffs in Printz were county
sheriffs.
123 This state‑as‑polluter
exemption raises serious constitutional questions, however, if broadly
construed to embrace state actions or inactions that cause pollution only
indirectly, such as building highways. Brown v. EPA, 566 F.2d 665, 672 (9th
Cir. 1977).
124 120 S. Ct. 666 (2000).
125 127 F.3d 155 (I" Cir. 1997), cert.
denied, 528 U.S. 830, 978 (1998).
126 The Supremacy Clause provides: "This
Constitution, and the Laws of the United States which shall be made in
Pursuance thereof... , shall be the supreme Law of the Land, and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of
any state to the Contrary notwithstanding." U.S. Const. art. VI.
127 As stated in Alden v. Maine, 119 S. Ct.
2240, 2254 (1999): The Eleventh Amendment confirmed rather than established
sovereign immunity as a constitutional principle; it follows that the scope of
the States' immunity from suit is demarcated not by the text of the Amendment
alone but by fundamental postulates inherent in the constitutional design.
128 Hans v. Louisiana, 134 U.S. 1 (1890).
129 Alden v. Maine, 119 S. Ct. 2240 (1999).
130 Blatchford v. Native Village of Noatak, 501
U.S. 775 (1991).
131 Smith v. Reeves, 178 U.S. 436 (1900).
132 Principality of Monaco v. Mississippi, 292
U.S. 313 (1934).
133 Mt. Healthy School Dist. v. Doyle, 429 U.S.
274, 280 (1977).
134 These are neatly summarized in Alden v.
Maine, 119 S. Ct. 2240, 2267‑2268 (1999).
135 209 U.S. 123 (1908). The restriction of Ex
parte Young suits to state officials accused of violating federal law derives
from Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984).
136 Pennhurst State School v. Halderman, 465
U.S. 89, 102‑103 (1984).
137 517 U.S. 44,73‑76 (1996). The other
narrowing opinion is Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 287
(1997).
138 517 U.S. at 74 (emphasis added).
139 17U.S. at 75 n.17.
140 Pennhurst State School & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984).
141 Clark v. Barnard, 108 U.S. 435 (1883).
142 Seminole Tribe of Florida v. Florida, 517
U.S. 44(1996). The type of relief sought against the state (e.g., prospective
injunctive relief rather than retroactive monetary relief) is irrelevant to
whether Congress has power to abrogate the state's immunity. So is the fact
that a congressional enactment extends to the states a power withheld from
them by the Constitution. Id. at 58.
143 Kimel v. Florida Bd. of Regents, 120 S. Ct.
631, 640 (2000), quoting Dellmuth v. Muth, 491 U.S. 223, 227‑228 (1989).
The "unmistakably clear" standard is met by statutory authorization
of suits against the states; it is unnecessary for the statute to state in so
many words that waiver of state sovereign immunity is intended. See, e.g.,
Seminole Tribe, 517 U.S. at 56‑57; Kimel, 120 S. Ct. at 640‑642.
144 Seminole Tribe, 517 U.S. 44.
145 Boerne, Texas v. Flores, 521 U.S. 507
(1997); Kimel, 120 S. Ct. 631.
146 In Kimel, for example, the Court held the
Age Discrimination in Employment Act (ADEA) not to satisfy the test because
(1) the ADEA prohibited substantially more state employment practices than
would be considered unconstitutional under the Fourteenth Amendment, and (2)
the ADEA's legislative history failed to identify any pattern of
unconstitutional age discrimination by the states. As to the latter item,
"isolated statements clipped from floor debates and legislative
reports" are insufficient. 120 S. Ct. at 649. In Florida Prepaid
Postsecondary Education Expense Board v. College Savings Bank, 119 S. CT. 2199
(1999), an even sparcer legislative history led the Court to the same holding
with regard to federally authorized patent‑infringement suits against
the states. An illustrative lower court decision is Sims v. University of
Cincinnati, 219 F.3d 559 (6th Cir. 2000) (invalidating Family Medical Leave
Act after two‑part analysis above).
147 Alden v. Maine, 119 S. Ct. 2240, 2267
(1999), citing Principality of Monaco v. Mississippi, 292 U.S. 313,
328‑329 (1934) (collecting cases).
148 Garrett v. Univ. of Alabama at Birmingham
Bd. of Trustees, 193 F.3d 1214 (11th Cir. 1999), cert. granted, 120 S. Ct.
1669 (Apr. 17, 2000) (No. 99‑1240).
149 Seminole Tribe of Florida v. Florida, 517
U.S. 44, 66 (1996), overruling Pennsylvania v. Union Gas Co., 491 U.S. 1
(1989) (plurality opinion).
150 Vermont Agency of Natural Resources v.
United States ex rel Stevens, 120 S. Ct. 1858 (2000).
151 See, e.g.. South Dakota v. Dole, 483 U.S.
203 (1987).
152 Clean Air Act § 304(a)(l); 42 U.S.C. §
7604(a)(1). Emphasis added.
153 13 F.3d 305, 309‑310 (9th Cir. 1993),
cert. denied,513 U.S. 873 (1994). To similar effect is Pennsylvania Envtl.
Defense Found, v. Mazurkiewicz, 712 F. Supp. 1184 (M.D. Pa. 1989).
154 See text accompanying notes 137-138 supra.
155 NRDC v. California Dep't ofTransp., 96 F.3d
420, 424 (9th Cir. 1996) ("Congress implicitly intended to authorize
citizens to bring Ex parte Young suits against state officials with the
responsibility to comply with clean water standards and permits"). See
text accompanying note 139 supra.
156 NRDC, 96 F.3d at 423.
157 Mancuso v. New York State Thruway
Authority, 86 F.3d 289 (2nd Cir.), cert. denied,519 U.S. 992 (1996).
158 1996 Westlaw 596546 (S.D.N.Y. Oct. 16,
1996) (not published in official reporters).
159 See text accompanying notes 137‑139,
supra. The RCRA citizen suit against state officials was dismissed, however,
on the ground that they could not be held liable for actions of subordinates
acting outside the scope of their employment.
160 Entergy Arkansas, Inc. v. Nebraska, 68 F.
Supp. 2d 1093 (D. Neb. Sept. 15, 1999); 68 F. Supp. 2d 1104 (D. Neb. Sept. 22,
1999).
161 Strahan v. Coxe, 127 F.3d 155 (1st Cir.
1997), cert. denied, 528 U.S. 830, 978 (1998).
162 Ordering state officials to perform
affirmative acts under a federal scheme raises Tenth Amendment issues as well,
of course. The particular order in this case was found inoffensive to the
Tenth Amendment, on the ground that it did not order the state to take
specific regulatory actions. See discussion in Tenth Amendment section.
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