Amicus Curiae Brief — United States Department of Energy v. Ohio

Les WZ 4 | Supreme Court, U.S.

Nos. 1 and 90-1517 FILED .

[ apa SEP 13 19

Suprene Court of the United States vic cfr

OCTOBER TERM, 1991

UNITED STATES DEPARTMENT OF ENERGY,

y. Petitioner,

STATE OF OHIO, et al.,

Respondents.

STATE OF OHIO, et al.,

y Cross-Petitioners,

UNITED STATES DEPARTMENT OF ENERGY,

Cross-Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES, AND

U.S. CONFERENCE OF MAYORS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS /CROSS-PETITIONERS

BRUCE J. ENNIS RICHARD RUDA *

DONALD B. VERRILLI, JR. Chief Counsel

JENNER & BLOCK MICHAEL G. DZIALO

21 Dupont Circle, N.W. STATE AND LOCAL LEGAL CENTER

Washington, D.C. 20036 444 North Capitol Street, N.W.

(202) 223-4400 Suite 349

BARRY LEVENSTAM Washington, D.C. 20001

THOMAS C. BUCHELE (202) 638-1445

JENNER & BLOCK * Counsel of Record for the

One IBM Plaza Amici Curiae

Chicago, IL 60611

(312) 222-9350

Of Counsel

Ae

WILSON - EPgs PRINTING Co., - 789-0096 - WASHINGTON, D.C. 20001

BEST AVAILABLE COPY i

QUESTIONS PRESENTED

1. Whether the express waivers of federal sovereign

immunity contained in Section 313 of the Clean Water

Act, 33 U.S.C. § 1323, and Section 6001 of the Resource

Conservation and Recovery Act, 42 U.S.C. § 6961, for

“all requirements” of these laws waive sovereign immu-

nity from civil penalties in CWA and KCRA enforcement

actions brought by States.

2. Whether the citizen suit provisions of the Clean Water

Act, 33 U.S.C. § 1365, and the Resource Conservation and

Recovery Act, 42 U.S.C. § 6972, which expressly authorize

States to bring suits against “any person (including the

United States)” and expressly authorize “appropriate

civil penalties,” constitute waivers of federal sovereign

immunity from civil penalties.

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TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAEF

INTRODUCTION AND SUMMARY OF ARGU-

MENT

ARGUMENT

I.

II.

CWA AND RCRA CLEARLY WAIVE FED-

ERAL SOVEREIGN IMMUNITY WITH RE-

SPECT TO ALL ENFORCEMENT MECHA-

NISMS, INCLUDING CIVIL PENALTIES

A. CWA’s Federal Facilities Provision Is A

Clear Statement Waiving Sovereign Immu-

nity From Civil Penalties

B. CWA’s Citizen Suit Provision Contains A

Clear Statement Waiving Federal Sovereign

Immunity From Civil Penalties —_..

. The RCRA Citizen Suit Provision Unambigu-

ously Waives Federal Facilities’ Sovereign

Immunity From Civil Penalties

D. The RCRA Federal Facilities Provision Un-

ambiguously Waives Federal Sovereign Im-

munity From Civil Penalties

THE WAIVERS OF SOVEREIGN IMMU-

NITY AS TO CIVIL PENALTIES FOR FED-

ERAL FACILITIES ARE AN ESSENTIAL

PART OF THE FEDERALIST REGULATORY

SCHEME ESTABLISHED BY CWA AND

RCRA

=)

CONCLUSION

(iii)

14

16

18

22

iv

TABLE OF AUTHORITIES

Cases Page

Canadian Aviator v. United States, 324 U.S. 215

SERRE poerenreneree ner oer eee vs Wa atone Sai 13, 21

Clifford F. MacEvoy Co. v. United States ex rel.

Calvin Tomkins Co., 322 U.S. 102 (1944)... 15

Crandon v. United States, 110 S. Ct. 997 (1990)... 9

D. Ginsburg & Sons v. Popkin, 285 U.S. 204

Ee a EE cer Ee ie ee 15

EPA v. California ex rel. State Water Resources

Control Bd., 426 U.S. 200 (1976) 12

Fourco Glass Co. v. Transmirra Products Corp. he

353 U.S. 222 (1957) . . 15

Franchise Tax Bd. v. United States Postal Service,

as 21

Gregory v. Ashcroft, 111 S. Ct. 2395 (1991)... 4

Hancock v. Train, 426 U.S. 167 (1976) 11-12, 17

Keifer & Keifer v. Reconstruction Finance Corp.,

Se I ae 21

Kosak v. United States, 465 U.S. 848 (1984) 11

Maine v. United States Dep't of Navy, 702 F. Supp.

322 (D. Me. 1988), appeal pending, No. 91-1064

(Ist Cir.) . 9-10

Mountain States Tel. & Tel. 1 v. . Santa Ane, 472 U. S.

