|From:||Vicky Peters <firstname.lastname@example.org>|
|Date:||Fri, 19 Mar 1999 15:12:12 -0800 (PST)|
|Subject:||Waiver of Sovereign Immunity|
Next friday, March 26, the National Association of Attorneys General will be voting on the attached resolution. Please contact your AG's office, and urge them to support the resolution. RESOLUTION ON CLARIFICATION OF SOVEREIGN IMMUNITY WAIVERS IN ENVIRONMENTAL LAWS Background Statement In 1990, a Task Force made up of representatives from the offices of various state Attorneys General and Governors published a report entitled "From Crisis to Commitment: Environmental Cleanup and Compliance at Federal Facilities." This report briefly explained the problem of environmental contamination at sites under the jurisdiction of federal agencies, and included recommendations for improving compliance and expediting cleanup. The very first of these recommendations was, "Congress should amend applicable federal laws to clearly waive federal sovereign immunity from the application and enforcement of federal and state environmental laws." In 1992 the United States Supreme Court decided in Ohio v. DOE that the waivers of sovereign immunity in the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) did not subject federal agencies to penalties for past non-compliance. Congress responded by passing the Federal Facilities Compliance Act (FFCA) which strengthened the waiver of sovereign immunity in RCRA, thereby partially overruling the Court's decision. Four years later it passed a similar waiver in the Safe Drinking Water Act (SDWA). However, Ohio v. DOE remains binding precedent for enforcement actions under the CWA. Although the sovereign immunity waiver in the Clean Air Act (CAA) is worded differently from RCRA or CWA, it has similarly been interpreted by federal district courts to apply only to penalties for ongoing violations. The issue is currently pending before the 6th circuit. The sovereign immunity waiver in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not track the language in the FFCA. At least one court has found that it does not waive sovereign immunity for penalties; three courts have found that it does not waive immunity for state law claims at sites that are no longer owned or operated by the federal agency. In addition, federal agencies argue that the language does not actually waive sovereign immunity from state cleanup laws at all; it merely requires federal agencies to comply with substantive provisions to the extent the agencies determine such provisions to be applicable or relevant and appropriate. Consultation and "quasi-approval procedures" are not considered substantive. The Environmental Protection Agency is also hamstrung under current law because Executive Order 12580 prohibits it from issuing orders to sister agencies that are out of compliance unless it first obtains permission from the Department of Justice, the same Department of Justice that represents the polluting agencies. Legislation that has already been introduced in the House of Representatives would address the deficiencies that are currently in CERCLA by amending the language to track the FFCA. Soon bills will be introduced in the House and Senate to strengthen the waiver in the CWA. As of yet, a waiver clarification for the CAA has not been introduced. The resolution identifies weaknesses in the current environmental laws, and supports legislation that would enable States to enforce their environmental laws against polluting federal agencies to the same extent as they do against private parties. NATIONAL ASSOCIATION OF ATTORNEYS GENERAL Proposed Spring Meeting March 24-26, 1999 RESOLUTION CLARIFICATION OF SOVEREIGN IMMUNITY WAIVERS IN FEDERAL ENVIRONMENTAL LAWS WHEREAS, the Attorneys General of the States have significant responsibilities in implementing and enforcing environmental laws; WHEREAS, the federal government is the largest generator and disposer of hazardous substances in the country; WHEREAS, federal agencies should be held to the same standard of environmental compliance as are private entities and individuals; WHEREAS, protection of the health and welfare and the environment of the citizens of the United States is not possible without ensuring that federal agencies comply with environmental laws; WHEREAS, the Attorneys General are hampered in their ability to ensure such compliance because of inadequate waivers of sovereign immunity in current environmental laws; WHEREAS, the Attorneys General have advocated clarifications of these waivers for the past decade; WHEREAS, clarifications of the waivers of sovereign immunity in the Resource