Federal Supremacy and Sovereign Immunity Waivers in Federal Environmental Law

Barry Breen

Editors' Summary: Uncle Sam is both environmental policeman and environmental polluter. In 1970 Congress began to create a tough series of pollution control laws that govern the activities of private organizations and individuals. One of the great ironies of the early years of environmental law was that, while these deliberations were taking place, the air outside in the Capitol was often fouled by emissions from the federal government powerplant providing the electricity to light the congressional offices. The District of Columbia, required by Congress to enforce the new Clean Air Act, found itself nearly impotent in trying to clean up Congress' own pollution. The legal shield protecting the federal government as polluter was sovereign immunity, and over the last 15 years, Congress progressively lowered the shield. The author traces the history of waivers of sovereign immunity under environmental law, pointing out that the extent to which federal facilities can be held accountable varies considerably from statute to statute and activity to activity.

Mr. Breen was formerly Assistant to the General Counsel, Department of the Army, where he advised on environmental compliance requirements for military activities. The views expressed in this article are those of the author and do not necessarily represent the views of any federal agency.

[15 ELR 10326]

Federal environmental law prompts frequent reexamination of the fundamental nature of federalism. When Congress decided the country needed a national response to pollution, it concluded that the response had to be built upon a foundation of national, that is to say federal, law. Congress also recognized that a national system of pollution control law could most practically be enforced through existing state and local agencies. It created inexorable pressures to mold state and local law to new national models, though trying not to preclude states from doing more than seemed essential from a national perspective, and preserving areas of state law without counterpart in the federal schemes.

The federal government is the nation's most important drafter of environmental laws, but state and local governments are the most important enforcers. This sometimes coercive system by which we have tried to force states to mimic national legal schemes is one side of environmental federalism. The other stems from the fact that the federal government is not just an environmental lawmaker; it is also a major operator of facilities which themselves contribute to pollution. Federal agencies can be held accountable, to a degree, for compliance with state pollution control law.

The "federal environment" includes approximately a third of the nation's land directly owned by the federal government,¹ on which agencies conduct activities nearly as diverse as those in the private sector. These range in scope from use of hazardous chemicals by the military to pesticide application by the Forest Service. Materials handled range from the medical waste of Veterans' Administration hospitals to the radioactive by-products of the Energy Department. There are an estimated 20,000 federal facilities,² and by one authoritative compilation federal agencies spent $506 million in fiscal year 1982 to reduce pollution from such facilities.³

The federal government is charged with providing leadership in environmental protection,⁴ and the public scrutinizes the government's stewardship of the federal environment.⁵ Federal agencies themselves have extensive internal [15 ELR 10327] controls to assure the quality of their own environmental programs.⁶

To what extent must federal agencies adhere to state environmental law in their management of the federal environment? The question may arise within an agency, as it plans its actions. Or it may arise when an outside party — the Environmental Protection Agency (EPA), a state government, or a private person, for example — challenges agency action. This article examines existing law on the extent of mandatory federal facility compliance with state environmental law and the sanctions available for noncompliance.⁷ Although federal agencies usually must comply with such laws and sanctions, there are key exceptions. The result is a subtle legal structure in which understanding the relevant authorities is critical. The foundation doctrines are those of federal supremacy and sovereign immunity.

Federal Supremacy and Sovereign Immunity

The federal supremacy doctrine is based on the Constitution's Supremacy Clause.⁸ The leading articulation is still that of M'Culloch v. Maryland: "the government of the Union, though limited in its powers, is supreme within its sphere of action."⁹ State law cannot interfere. Chief Justice John Marshall reasoned for a unanimous Supreme Court that the federal government "is the government of all; its powers are delegated by all; it represents all, and acts for all. The nation, on those subjects on which it can act, must necessarily bind its component parts."¹⁰

"Sovereign immunity" is federal supremacy's procedural first cousin. It is the legal doctrine that bars an otherwise meritorious lawsuit against the federal government unless it has consented to being sued.¹¹ Without such consent, governmental immunity from suit is complete.¹² This doctrine is rooted partly in the medieval belief that the king could do no wrong.¹³ The reasoning may not be so old fashioned as it sounds.A similar rationale was advanced by Justice Oliver Wendell Holmes for the Supreme Court as recently as 1907: sovereign immunity is based "on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."¹⁴

