# Amicus Curiae Brief — United States Department of Energy v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0095%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 500 U.S. 951 ## Text 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. (i) are voy oP is = —- a ae ie — _ es ee a a 5 3 la tat a eS oat fon ——— 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0095%3A10. Public record. Not legal advice.