A waiver of sovereign immunity for the CWA?

Abstract

In 1992, the Supreme Court ruled in DOE v. Ohio, 112 S.Ct. 1627 (1992) that both the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) did not provide an explicit waiver of sovereign immunity which would allow enforcement of punitive fines and penalties (for past violations) against federal facilities. In response to this decision, Congress, in 1992, passed the Federal Facility Compliance Act (FFCA). This law amended RCRA to provide an explicit waiver of sovereign immunity. Members of Congress have expressed interest in amending the CWA to provide a similar waiver of sovereign immunity. This article discusses the arguments for and against including an FFCA-type waiver of sovereign immunity in the CWA. On its face, such a waiver would appear to be an attractive way to increase federal compliance with the CWA. However, it should not be assumed that such a waiver would increase CWA compliance in the same manner the FFCA has increased RCRA compliance. The article concludes that the best approach would be to provide a limited waiver of sovereign immunity for CWA violations. This limited waiver would allow punitive penalty enforcement by the Environmental Protection Agency (EPA) against federal agencies (even in those states that have state-run programs), but maintain the prohibition against state enforcement. This type of waiver would provide the benefits of punitive penalty enforcement, while protecting federal prerogatives from the vagaries of state enforcement actions.