There are otherreasons for the sovereign immunity doctrine. As the Supreme Court noted in 1939, "They partake somewhat of dignity and decorum, somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government as distinct from its functionaries may operate undisturbed by the demands of litigants."¹⁵

Unfettered, the federal supremacy and sovereign immunity doctrines might work manifest injustice. Just as private activities may injure private and local interests, so federal activities may also. Justice Felix Frankfurter asserted in dissent that the sovereign immunity doctrine "undoubtedly runs counter to modern democratic notions of the moral responsibility of the State."¹⁶

There is thus a tenuous balance between federal freedom of action on the one hand and respect for private and state government interests on the other.¹⁷ Courts have been careful to defer to Congress, as it strikes the balance among these competing policy goals by statute.¹⁸

This balance's modern history is one of gradually broader waivers of federal sovereign rights. For example, the 1955 forerunner of the Clean Air Act contained no provision at all regarding federal compliance with air pollution standards.¹⁹ In 1959 this statute was amended to provide that it is the "intent of Congress" that federal facilities shall cooperate with air pollution control agencies "to the extent practicable and consistent with the interests of the United States and within any available appropriations."²⁰ This basically hortatory language was repeated in 1963 in the law's revision into the Clean Air Act, together with a new requirement for federal facilities to obtain federal permits from the Secretary of Health, Education, and Welfare.²¹ Even these federal permits were for the limited purpose of controlling air pollution that might endanger human health or welfare.²² In 1970 Congress completely revised the Clean Air Act's waiver language to require federal facilities to comply with federal and state air pollution requirements, unless exempted by presidential determination.²³ This portion of the Clean Air Act was most recently amended in 1977 to make federal facilities subject also to state procedural requirements such as record-keeping, reporting, and applying for permits, and to state administrative and judicial authority.²⁴ While Congress has expanded waivers of sovereign immunity in environmental [15 ELR 10328] protection statutes like the Clean Air Act, it has not shifted the balance entirely to the states.

Interpreting Waivers: Are They "Clear and Unambiguous"?

Only Congress can compromise federal supremacy and sovereign immunity.²⁵ The leading case setting out the standard for interpreting these waivers is Hancock v. Train,²⁶ construing the waiver contained in the 1970 amendments to the Clean Air Act. As then written, the Act required federal facilities to comply with "Federal, State, interstate, and local requirements respecting control and abatement of air pollution to the same extent that any person is subject to such requirements." The Supreme Court considered whether this statutory language required federal facilities to obtain state air pollution permits, or whether adherence to the substantive requirements of state law was sufficient. Concluding that the permits need not be obtained, the Court explained, "Because of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is 'a clear congressional mandate,' 'specific congressional action' that makes this authorization of state regulation 'clear and unambiguous.'"²⁷

Each of the four major federal environmental-mediaspecific statutes — the Clean Air Act, Federal Water Pollution Control Act (FWPCA), Resource Conservation and Recovery Act (RCRA), and Noise Control Act — includes a federal facilities provision measurable by the "clear and unambiguous" standard.²⁸ Congressional waivers of federal supremacy and sovereign immunity may be analyzed across six variables:

(1) The mandate for substantive compliance with state law;

(2) The mandate for procedural compliance with state law — permits and approvals;

(3) The payment of permit fees — or are they taxes?

(4) Penalties for noncompliance;

(5) State-directed cleanup of federal hazardous waste sites; and

(6) Specialized waivers for particular facilities.

Substantive Compliance With State Law

Under the four environmental-media statutes, federal agencies must comply with all state requirements "respecting the control and abatement of" "air pollution,"²⁹ "water pollution,"³⁰ "solid waste or hazardous waste disposal,"³¹ and "environmental noise."³² Such compliance must be "in the same manner, and to the same extent" as that of any private party. Each act contains narrowly delineated presidential exemption procedures,³³ which have been exercised only twice since these statutes took their present form.³⁴ Both exemptions were one-year waivers for the temporary housing of Caribbean refugees at Fort Allen, Puerto Rico.³⁵