Conservation and Recovery Act and in the Safe Drinking Water Act were passed by Congress in 1992 and 1996 respectively; CLEAN WATER ACT WHEREAS, the U.S. Supreme Court decided in Ohio v. DOE that the waiver of sovereign immunity in the Clean Water Act did not apply to the imposition of civil penalties for past noncompliance; WHEREAS, legislation has been introduced in Congress to clarify the waiver in the Clean Water Act to provide a clear and unambiguous waiver of federal sovereign immunity, including immunity for civil penalties for past noncompliance; CLEAN AIR ACT WHEREAS, in United States v. Georgia and in California v. United States federal district courts held that the Clean Air Act did not waive sovereign immunity from civil penalties for past noncompliance; WHEREAS, in United States v. Tennessee Air Pollution Control Board, the district court distinguished Ohio v. DOE, and held that the Clean Air Act waives immunity from such penalties, but the United States appealed the decision to the Sixth circuit which has not yet ruled; CERCLA WHEREAS, in the report to Congress, "Potential Impacts of the Proposed Amendment to the CERCLA Waiver of Sovereign Immunity", the Departments of Defense and Energy state that "the existing waiver in CERCLA section 120(a) is working to ensure that the Federal agencies are treated the same under CERCLA as private parties and should not be altered; WHEREAS, to the contrary, at least one federal district court, in Maine v. Department of Navy, has held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) "does not provide an adequately clear waiver of sovereign immunity from civil penalties"; WHEREAS, three federal district courts, (Rospatch Jessco Corp. v. Chrysler Corp, Redland Soccer Club v. Dept. of Army, and Crowley Marine Services, Inc. v. Fednav Ltd.), have held that CERCLA does not waive sovereign immunity from the enforcement of state cleanup laws at sites that are no longer owned or operated by federal agencies even where such agencies clearly contaminated these sites; WHEREAS, federal agencies interpret CERCLA not to waive sovereign immunity from enforcement of state cleanup laws, but only to require them to comply with substantive provisions of such state laws as the regulators determine them to be legally applicable or relevant and appropriate; WHEREAS, current Executive Order 12580 precludes the Environmental Protection Agency from issuing CERCLA administrative orders against sister federal agencies without express approval from the Department of Justice, thereby severely compromising the regulator's enforcement authority; WHEREAS, the National Association of Attorneys General in July of 1993 and June of 1997 adopted resolutions urging Congress to clarify the waiver of federal sovereign immunity in CERCLA; WHEREAS, legislation has been introduced in Congress to satisfactorily address these deficiencies in the current law; WHEREAS, in their Report to Congress, the Departments of Defense and Energy have stated that the legislation could "subject Federal facilities to requirements and procedures that do not apply to private parties"; WHEREAS, this legislation provides that the waiver of sovereign immunity would not apply to the "extent a State law would apply any standard or requirement to such Federal department, agency, or instrumentality in a manner that is more stringent than such standard or requirement would be applied to any other person"; WHEREAS, as stated in the Report to Congress, "[t]he Department of Defense is concerned that [a clarification of the CERCLA sovereign immunity waiver] could diminish its lead agency authority and disrupt its relative risk priority"; WHEREAS, such lead agency authority and unfettered discretion in allowing the Department's budget to dictate cleanup results in a double standard being applied to Federal agencies as opposed to private parties; and WHEREAS, a clarified waiver would merely aid States in holding Federal agencies to the same standard of compliance as they do private parties; NOW, THEREFORE, BE IT RESOLVED THAT THE NATIONAL ASSOCIATION OF ATTORNEYS GENERAL urges Congress to clarify the Clean Air Act, the Clean Water Act, and CERCLA to provide clear and unambiguous waivers of federal sovereign immunity, including immunity for civil penalties for past noncompliance and other deficiencies in current law as described above. BE IT FURTHER RESOLVED that NAAG directs its Executive Director and General Counsel to send this resolution to the appropriate Congressional Committees and Subcommittees, and to appropriate federal agencies.
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