Do State Environmental Laws Apply To The New National Nuclear Security Agency?

[Seth Kirshenberg <sethk@energyca.org>]

Potential Roll-Back Of Environmental Laws: Do State Environmental Laws
Apply To The New National Nuclear Security Agency?

Below is an analysis that Energy Communities Alliance received regarding
Section 3261 of the FY2000 Defense Authorization bill (attached is the same
document in Rich text Format).  The analysis concludes that the new
National Nuclear Security Agency ("NNSA") may not have to comply with State
environmental laws and permits, orders, regulations, agreements, etc. 

Section 3261 arguably creates some ambiguity in the laws which oversee
DOE's Defense activites.  We should be careful and ensure that state laws
do apply, as Congress seems to be trying to do with Section 3261, to this
new Federal Agency.

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ANALYSIS OF SECTION 3261 OF THE  
FY 2000 DOD AUTHORIZATION BILL
AS REPORTED BY CONFERENCE COMMITTEE

SUMMARY
	Title XXXII of the Department of Defense Authorization bill for fiscal
year 2000, as reported by the conference committee, contains provisions
creating a new entity, called the National Nuclear Security Agency
("NNSA").  Under Title XXXII, the NNSA will oversee all operations at four
national laboratories and five nuclear weapons production facilities.
Subtitle E of the conference committee's bill includes the following
provision on environmental compliance:

     SEC. 3261. ENVIRONMENTAL PROTECTION, SAFETY, AND     HEALTH
REQUIREMENTS. 
        (a) COMPLIANCE REQUIRED.-The Administrator [of the NNSA]
shall ensure that the Administration [i.e., the NNSA] complies with all
    applicable environmental, safety, and health statutes and substantive
       requirements. 
        (b) PROCEDURES REQUIRED.-The Administrator shall develop
procedures for meeting such requirements. 
         (c) RULE OF CONSTRUCTION.-Nothing in this title shall diminish the
         authority of the Secretary of Energy to ascertain and ensure that
such                    compliance occurs.

At first blush, this provision appears to require that facilities subject
to the authority of the NNSA comply with all environment, safety, and
health laws.  However, there is a reasonable likelihood that a reviewing
court might conclude that the language in (a) actually means that NNSA
facilities do not have to comply with state environmental permits, orders,
regulations, statutes or agreements.  This may seem counterintuitive, but
it is quite possible in light of well-established caselaw regarding
sovereign immunity.

ANALYSIS
	
         The legal doctrine of sovereign immunity derives from the
Supremacy clause of the U.S. Constitution.  Hancock v. Train, 426 U.S. 167,
178 (1976).  It is premised on the ancient common law doctrine that "the
King can do no wrong." Essentially, sovereign immunity precludes anyone
from suing the government without the government's permission, i.e.,
without legislation waiving the immunity.   It thereby prevents states from
regulating the activities of the federal government.  Congress (and only
Congress) may waive the government's sovereign immunity in a statute, but
federal courts have demonstrated repeatedly that they will read statutory
provisions waiving immunity extremely narrowly.  As the Supreme Court
stated in Hancock, "[b]ecause of the fundamental importance of the
principles shielding federal installations and activities from regulation
by the States, an authorization of state regulation is found only when and
to the extent there is a 'clear congressional mandate,' 'specific
congressional action' that makes this authorization of state regulation
'clear and unambiguous.'" (footnotes omitted)  426 U.S. at 179.
	The Hancock court interpreted the waiver of sovereign immunity in the
Clean Air Act, and the decision illustrates the problem that section 3261
of Title XXXII presents.  Before 1970, the Clean Air Act encouraged, but
did not require, federal agencies to comply with its mandates.  Congress
determined that this voluntary system was not working, and in 1970 amended
the act to require federal agencies to comply.  Specifically, Congress
added section 118 to the Clean Air Act.  The first sentence of the section
provides:
Each department, agency, and instrumentality of . . . the Federal
Government . . . shall comply with Federal, State, interstate, and local
requirements respecting control and abatement of air pollution to the same
extent that any person is subject to such requirements.
42 U.S.C. § 1857f.  The 1970 amendments also required the Environmental
Protection Agency to establish ambient air quality standards.  Each state
had to submit plans describing how the state would ensure air quality
within the state would meet these standards.  Kentucky, like most states,
submitted a plan that relied on permits as the mechanism for air pollution
sources to submit emission-related information, to establish emissions
limitations applicable to the source, and to establish a schedule for
achieving compliance with the emissions limitation.  Kentucky sought to
require several federal agencies (including DOE's Paducah plant, then
managed by the Atomic Energy Commission) to obtain permits.  The federal
agencies refused, arguing that section 118 of the Clean Air Act did not
obligate them to obtain state permits.  
The Supreme Court agreed with the federal agencies. The Court stated, "[w]e
are unable to find in section 118, on its face or in relation to the Clean
Air Act as a whole, or to derive from the legislative history of the
Amendments any clear and unambiguous declaration by the Congress that
federal installations may not perform their activities unless a state
official issues a permit." 426 U.S. at 180.  The Court noted that section
118 did not provide that federal agencies must comply with "all . . .
requirements to the same extent as any other person," nor did it provide
that federal agencies must "comply with all requirements of the applicable
state implementation plan."   Id. at 182 (emphasis in original).  Instead,
the court said, "section 118 states only to what extent - the same as any
person - federal installations must comply with applicable state
requirements; it does not identify the applicable requirements."  Id.  
	The Court agreed with the federal agencies' argument that the word
"requirements," as used in section 118, meant only substantive
requirements, not "procedural" requirements, such as permits or enforcement
mechanisms.   (As described below, the Court's distinction between
substantive and procedural requirements could come into play in
interpreting section 3261.)  Consequently, the Court held that the federal
agencies did not have to obtain permits from Kentucky, even though the
permits were the exclusive means by which the state implemented and
enforced the "substantive requirements" of the state's corollary of the
Clean Air Act.  

