Waiver of Sovereign Immunity

[Vicky Peters <hwpetevl@dolsmtp.dol.state.co.us>]

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.