Even in this apparently expansive waiver of federal supremacy, there are reserved areas. Each act mandates compliance with state "requirements." Construing "requirements" in the context of the Noise Control Act, the First Circuit in 1981 concluded that the term means "relatively precise standards capable of uniform application to similar sources of sound."³⁶ The court provided as an example "a standard that sets forth, specifically, the allowable intensity, duration and character of sounds from a certain type of source." Thus, for example, general state nuisance law is not included within the waiver.³⁷

Similarly, under RCRA, a district court in 1985 noted that Congress intended to have requirements defined as "objective state standards of control," and "specific, precise standards."³⁸ "This narrow intrusion into federal sovereign immunity has required that courts strictly define requirements as objective and ascertainable state regulations; e.g., state pollution standards or limitations, compliance schedules, and control requirements."³⁹ Thus, the court found, state law assigning liability for costs of state responses to hazardous waste spills are not within the federal waiver.

The leading Supreme Court cases on environmental requirements for federal facilities were companion cases that focused on the meaning of "requirements" in the Clean Air Act and FWPCA, noting that virtually the same language is included in both waivers.⁴⁰ In reaching its conclusions on the meaing of "requirements" in the Noise Control Act, the First Circuit drew freely from the meaning of the same term in the Clean Air Act.⁴¹ The court noted the federal facilities provisions of the Noise Control [15 ELR 10329] Act, Clean Air Act, and FWPCA are similar as a matter of deliberate congressional choice.⁴² Similarly, the district court in analyzing RCRA relied on the meaning of "requirements" under other pollution abatement statutes.⁴³

Given its pivotal role in each of the statutes, it seems likely that "requirements" is a term of art with a speciallized meaning common to all four statutes. Congress expands upon its meaning by specifying additional coverage in a particular statute,⁴⁴ but otherwise the term alone seems limited to the specific, precise standards outlined above.

In addition to limits on the applicable state "requirements," there may also be areas in the scope of environmental activities for which supremacy is not waived. For example, the FWPCA waives federal supremacy for requirements "respecting control and abatement of water pollution." Does "water" include groundwater, or only surface water? The statute does not define "water," though it does define "navigable waters,"⁴⁵ Courts disagree over whether the regulatory provisions of the Act may be extended to regulation of groundwater.⁴⁶ The principal focus of the Act is certainly surface water.⁴⁷ Probably the better view is that the FWPCA waiver does not apply "clearly and unambiguously" to groundwater,⁴⁸ but this issue has apparently not been directly tested in court. Several specialized waivers in other statutes discussed below do deal explicitly with some forms of groundwater contamination, however,⁴⁹ so that the issue of scope of the FWPCA waiver sometimes is moot.

Another issue concerning the extent of the FWPCA waiver is whether it covers facilities causing pollution fromnonpoint sources such as run-off. The FWPCA notes that the waiver applies to activities that may result "in the discharge or runoff of pullutants,"⁵⁰ The available cases suggest that facilities causing run-off from precipitation are thus included,⁵¹ but siltation from a river's changing water level, due to operation of a federal dam, is not included.⁵²

Similar issues arise under RCRA, which mandates compliance with requirements "respecting control and abatement of solid waste or hazardous waste disposal."⁵³ The use of "disposal" suggests that other kinds of waste activities, or at least hazardous waste activities, are not covered. For example, the statute distinguishes "storage" and "treatment" as activities different from "disposal."⁵⁴ The legislative history is murky on the reason for adding the word "disposal" in the waiver.⁵⁵ Because of the ambiguity over whether the scope extends beyond disposal to storage and treatment, the waiver may not meet the clear- and-unambiguous standard for these activities. This issue has not been well tested in court, however, and the specialized waivers discussed below do go beyond disposal in certain circumstances.⁵⁶

Procedural Compliance With State Law — Permits and Approvals

Both the Clean Air Act and the FWPCA provide that the waiver of federal supremacy and sovereign immunity includes "any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever)."⁵⁷ Similarly, RCRA provides for compliance with "requirements, both substantive and procedural (including any requirement for permits or reporting . . .)."⁵⁸ Thus, within areas in which substantive compliance is mandated, state permits and approvals are also included under these statutes.