In reaching this result, the Court:

· Read section 118 to include the word "applicable" modifying
"requirements," when the word "applicable" did not exist in section 118.
· Ignored the phrase "to the same extent as any person" in section 118.
· Created a distinction not present in the Clean Air Act between
"procedural" and "substantive" requirements. 

Congress acted swiftly to nullify this decision and a companion decision
concerning the Clean Water Act by amending both acts to waive immunity for
procedural and substantive requirements (including permits).  This was not
a simple matter of adding the words "procedural" and "permit."  The waiver
grew from 69 words in the 1970 version to 221 words in the 1976 version. 

The Supreme Court demonstrated its continuing hostility to state regulation
of federal facilities in Department of Energy v. Ohio, 503 U.S. 607, 112
S.Ct. 1627 (1992).  That case involved the waivers of sovereign immunity in
the Resource Conservation and Recovery Act ("RCRA") and the Clean Water
Act.  The issue was whether either act allowed states to assess civil
penalties against federal agencies for violation of state water quality or
hazardous waste laws.  The Court analyzed the following language from the
Clean Water Act:

"any citizen may commence a civil action on his own behalf--
	"(1) against any person (including ... the United States ...) who is
alleged to be in violation of (A) an effluent standard or limitation under
this chapter or (B) an order issued by the Administrator or a State with
respect to such a standard or limitation.... 
"The district courts shall have jurisdiction ... to enforce such an
effluent standard or limitation, or such an order ... as the case may be,
and to apply any appropriate civil penalties under [33 U.S.C. s 1319(d) ]."  
33 U.S.C. s 1365(a) (emphasis added).  It also analyzed the following
language from RCRA:

[A]ny person may commence a civil action on his own behalf--
	(1)(A) against any person (including ... the United States) ... who is
alleged to be in violation of any permit, standard, regulation, condition,
requirement, prohibition, or order which has become effective pursuant to
this chapter ...
	(B) against any person, including the United States ... who has
contributed or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or hazardous
waste which may present an imminent and substantial endangerment to health
or the environment....
* * *
	... The district court shall have jurisdiction ... to apply any
appropriate civil penalties under [42 U.S.C. §§ 6928(a) and (g) ].  
42 U.S.C. s 6972(a) (emphasis added).  The court held that neither of these
sections authorized the imposition of civil penalties against federal
agencies.  It also held that the "federal facilities" provisions of the
Clean Water Act and RCRA did not authorize states to impose civil penalties
against federal agencies.  Shortly after the decision in DOE v. Ohio,
Congress passed the Federal Facility Compliance Act, which amended RCRA to
clearly waive the federal government's sovereign immunity from civil
penalties.  The RCRA waiver of immunity is now 454 words long.

Now re-consider the language of section 3261.  Under it, the Administrator
must ensure compliance only with "applicable" statutes and "substantive"
requirements.  A state could certainly argue that the phrase "applicable
statutes" includes statutes that "clearly and unambiguously" waive
sovereign immunity for substantive and procedural requirements, such as the
Resource Conservation and Recovery Act, the Clean Air Act, and the Clean
Water Act.  A state could also argue that the section is not a waiver of
immunity at all, but simply an admonishment to the NNSA Administrator to
comply with environment, safety and health requirements.  However, the NNSA
would certainly argue that only federal statutes are "applicable"; that in
any case the NNSA is required only to comply with the provisions of
statutes themselves, not with any requirements of implementing regulations;
and that the NNSA does not have to comply with any "non-substantive"
requirements, including permits or administrative enforcement mechanisms,
such as orders.  In making this last argument, the NNSA could cite to the
distinction that the Supreme Court made in Hancock between substantive and
procedural requirements. 

	The facilities that will be transferred to the NNSA pose a significant
potential for environmental harm.  Indeed, several are on the National
Priorities List under CERCLA, and DOE estimates that cleaning up and
decommissioning these sites alone will cost tens of billions of dollars.
(Keep in mind also that under section 3291(b), the Secretary has discretion
to transfer additional DOE facilities to the NNSA.)  The primary reason
these costs are so high is that these facilities operated without any
external environmental regulation.  In addition to their existing problems,
all of the facilities that are proposed for transfer to the NNSA will
continue to generate and manage significant quantities of hazardous and
mixed (radioactive and hazardous) wastes in the future.  
Given the existing problems at NNSA candidate facilities and the potential
for additional problems at those facilities in the future, we must ensure
that these facilities continue to be subject to state environmental
regulation.  As the above analysis demonstrates, there is reason for
concern that section 3261 may not accomplish this goal.