237 (1985) .......... ae IRE y See PEN 9

Norfolk & Western Ry. v. American Train Dis-

patchers Ass’n, 111 U.S. 1156 (1991) _..... 5, 8, 17-18

P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979) 18

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

SURI sinincstiniiatiniciealetadilcilaiaatadie att is peieek cae aie ica SS 4

Sheridan v. United States, 487 US. 392 (1988). 11

United States v. Yellow Cab Co., 340 U.S. 543

ESE TE ee ee See 13

Will v. Michigan Dep't of State Police, 491 U. S. 58

(1989) __. ETS Es Fee een ane TO a Ny AD 4

Statutes and Regulations

ca capudenepeeenieuanngehciouemauein’ 10

EL TED AI 19

7 U.S.C. § 1361 asoniiiatinmennakenionietasalpidit sdlsedinnees 19

v

TABLE OF AUTHORITIES—Continued

Page

I 19

12 U.S.C. § 1847 19

IE RES Nn a Ne CRD OR Min scene 19

a ee ee 19

21 U.S.C. § 333 .. 19

SE RC Un ee yO 10-11

CE ee er ee 19

ERTL R CLT e 20

33 U.S.C. § 1251 10

33 U.S.C. § 1319 .. seiteabeitiisietaaienseniielathimesieadtiiiatndae mn

I passim

EE ee ee eR 10

EE, RS eo Ae on 10

SR EEE RE eR eae eer Ra ae 14, 15

EE a em stitial passim

TS EERE AA AOS Se NE IN 19

I a anneal 19

Neen cinpaaianieabesanniimainaad 19

I cecencnietandll 15

ae shieienictanil 15, 16,17

a saibodondall iaidiniiiiiias passim

I passim

42 U.S.C. § 9609 pceustide = 19

42 U.S.C. § 11045 19

ET NEE a RRR pe ae eee 19

TM See 19-20

IEEE ER er ee ON ne NS EN 19

ET ene ae a eRe 8,17

Miscellaneous

Black’s Law Dictionary (Rev. 6th Ed. 1990)... 8

Cleanup at Federal Facilities: Hearings Before

the Subcommittee on Transportation, Tourism,

and Hazardous Materials of the House Com-

mittee on Energy and Commerce, 100th Cong.,

2d Sess. (1988)

Comment, Lawmaker as Lawbreaker: Assessing

ee ee eee ee eee

Civil Penalties Against Federal Facilities Under

RCRA, 57 U. Chi. L. Rev. 845 (1990) 000.

vi

TABLE OF AUTHORITIES—Continued

Page

The Federalist Nos. 45 and 46 (J. Madison)... 19

National Governors’ Association & National Asso-

ciation of Attorneys General, From Crisis to

Commitment: Environmental Cleanup and Com-

pliance at Federal Facilities (1990) ................... 2,3

H.R. Rep. No. 294, 95th Cong., Ist Sess. (1977) .... 20

S. Rep. No. 370, 95th Cong., Ist Sess., reprinted

in 1977 U.S. Code Cong. & Ad. News 4326... 12, 20

S. Rep. No. 284, 98th Cong., Ist Sess. (1983) ..... 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

Nos. 90-1341 and 90-1517

UNITED STATES DEPARTMENT OF ENERGY,

Petitioner,

Vv.

STATE OF OHIO, ef a/.,

Respondents.

STATE OF OHIO, ef al.,

Cross-Petitioners,

UNITED STATES DEPARTMENT OF ENERGY,

Cross-Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL CONFERENCE OF STATE LEGISLATURES,

INTERNATIONAL CITY COUNTY MANAGEMENT

ASSOCIATION, COUNCIL OF STATE GOVERNMENTS,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES, AND

U.S. CONFERENCE OF MAYORS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS CkOSS-PETITIONERS

9

=

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials through-

out the United States. These organizations and their

members have a compelling interest in legal issues that

affect the powers and responsibilities of state and local

governments.

States and the federal government share overall respon-

sibility for enforcing the Clean Water Act and the Re-

source Conservation and Recovery Act. Because of the

lack of meaningful federal enforcement of environmental

laws against federally owned facilities, the States have,

in effect, sole responsibility for the enforcement of CWA

and RCRA at federal facilities such as the Fernald, Ohio

uranium processing plant that is the subject of this

litigation. '

Effective enforcement of the environmental laws at

federal facilities is critical to the health and safety of the

citizens of every State. Such effective enforcement “de-

pends heavily on two key factors—voluntary compliance

by the regulated community”, which includes vast num-

bers of federally owned facilities, “and diligent, inde-

pendent oversight of environmental activities by state and

federal regulators.”’ National Governors’ Association &

National Association of Attorneys General, From Crisis to

Commitment: Environmental Cleanup and Compliance at

Federal Facilities 10 (1990). “Given the history of non-

compliance at many federal facilities,” however, “it is

clear that effective independent oversight by states is nec-

essary to ensure that environmental laws are being fol-

lowed.” Id.

The federal government’s persistent but ultimately

untenable assertion of sovereign immunity from the civil

penalties provisions of CWA and RCRA thwarts effective

enforcement of environmental laws at large numbers

of federal facilities throughout the country. Amici ac-

3

cordingly submit this brief to assist the Court in the reso-

lution of this case.'

INTRODUCTION AND SUMMARY OF ARGUMENT

Facilities owned by federal agencies such as petitioner

DOE have produced some of the nation’s worst environ-

mental problems. Because of the federal government’s

very limited role in enforcement pursuant to its “unitary

theory of the executive,” * the States have primary re-

sponsibility for enforcing CWA and RCRA at federal fa-

cilities. Congress has expressly waived the federal gov-

ernment’s sovereign immunity from a wide range of state

enforcement mechanisms available under these statutes.

The issue in this case is whether this waiver extends to

CWA and RCRA civil penalties.

Resolution of this issue turns on the proper application

of well-established rules governing the waiver of sov-

ereign immunity. Amici fully agree with DOE as to the

fundamental importance of sovereign immunity and gen-

erally agree with DOE’s articulation (Pet. Br. 16) of the

'The parties’ letters of consent have been filed with the Clerk

pursuant to Rule 37.3 of this Court.

