WAIVER OF SOVEREIGN IMMUNITY

[Lenny Siegel <lsiegel@igc.org>]

Attached is a Dear Colleague letter from Congressman Dan Schaefer 
(R-Colorado) in support of his sovereign immunity bills. Could you post 
with a request that people contact their Congress people and urge them 
to co-sponsor?

June 26, 1997

Is your state having environmental problems with a federal facility?

Dear Colleague:

 At over 61,000 contaminated federally-owned sites throughout 
the country, states are struggling to enforce the same environmental 
standards on the federal operators that they apply to privately owned 
sites. Why? Well, the federal government can hide behind the shield 
of "sovereign immunity" to protect itself from state enforcement of 
most environmental laws. Not only does this double standard violate 
the most basic tenets of government accountability, but it also leaves 
citizens living on or near those federal sites with a second, lower 
class of environmental protection.

 Under U.S. Constitutional law, in order for the federal 
government to be sued, it must first unequivocally waive its sovereign 
immunity. The governing legal standard stipulates that, if there is 
any question about whether and to what extent the federal government 
has waived its sovereign immunity, courts must rule in favor of the 
federal government. Put simply, waivers must be clear and concise or 
they just don't pass constitutional muster.

 The Comprehensive Environmental Response, Compensation and 
Liability Act (CERCLA), or Superfund, and the Clean Water Act currently 
do not adequately waive the federal government's sovereign immunity 
with respect to liability enforcement under those statutes. 
Consequently, while states can theoretically apply environment 
standards to federal facilities, they often encounter endless 
litigation by the federal operators when they try to enforce them and 
often lose in the end.

In 1992, I along with then-Representative Dennis Eckart (D-OH) authored 
the Federal Facilities Compliance Act, which was signed into law by 
then-President Bush. This initiative put federal facilities on equal 
footing with private sites in regard to state enforcement of the 
Resource Conservation and Recovery Act. In 1996, I sponsored similar 
provisions for the Safe Drinking Water Act Amendments, which also 
became law, waiving the federal government's sovereign immunity for 
enforcement of drinking water standards.

Without similar enforceable waivers of sovereign immunity in Superfund 
and the Clean Water Act, people living near federal sites will continue 
to receive a lower level of environmental protection than those living 
near private sites. For this reason, I have introduced the Federal 
Facilities Clean Water Compliance Act (H.R. 1194) and the Federal 
Facilities Superfund Compliance Act (H.R. 1195) to provide the 
enforcement tools states need to ensure the same level of compliance by 
federal sites as by private sites.

If you would like additional information or to add your name as a 
cosponsor, please do not hesitate to contact me or Patrick O'Keefe of 
my staff (5-7882).

Best regards.

 Sincerely,

 Dan Schaefer
 Member of Congress