By contrast, the Noise Control Act provides merely for compliance with "requirements respecting control and abatement of environmental noise to the same extent that any person is subject to such requirements,"⁵⁹ No mention is made of any recordkeeping, reporting, permitting, or other procedural requirements. The operative language of the Noise Control Act is identical to that which the [15 ELR 10330] Supreme Court reviewed in the Clean Air Act in Hancock v. Train.⁶⁰ The Court there held that the language does not extend to state permitting requirements, and it is very likely federal facilities are not required to obtain any state noise permits under the Noise Control Act. However, such permits apparently are required by Executive Order.⁶¹

Permit Fees — Or Are They Taxes?

Although the federal government cannot be taxed by the states without its consent, it must pay state or local fees associated with required permits, and can use appropriated funds for this purpose.⁶² Sometimes, however, a state may assess a fee larger than necessary to cover the administrative costs of the permit review process. The additional collection may be a part of an effort to add to a state's general revenues, or it may finance a particular program, such as the state's environmental emergency response program. The Department of Justice has reviewed applicable case law and provided a three-part test for distinguishing permissible fees from impermissible taxes.⁶³

(1) Is the charge imposed without discriminating between government and private entities?

(2) Is the charge a fair approximation of the cost of the benefits received by the payer?

(3) Is the charge structured to produce revenues that will not exceed the total cost to the state of the benefits to be supplied?

Fees are those charges for which all three questions are answered affirmatively; taxes are those charges for which one or more questions is answered negatively. Using this analysis, the Department of Justice determined that charges to finance a state's oil spill contingency fund are really taxes, despite the fact that they had been labelled fees. In the three-part analysis above, the first question was answered affirmatively, but the second question was answered negatively because benefits of the fund accrued to the public at large and not primarily to payers. The third question was also answered negatively, in part because the state could recoup fund expenditures from responsible parties even if the parties had already contributed to the fund.⁶⁴

Penalties For Non-Compliance

Both the Clean Air Act and the FWPCA waive sovereign immunity for "any process and sanction, whether enforced in Federal, State or local courts on in any other manner."⁶⁵ Thus, even the payment of fines imposed by state administrative agencies is required under these acts.⁶⁶

By contrast, RCRA's waiver is narrower: it provides only for "injunctive relief and such sanctions as may be imposed by a court to enforce such relief."⁶⁷ In the ordinary use of the term, "injunctive relief" may only issue from a court⁶⁸ and the statute specifies that sanctions to enforce the order must come from a court. Immunity from administrative enforcement is not waived. Immunity from ordinary fines, whether from a court or administrative agency, is not waived either.

The Noise Control Act waiver does not mention sanctions.⁶⁹ It seems likely federal facilities would not be required to pay fines or comply with noise control orders imposed by a state court or administrative authority.

Those statutory waivers that make federal agencies liable for state sanctions are subject to certain general restrictions. Firsr, each of the acts provides that the waiver of sovereign immunity, within its scope, is for compliance to the same extent as any private person. Thus, it is likely that state attempts to penalize federal facilities more harshly than similarly situated private facilities would be invalid. The Comptroller General has noted that federal agencies can be liable for fines if, among other things, "federally owned facilities are treated in the same manner as non-federally owned facilities."⁷⁰ Second, injunctive relief under all of the acts remains a matter of equitable discretion for the court. A judge convinced a federal facility is in violation of an environmental statute is free to order it to come into compliance without ordering it to cease operations in the meantime.⁷¹ As a practical matter, federal agencies generally have a right of removal to federal court if proceedings are brought against them in state courts,⁷² and federal courts may consider federal priorities more favorably than would a state court. Finally, none of the acts make the United States open to criminal prosecution for violation of state law.⁷³

State-Directed Cleanup of Federal Hazardous Waste Sites

Whether state regulatory officials may direct the manner and extent of cleanup of federal hazardous waste sites is [15 ELR 10331] one of the newest issues of sovereign immunity. RCRA waives immunity for "requirements, both substantive and procedural (including . . . any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief). . . ."⁷⁴ "Requirements" is a term limited to objective standards unless explicitly broadened in a particular statute.⁷⁵ Unlike the Clean Air Act and FWPCA, RCRA has no provision for compliance with "administrative authorities."⁷⁶ States may impose "injunctive relief," but by definition that term seems limited to judicial orders, not administrative orders.⁷⁷ Consequently, § 6001 of RCRA probably does not waive federal supremacy and sovereign immunity for compliance with state administrative orders for hazardous waste site cleanup, though the issue has not been tested in court.