“See Cleanup ot Federal Facilities: Hearings Before the Sub-

committee on Transportation, Tourism, and Hazardous Materials of

the House Committee on Energy and Commeree, 100th Cong., 2d

Sess, 452-54 (1988) (Statement of Acting Assistant Attorney Gen-

eral Marzulla) (institution of judicial and administrative enforce-

ment proceedings by EPA concerning federal facilities disallowed

pursuant to theory that “the exercise by any officer at EPA of

unilateral authority over another executive branch agency . . . would

be unconstitutional and clearly inconsistent with existing Executive

Branch dispute resolution mechanisms”); Comment, Lawmaker as

Lawhreaker: Assessing Civil Penalties Against Federal Facilities

Under RCRA, 57 U. Chi. L. Rev. 845, 846-47 & n.10 (1990); Na-

tional Governors’ Association & National Association of Attorneys

General, From Crisis to Commitment, supra, at 7 (“{D]ue largely

to opposition from the Department of Justice, EPA has been unable

to impose a credible enforcement presence at federal facilities.” ).

4

principles that govern this question.* As amici have as-

serted many times before this Court, the “clear state-

ment” rule protects the proper spheres of government

sovereignty—both state and federal. See Gregory v. Ash-

croft, 111 S. Ct. 2395 (1991); Will v. Michigan Dep't of

State Police, 491 U.S. 58, 65 (1989).

Amici disagree, however, with DOE’s proposed appli-

cation of these rules to CWA and RCRA. The “federal

facilities” provisions, Section 313 of CWA, 33 U.S.C.

§ 1323/a), and Section 6001 of RCRA, 42 U.S.C. § 6961,

are clear statements of congressional intent to waive the

federal government’s sovereign immunity from al! reme-

dies necessary to enforce those laws—including civil pen-

alties. In addition, the “citizen suit” provisions of both

CWA and RCRA waive federal sovereign immunity from

civil penalties. 33 U.S.C. § 1865; 42 U.S.C. § 6972.

DOE concedes that Section 313 of CWA and Section

6001 of RCRA are clear statements that waive most fed-

eral sovereign immunity defenses. DOE does not dispute,

for example, that a State may, under CWA and RCRA,

obtain sweeping equitable relief against noncomplying

federal facilities. Congress has specifically authorized

States to enjoin operation of a federal facility, mandate

costly improvements to a facility, and impose other far-

reaching affirmative obligations on the federal government

when necessary to ensure compliance with CWA or RCRA.

Nor is there any dispute that Congress has waived federal

immunity from contempt sanctions—including monetary

penalties—imposed to coerce compliance with injunctive

3It may be, however, that the “clear statement” rule of statu-

tory interpretation should apply with less foree when—as in this

case—the federal sovereign acts to waive its own immunity, than

when the federal sovereign acts to abrogate state sovereign im-

munity. In waiver situations, the risk of unwarranted intrusion

upon the “historic police powers of the States,” Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947), is not present.

5

orders.* DOE likewise concedes that the citizen suit pro-

visions of CWA and RCRA authorize wide-ranging en-

forcement actions against federal facilities. See Pet. Br.

31, 42-43 (citing 33 U.S.C. § 1365; 42 U.S.C. § 6972(a)).

DOE nonetheless contends that Congress excluded civil

penalties from the sweeping waivers of sovereign immu-

nity contained in these statutes. DOE is in error. Section

313 of CWA clearly and unambiguously states that

“lelach department, agency or instrumentality of the

executive, legislative, and judicial branches of the federal

government” is “subject” to “all Federal, State, inter-

state and local requiremenis” respecting water pollu-

tion, including all “sanctions.” 33 U.S.C. § 1323(a) (em-

phasis added). The natural meaning of the words “re-

quirements” and “sanctions” encompasses the civil penal-

ties at issue here. By using the word “all,” Congress

clearly indicated its intention to waive sovereign immu-

nity from every kind of sanction. See Norfolk & Western

Ry. v. American Train Dispatchers Ass'n, 111 S. Ct. 1156,

1164 (1991).

Furthermore, if no general waiver of sovereign im-

munity from civil penalties was intended by Section 313

of CWA, then several portions ef that provision would be

meaningless. Congress would have no reason to exempt

federal officials from individual liability for civil penal-

ties if civil penalties were not a permitted remedy in

enforcement actions against federal facilities. Similarly,

Congress would have had no need to limit the federal

government’s liability for civil penalties to those civil

penalties “arising under federal law.”

4 See Pet. Br. 18 (“the federal facilities provision . . . concededly

waives federal sovereign immunity from injunctive relief and

sanctions to enforce compliance with such injunctions”); id. at

24, 35.

6

The citizen suit provisions of CWA and RCRA pro-

vide an independent source for the waiver of federal

sovereign immunity from civil penalties. Section 505 of

CWA, 33 U.S.C. § 1365, authorizes “any citizen” to sue

“any person, including . . . the United States,” to enforce

the Act. Section 7002 of RCRA, 42 U.S.C. § 6972, au-

thorizes citizen suits in virtually identical language. Each

provision similarly grants federal district courts the au-

thority to impose “any appropriate civil penalties.” 33

U.S.C. § 13865; 42 U.S.C. § 6972 (a).

Finally, Section 6001 of RCRA contains a_ broad

waiver of sovereign immunity from civil penalties.

Like CWA, RCRA expressly waives sovereign immunity

from “all Federal, State, interstate, and local require-

ments, both substantive and procedural . . . in the same

manner, and to the same extent, as any person is subject

to such requiremenis.” 42 U.S.C. § 6961 (emphasis

added). Section 6001 explictly includes “sanctions”

within the definition of procedural requirements. As in

CWA, the word “all” in RCRA makes clear Congress’s

intention to subject the federal government to the full

range of RCRA enforcement mechanisms.

CWA and RCRA are predicated upon our federalist

scheme of dual sovereignty. Effective enforcement de-

pends upon the availability to both state and federal au-

thorities of a full range of enforcement mechanisms,

including civil penalties, for use against all violators.

Yet DOE takes the position that federal facilities are

exempted from one critical enforcement mechanism, civil

penalties, whereas state and local government facilities

are not so exempted. And DOE takes this position even

though it would mean that States, indisputably empow-

ered to impose potentially huge demands on the federaf

fise through sweeping affirmative injunctive relief (aided

7

as necessary by contempt sanctions), would be deprived

of the civil penalties option, a far less intrusive approach

that might be more appropriate to a particular regulatory

problem. !

DOE thus ignores both the clear and unambiguous lan-

guage of CWA and RCRA and the dual sovereignty prin-

ciples that are the basis for enforcement of those statutes.

Amici accordingly urge the Court to affirm the judgment

of the court of appeals insofar as that court found CWA

and RCRA to waive federal sovereign immunity from

civil penalties.

ARGUMENT

I. CWA AND RCRA CLEARLY WAIVE FEDERAL

SOVEREIGN IMMUNITY WITH RESPECT TO ALL

ENFORCEMENT MECHANISMS, INCLUDING

CIVIL PENALTIES.

A. CWA’s Federal Facilities Provision Is A Clear

Statement Waiving Sovereign Immunity From Civil

Penalties.

Section 313 of CWA contains a sweeping waiver of fed-

eral sovereign immunity:

Each department, agency, or instrumentality ... of

the Federal Government . . . shall be subject to, and

comply with, all Federal, State, interstate and local

requirements, administrative authority, and process

and sanctions respecting the control and abatement

of water pollution in the same manner, and to the

Same extent as any nongovernmental entity. .. .

33 U.S.C. § 1323(a). DOE concedes that this language is

a clear statement of congressional intent to waive federal

sovereign immunity from an extremely broad range of

state enforcement actions, including those seeking ex-

tensive equitable relief. See Pet. Br. 18, 24, 35. DOE

8

nonetheless contends that Congress intended to omit civil

penalties from the waiver.

Section 313’s waiver, however, unambiguously encom-

passes civil penalties. Parsed to the language that con-

trols this case, Section 313 states: “the Federal govern-

ment ... shall be subject to... all... State... re-

quirements ... and... sanctions respecting the control

and abatement of water pollution in the same manney,

and to the same extent as any nongovernmental entity.”

A civil penalty is a sanction, as that term is commonly

understood. See Black’s Law Dictionary 1341 (Rev. 6th

Ed. 1990) (sanction is “part of a law which is designed

to secure enforcement by imposing a penalty for its vio-

lation”). Congress explicitly waived federal sovereign

immunity from “all” sanctions. As this Court recently

held in Norfolk & Western Ry. v. American Train Dis-

patchers Ass'n, the word “all” in a federal immunity

statute “means what it says,” absent clear indication to

the contrary. 1115S. Ct. at 1164.°

DOE seeks to avoid the plain meaning of Section 313

by contending that the term “sanctions” is inseparable

from the immediately preceding term “process.” Pet. Br.

19-20. As DOE would have it, the sanctions referred to

in Section 313 are limited to those imposed to enforce

compliance with judicial “process’”—contempt sanctions,

for example. Congress, however, did not waive immunity

for “sanctions to enforce judicial process,” as it could

have done had it so intended. Rather, Congress explicitly

waived immunity for “all . .. process and sanctions.”

Had Congress intended the meaning DOE now ascribes

to Section 313, much of the remainder of that provision

would have been wholly unnecessary. First, Section 313

5In Norfolk & Western, the Court construed 49 U.S.C. § 11341 (a),

which grants rail carriers legal immunity for certain transactions.

The Court noted that “all” is a word that “indicates no limitation,”

and that the absence of limitations is “inherent in the word ‘all.’”

111 S. Ct. at 1163, 1164.

9

expressly removes any risk of personal liability for civil

penalties against federal officials in suits against federal

facilities. 33 U.S.C. § 13828(a). If the preceding language

of this provision was not intended to waive sovereign

immunity for civil penalties, Congress would have had

no need to include this proviso protecting individual fed-

eral officials. Second, Section 313 does impose one spe-

cific limit on the kinds of civil] penalties for which the

federal government is liable; the penalties must arise

under federal law. /d. That provision would also be

superfluous if the preceding language in Section 313 had

not been intended to waive immunity for civil penalties."

See Mountain States Tel. & Tel. Co. v. Santa Ana, 472

U.S. 237, 249 (1985) (court should reject construction

that would render part of a statute superfluous) ; Cran-

don v. United States, 110 8. Ct. 997, 1008 (1990) (Sealia,

J., concurring) (same).?

* Additionally, this proviso subjects the federal government to

liability for “civil penalties arising under Federal law or imposed

by a State or local court to enforce an order or the process of

such court.” /d. (emphasis added). The proviso explicitly dis-

tinguishes between “civil penalties arising under federa! law” on

the one hand, and sanctions imposed to enforce compliance with

state and local judicial orders on the other.

7As one court has explained, by limiting the federal waiver for

civil penalties in this way, Congress has:

carve|d| out of the generic categories of civil penalties pre-

viously imposed those civil penalties which did not arise under

federal law or which were not imposed by a local court order

for enforcement purposes. The provision exempts the United

States from liability for those civil penalties, and leaves the

residue of the generic category of civil penalties (e.g., those

that aise under federal law, or which were imposed by a

state or local court) to be borne by the United States. .. .

|T |he phrase operates to delimit the broader category of civil

penalties for which liability has already, in the mind of the

draftsman, becn imposed by the clear intendment and _all-

10

The civil penalties at issue here arise under federal

law and therefore fall within Section 313’s sovereign

immunity waiver. The penalties punish violations of the

permit system established by CWA. The Act expressly

states that the States are “implementl/ing| the permit

programs under sections 1342 and 1344”, 33 U.S.C.

$1251(b) (emphasis added). The Ohio regulatory

scheme that implements CWA incorporates federal water

pollution standards not by chance or by independent

choice, but because those are the minimum standards

CWA requires for a state implementing program. The

civil penalties at issue here were incorporated into Ohio

law because the CWA required, as a condition of federal

approval of the State’s regulatory scheme, adequate en-

forcement authority “including civil and criminal penal-

ties.” 33 U.S.C. § 1842(b) (7); 40 C.PLR. 123.27(a) (3).

The Ohio enforcement plan now being contested by DOE

was specifically approved by EPA pursuant to these statu-

tory and regulatory provisions. Furthermore, EPA can

directly enforce the permit requirements as federal re-

quirements. 33 U.S.C. § 1819(a) (1).

DOE bases its construction of the “arising under” lan-

guage of Section 313 on the construction of analogous

language in 28 U.S.C. § 1331. Section 1331, however, has

no bearing on the interpretation of CWA because Con-

gress sought wholly different objectives in limiting federal

inclusive scope of the earlier “all requirements, substantive and

procedural” language.

Maine v. United States Dept. of Navy, 702 F. Supp. 322, 329

(D, Me. 1988) (emphasis in the original), appeal pending, No.

91-1064 (1st Cir.).

* This section states that:

whenever . . . the Administrator [of the EPA] finds that

any person is in violation of any condition or limitation which

implements [the Clean Water Act] in a permit issued by a

State ... he shall proceed under his authority ... .

33 U.S.C. § 1319(a) (1) (emphasis added).

ll

court jurisdiction under that provision. Section 1331 is

intended to ensure that the subject matter jurisdiction of

the federal courts remains within the control of Congress.

Section 313, by contrast, is intended to ensure that States

have adequate enforcement authority to make federal fa-

cilities comply with the nation’s water pollution laws.’

As this Court has made plain—and as DOE acknowledges

—the term “arising” must be interpreted in light of

Congress's specific intent.” Cf. Kosak v. United States,

465 U.S. 848, 854 (1984) (“arising in respect of” limita-

tion on waiver of sovereign immunity means “associated in

any way with”); Sheridan v. United States, 487 U.S. 392,

409 (1988) (O'Connor, J., dissenting) (“arising out of”’

limitation on waiver of sovereign immunity means “asso-

ciated in any way with’).

The history culminating in passage of Section 313 pro-

vides confirming evidence of Congress’s clear intent to

waive sovereign immunity from civil penalties. Section

313 was amended in 1977 in direct response to Hancock v.

“The reason for the inclusion of the “arising under” languaye

in CWA is clear. The preceding languaye in Section 313 waived

sovereign immunity for all sanctions imposed by “Federal, state,

interstate, or local” authorities. CWA does not have a mechanism

for federal approval, and thus federal control, over the level of inter-

state or local sanctions. Congress wanted to ensure that the federal

yovernment would be liable only for those civil penalties included

in state-administered enforcement schemes approved by EPA. This

provision protects the federal government from exposure to a

plethora of local penalties that have not been reviewed and ap-

proved pursuant to CWA.

DOK notes that the languaye “arising under the laws of the

United States” in the Constitution has a different meaning than

the identical language in Section 1331. DOE argucs that cases

interpreting the constitutional lanyuage have no relevance because

“{tlhere is no reason to believe that Congress intended to refer to

the constitutional meaning of those words when it added the proviso

to Section 313/a)."” Pet. Br. 35 n. 21. Of course, for the reasons

discussed above, there is likewise no basis for believing that Congress

intended to refer to Section 1331.

12

Train, 426 U.S. 167 (1976), and EPA v. California ex

rel. State Water Resources Control Bd., 426 U.S. 200

(1976). Those cases addressed whether the Clean Air

Act and CWA required federal facilities to comply with

State-issued discharge permits. Both statutes required

federal facilities to comply with water and air pollution

“requirements.” The Court perceived a distinction be-

tween “substantive requirements,” meaning the actual

limits that the statutes placed on pollution, and “proce-

dural requirements,” which the Court defined as including

all “enforcement mechanisms.” Because Congress had

not made clear that it intended to waive sovereign im-

munity for ali requirements, the Court declined to find a

waiver of immunity for procedural requirements. //an-

cock, 426 U.S. at 182-186. The Court then invited Con-

gress to “legislate to make [its] intention manifest.”

Hancock, id.; State Board, 426 U.S. at 228.

In response, Congress amended Section 313 of CWA

in 1977 to specify that federal facilities must comply

with “all” requirements respecting water pollution “to

the same extent as any person is subject to these re-

quirements.” In addition, Congress added an even more

specific sentence, now the second sentence of Section 313,

explaining that “all requirements” includes not only “sub-

stantive or procedural” requirements but also “any other

requirement whatsoever.” 33 U.S.C. § 1323(a); see also

S. Rep. No. 370, 95th Cong., Ist Sess. 67, reprinted in

1977 U.S. Code Cong. & Ad. News 4326. Congress has

thus made clear its intention that federal facilities be sub-

ject to all procedural requirements. This Court has al-

ready ruled that “procedural requirements” include en-

forcement mechanisms. See Hancock, 426 U.S. at 182-86.

Under CWA civil penalties are one such mechanism.

DOE’s asserted interpretation of Section 313 fails to

take account of the inconsistency between that interpre-

tation and the clear, overarching congressiona! intent

to make federal facilities subject to effective state en-

13

forcement. Congress has explicitly waived sovereign im-

munity for all “requirements” and all “sanctions.” Those

provisions are a clear statement of congressional intent

to waive immunity from civil penalties. DOF’s contrary

position does not rest on the “clear statement” rule,

for a clear statement can be sweeping or narrow, general

or detailed. Instead, DOE is in effect asking the Court

to adopt a new “detailed statement” rule pursuant to

which Congress could not waive immunity from “all” re-

quirements and sanctions, but would have to identify pre-

cisely each requirement and sanction that has been

waived. The clear statement rule is a workable and ap-

propriate rule, and is satisfied when Congress’s intent

to waive immunity is manifest, as it is here.

In similar contexts, this Court has rejected efforts to

truncate broad, clearly stated waivers of federal sov-

ereign immunity. In United States v. Yellow Cab Co.,

340 U.S. 543 (1951), for example, the Court rejected an

argument very similar to DOE’s reading of Section 313.

The statute at issue in Yellow Cab made the United

States liable “in the same manner and to the same extent

as a private individual” for “any claim... on account of

personal injury cr death .. . caused by” the negligence of

a federal emp'oyee. 340 U.S. at 54% (emphasis added).

This waiver was held to encompass claims for contribution

even though the statute did not expressly mention contri-

bution claims, because Congress had made plain its inten-

tion to effect a sweeping waiver. The absence of any

specific mention of contribution, the Court held, did not

create ambiguity as to Congress’s intent to waive immu-

nity from “any claim.” Identical reasoning governs this

case, See also Canadian Aviator v. United States, 324

U.S. 215, 222 (1945) (broad waiver cannot “be thwarted

by an unduly restrictive interpretation”) .

14

B. CWA’s Citizen Suit Provision Contains A Clear

Statement Waiving Federal Sovereign Immunity

From Civil Penalties.

Section 505 of CWA, 33 U.S.C. § 1365, also unambigu-

ously waives federal sovereign immunity from civil pena!-

ties. This provision authorizes any “citizen” to sue any

“person” for enforcement against violations of the CWA

permit system. As DOE concedes, that provision author-

izes wide-ranging equitable relief to enforce compliance.

Section 505 expressly defines “person|s]” subject to such

suits to include the United States, and includes States

among the “citizens” who may initiate such actions. Sec-

tion 505 also clearly states that federal district courts

have jurisdiction to impose all appropriate remedies in

citizen suits, including “any appropriate civil penalties

under section 319(d) of this Act.” Congress’s intent to

impose civil penalties on the federal government could

not be more clearly manifested.

DOE seeks to create ambiguity in Section 505 where

none exists. DOE argues that Section 505 is ambiguous

because it refers to CWA’s general civil penalties pro-

vision at 33 U.S.C. § 1319(d), which is in turn limited

by the general definition of “person” at 33 U.S.C.

* 135215). Because CWA’s general definition of “person”

does not expressly include the United States, DOE con-

tends that Congress did not intend to subject the United

States to civil penalties under Section 505. See Pet. Br.

at 32-33.

This argument is meritless. The Section 1352/5) def-

inition of “person” is a general definition applicable only

“except as otherwise specifically provided.” '' The citizen

'! The general definition states:

Except as otherwise specifically provided .. .

(5) The term ‘person’ means an individual, corporation, part-

nership, association, State, municipality, commission, or politi-

cal subdivision of a state, or any interstate body.

33 U.S.C. § 1352(5).

15

suit provision, however, provides a specific definition of

“person”: a citizen suit may be commenced against “any

person (including the United States).” 33 U.S.C. § 1365

(a) (1). “In these circumstances the law is settled that

‘However inclusive may be the general language of a

statute, it “will not be held to apply to a matter specifi-

cally dealt with in another part of the same enactment.

. . . Specific terms prevail over the general in the same

or another statute which otherwise might be control-

ling.” ’” Fourco Glass Co. v. Transmirra Products Corp.,

353 U.S. 222, 228-229 (1957) ‘quoting Clifford F. Mae-

Evoy Co. v. United States ex rel. Calvin Tomkins Co.,

322 U.S. 102, 107 (1944) and D. Ginsburg & Sons vv.

Popkin, 285 U.S. 204, 208 (1932)). The specific defini-

tion of person in the citizen suit provision is an instance.

“otherwise specifically provided” for in 33 U.S.C. § 1352

(5), in which that definition includes the United States.

Accordingly, for the purpose of civil penalties incorpo-

rated into the citizen suit provision, the citizen suit pro-

vision’s more specific definition of “person”? must prevail

over the statute’s genera! definition.

C. The RCRA Citizen Suit Provision Unambiguously

Waives Federal Facilities’ Sovereign Immunity

From Civil Penalties.

Section 7992 of RCRA, 42 U.S.C. § 6972, contains a

citizen suit provision almost identical to that contained in

CWA. Section 7002 subjects the federal government to

suits by a person when a federal facility is in violation of

RCRA standards and regulations and presents an “im-

minent and substantial endangerment to health or the

environment.” 42 U.S.C. § 6972(a). States are explicitly

included among the “citizens” authorized to bring such

actions. 42 U.S.C. § 6903(15). Section 7002 expressly

gives district courts the authority in citizen suits to

“apply any appropriate civil penalties under [42 U.S.C.]

Sections 6928(a) and (@).” Jd,

16

In an effort to import ambiguity into this clear provi-

sion, DOE argues that immunity from civil penalties is

not waived because 42 U.S.C. § 6928 does not specifically

mention civil penalties against the federal government.

As with the virtually identical language of the CWA

citizen suit provision, this strained argument is defeated

by a natural reading of the plain language of the statute.

See discussion supra at 14-15,

The legislative history of Section 7002 reinforces the

statute’s plain meaning. The Senate Report makes clear

that

Either a noncomplying agency [or] the Adminis-

trator, if he fails to act, are subject to the citizen

suit and penalty provisions of section 7002. To

assure that there is no confusion as to this, the

amendments to section 7002 continue to use the cur-

rent statutory language to specifically authorize a

suit against “any person, including the United

States.”

S. Rep. No. 284, 98th Cong., Ist Sess. 44 (1983). Thus,

both the text and the legislative history of Section 7002

make clear that Congress intended to subject the United

States to civil penalties under RCRA.

D. The RCRA Federal Facilities Provision Unambigu-

ously Waives Federal Sovereign Immunity From

Civil Penalties.

Section 6001 of RCRA, 42 U.S.C. § 6961, provides that:

Each department, agency, and instrumentality of the

executive, legislative and judicial branches of the Fed-

eral government .. . shall be subject to and comply

with all Federal, State, interstate and local require-

ments, both substantive and procedural (including

any requirement for permits or reporting or any pro-

visiens for injunctive relief and such sanctions as

may be imposed by a court to enforce such relief),

respecting the control and abatement of solid waste

17

or hazardous waste in the same manner and to the

same extent as any person is subject to such require-

ments, '

The core statement in RCRA’s federal facilities provision

is simple and clear: all federal facilities are subject to “all

- requirements . . . in the same manner, and to the

same extent, as any person.” 42 U.S.C. § 6961. Further-

more, “|a]ny person that violates a requirement of this

subchapter shall be liable . . . for a civil penalty.” 42

U.S.C. § 6928(g). Section 6001 of RCRA thus clearly

waives federal sovereign immunity from civil penalties.

By subjecting federal facilities to “all requirements,”

as it did in the CWA, Congress used the broadest lan-

guage possible. To avoid any limitation of this language,

Congress expressly provided that “requirements” include

“both substantive and procedural” requirements, thereby

encompassing the entire array of regulations, standards,

and “enforcement mechanisms.” In short, Congress took

to heart this Court’s guidance in Hancock in selecting the

precise language it used to waive sovereign immunity from

ull enforcement mechanisms. See discussion supra at

12-13.

DOE nonetheless contends that Section 6001 does not

Waive sovereign immunity from civil penalties. DOE

argues that the “including” clause in Section 6001 was

meant to be an exclusive list of the types of requirements

for which Congress intended to waive immunity. That

argument misreads the “including” language in a manner

recently rejected by the Court in Norfolk & Western Rail-

way Co, There the Court interpreted the scope of 49

U.S.C. §11341l/a), an immunity provision that waived

liability for certain conduct under “all” laws, and fol-

lowed that waiver of liability with a specific list of laws

preceded by the word “including.” 111 S. Ct. at 1162.

The Court held that the “including” phrase should not be

understood as a limitation on the scope of the waiver. /d.

18

at 1163-64. Cf. P.C. Pfeiffer Co. v. Ford, 444 US. 69,

77 n.7 (1979: (broadly construing “including” ).

Indeed, in the present case, the use of the word “sanc-

tions” in the “including” phrase in Section 6001 confirms

that Congress intended to encompass sanctions within

the word “requirements.” There can thus be no doubt

that “sanctions” are a subset of the requirements for

which federal sovereign immunity is waived. Because

civil penalties fall within the common definition of “sanc-

tions,” Congress’s intention to waive immunity for civil

penalties is clear.’

lf. THE WAIVERS OF SOVEREIGN IMMUNITY AS

TO CIVIL PENALTIES FOR FEDERAL FACILI-

TIES ARE AN ESSENTIAL PART OF THE FED-

ERALIST REGULATORY SCHEME ESTABLISHED

BY CWA AND RCRA.

Both CWA and RCRA are premised on innovative en-

forcement partnerships of the States and the federal gov-

ernment, and draw on the strengths of our federalist

system of dual sovereignty. This federalist context—

which DOE ignores—is crucial] to a proper interpretation

of the sovereign immunity provisions in these statutes.

Because the States’ role is so central to the CWA and

RCRA regulatory schemes," civil penalties are so integral

to effective enforcement of these laws, and federal facili-

ties are such substantial sources of pollution, Congress

could not reasonably have intended to prevent States from

using civil penalties when enforcing CWA and RCRA

12 Furthermore, because Congress’s intent to subject the federal

government to civil penalties in RCRA citizen suits, including citizen

suits brought by States, is so clear (see Point I.C. supra), it would

be incongruous to conclude that Congress did not intend to subject

the federal government to such penalties in direct RCRA enforce-

ment action» brought by the States.

13 See discussion of the federal government’s very limited enforce-

ment role at federal facilities, supra at 3 & n.2.

19

against federal facilities. On the contrary, for these very

reasons Congress affirmatively intended that States have

the important enforcement mechanism of civil penalties

available for use against all violators, including federa!

facilities.

Decentralized enforcement is critical to the effectiveness

of these regulatory regimes. Because the sources of pollu-

tion are so numerous and dispersed, state authorities are

better positioned to determine appropriate enforcement pri-

orities, and will have strong incentives to do so because

the primary effects of pollution will be felt locally."* For

these reasons, CWA and RCRA invest primary responsi-

bility for enforcement in the States.

Civil penalties are an important weapon in the States’

enforcement arsenals." Absent the threat of such penal-

™“Much of the nation’s environmental legislation relies on

state implementation, on the theory that state governments are

better situated to address local problems.” Comment, Lawmaker as

Lawbreaker, supra, 57 U. Chi. L. Rev. at 867. See The Federalist

Nos. 45 and 46 (J. Medison) (“By the superintending care of

{the States], all the more domestic and personal interests of the

people will be regulated and provided for. With the affairs of [the

States], the people will be more familiarly and minutely con-

versant.” ).

' The ubiquitous presence of civil penalty provisions in the U.S.

Code attests to the utility of civil penalties as a tool of regulatory

policy. See, e.g., the Atomic Energy Act, 42 U.S.C. $5841; Bank

Holding Company Act, 12 U.S.C. § 1847; Bank Protection and

Security Act, 12 U.S.C. § 1884; Clean Air Act, 41 U.S.C. § 7413

(d); CERCLA, 42 U.S.C. § 9609(a)-(c); Consumer Product Safety

Act, 15 U.S.C. § 2069; Emergency Planning and Community Right-

to-Know Act, 42 U.S.C. § 11045; Fair Housing Act, 42 U.S.C.

§ 3614; Fair Labor Standards Act, 29 U.S.C. $216; Federal

Aviation Act, 49 U.S.C. § 1475; Federal Election Campaign Act,

2 U.S.C. § 437(g); Federal Food Drug and Cosmetic Act, 21 U.S.C.

§ 333; Federal Home Loan Mortgage Corporation Act, 12 U.S.C.

§ 1457; Federal Insecticide, Fungicide, and Rodenticide Act, 7

U.S.C. § 1361(a); Hazardous Liquid Pipeline Safety Act, 49 U.S.C.

§$ 2007; Hazardous Materials Transportation Act, 49 U.S.C. § 1809

20

ties, a polluter has little reason to comply with regula-

tions unless and until the regulatory authority obtains a

judicial order requiring compliance. Given the limited

resources generally available to regulatory authorities, the

threat of civil penalties is an important means for in-

creasing compliance. Civil penalties also give regulatory

authorities an option short of seeking massive structural

injunctive relief when a particular violator might be

more appropriately brought into line through less harsh

measures.

DOE offers no persuasive reason why Congress would

have chosen to exempt federal facilities from civil penal-

ties under CWA and RCRA, but waive sovereign im-

munity for all other enforcement mechanisms—and none

exists. When Congress passed these laws, it knew that

federally owned facilities were major polluters.'® Pro-

hibiting States from'‘using civil penalties to combat the

serious environmental threat posed by federal facilities

would be utterly inconsistent with Congress’s objective in

waiving sovereign immunity.

Indeed, DOE’s interpretation of CWA and RCRA is

incongruous. In DOE’s view, States would be prohibited

from seeking civil penalties against federal facilities, but

would be empowered to seek sweeping structural injunc-

tive relief against federal facilities, including massive

monetary sanctions to coerce compliance with injunctive

orders. Because injunctive relief and contempt sanc-

tions are likely to impose far greater costs on the federal

government than would civil penalties, DOE’s reading of

these statutes cannot be justified as an effort to protect

the federal fisc. Furthermore, prohibiting the States from

using civil penalties increases the risk of prolonged non-

(a); Occupational Safety and Health Programs, 29 U.S.C. § 666.

16 See, e.g., S. Rep. No. 370, 95th Cong., Ist Sess. 67, reprinted in

1977 U.S. Code Cong. & Ad. News 4326, 4392 (CWA); H.R. Rep.

No. 294, 95th Cong., Ist Sess. 199 (1977) (same).

ae

21

compliance by federal facilities. Those facilities will have

absolutely no incentive to comply with CWA and RCRA

until ordered to do so by a court. Disabling States from

seeking civil penalties would also force States to resort to

more drastic injunctive measures more quickly, when the

less drastic remedy of a penalty might be more appro-

priate to a regulatory problem.

These considerations should inform the Court’s analysis

of the waivers of sovereign immunity in CWA and RCRA.

Cf. Canadian Aviator, 324 U.S. at 224-25 (waiver upheld

in part because no logical reason for construction urged

by government). DOKL’s reading of CWA and RCRA

““mpute([s| to Congress a desire for incoherence in a

body of affiliated enactments and for drastic legal dif-

ferentiation where policy justifies none.’ ” Franchise Tax

Bd, v. United Sirtes Posial Service, 467 U.S. 512, 524

(1984) (quoting Keifer & /eifer v. Reconstruction Fi-

nance Corp., 306 U.S. 381, 394 (1989)). As in Franchise

Tax Bd., Congress’s waiver of sovereign immunity should

not be construed to produce anomaious results,

Additionally, if DOK’s reading of the sovereign im-

munity provisions in CWA and RCRA prevails, federal

facilities wi!l be immune from civil penalties in enforce-

ment actions brought by States while state and loca! facili-

ties would remain fully subject to civil penalties in en-

forcement actions brought by the federal government."

Exempting the federal government from civil penalties

that remain applicable to state and local governments

would be utterly inconsistent with the States’ role as

equal partners in the innovative regulatory partnership

established by CWA and RCRA.

17 See Cleanup at Federal Facilities: Hearings Before the House

Subcommittee on Transportation, Tourism, and Hazardous Mate-

rials, supra, at 218-228 (subcommittee report documenting nu-

merous civil penalties against state and local governments obtained

under federal environmental laws, including CWA and RCRA).

eae

ee

CONCLUSION

The judgment of the court of appeals should be affirmed

with respect to Section 313 of CWA and Section 7002 of

RCRA, and should be reversed with respect to Section

H001 of RCRA,

Bruce J. ENNIS

DONALD B. VERRILLI, JR.

JENNER & BLOCK

21 Dupont Circle, N.W.

Washington, D.C. 20036

(202) 223-4400

BARRY LEVENSTAM

THOMAS C. BUCHELE

JENNER & BLOCK

One IBM Plaza

Chicago, IL 60611

(312) 222-9350

Of Counsel

September 13, 1991

Respectfully submitted,

RICHARD RUDA *

Chief Counsel

MICHAEL G. DZIALO

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 349

Washington, D.C. 20001

(202) 638-1445

* Counsel of Record for the

Amici Curiae