The principal federal statute for hazardous waste cleanup is the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).⁷⁸ The federal facility provision in CERCLA clearly waives sovereign immunity for compliance with CERCLA itself, but also clearly does not waive immunity for compliance with comparable state laws.⁷⁹

Specialized Waivers for Particular Facilities

In addition to the general waivers of federal supremacy and sovereign immunity in the regulatory statutes analyzed above, Congress has enacted two important specialized statutes. The Safe Drinking Water Act⁸⁰ and the Underground Storage Tank program recently added to RCRA⁸¹ have specialized waivers.

The waiver in the Safe Drinking Water Act⁸² applies to federally owned or maintained public water systems and federal activities that may result in underground injection endangering drinking water. These must comply with state laws on safe drinking water and underground injection. Though the substantive scope of the waiver is thus narrow, for matters it does cover, the mandatory compliance is broad, extending to "requirements, administrative authorities, and process and sanctions." Unlike the comparatively narrow waiver in RCRA, the waiver here for compliance with administrative authorities probably includes cleanup orders and schedules directed by a state administrative agency. Moreover, the statute elaborates that the waiver of immunity from "process and sanctions" includes those enforced in court "or in any other manner." Administrative imposed fines are thus probably included.

Similarly, in 1984 Congress amended RCRA to address underground storage tanks.⁸³ Section 9007 of the Act now provides that federal agencies "having jurisdiction over any underground storage tank" shall comply with state and local "requirements, applicable to such tank, both substantive and procedural . . . including payment of reasonable service charges." This is a moderate expansion of the general solid and hazardous waste waiver in § 6001 of the Act.⁸⁴ While it is clear that use of such tanks for storage (rather than just disposal) is now covered,⁸⁵ the waiver is still limited to "requirements."⁸⁶ The section waives sovereign immunity from "any process or sanction of any State or Federal court with respect to the enforcement of any such injunctive relief." The provision only clearly and unambiguously waives sovereign immunity from injunctions and subsequent judicial sanctions, rather than administrative orders and sanctions.

Administrative Guidance — Executive Order 12088

Besides the statutory waivers, the other principal legal authority in the field is Executive Order 12088, "Federal Compliance with Pollution Control Standards."⁸⁷ Issued by the President in 1978, the Executive Order requires executive branch agencies to cooperate and consult with state and local environmental agencies, though not necessarily to agree to the guidance such regulators may provide.⁸⁸ The Executive Order also directs executive branch agencies to comply with "applicable pollution control standards," where that term is defined to mean "the same substantive, procedural, and other requirements that would apply to a private person."⁸⁹ The Executive Order, like the statutes, defines the obligation to comply with state and local law in terms of "standards" and "requirements."⁹⁰ Consequently, it probably puts no new obligations on federal agencies to comply with state nuisance law, liability allocations, directions to take response actions at federal hazardous waste sites, taxes, fines, or other matters which are not requirements.

Because the Executive Order does not limit its application to any particular environmental medium, as policy guidance to federal agencies it does fill in some gaps between the statutory waivers of sovereign immunity. Thus, the Executive Order directs federal agencies to comply with requirements even if they relate to hazardous waste storage and treatment (not merely disposal)⁹¹ or water pollution standards even if they relate to groundwater (not merely surface water).⁹² The Executive Order covers procedural requirements, so permits are included along with substantive compliance. As a result, although noise permits are not required under the Noise Control Act,⁹³ they probably are required under the Executive Order.Finally, reasonable permit fees must probably be paid when applying for such permits, as a fair cost for obtaining the service that the President has decided is needed.

[15 ELR 10332]

The Executive Order, on the other hand, is not a new waiver of sovereign immunity. Only the Congress can waive sovereign immunity.⁹⁴ The Executive Order is best seen as a management document containing instructions from a superior to subordinates. It merits good-faith compliance, but does not itself create enforceable legal rights in private parties.⁹⁵

There may still be judicial relief for a private party alleging that a federal agency is violating a standard or has failed to apply for a permit in an environmental medium covered by the Executive Order but not by one of the statutes. Injunctive relief to force compliance might be available. In Sierra Club v. Peterson,⁹⁶ the Ninth Circuit concluded that the Executive Order required the Forest Service to obtain a state permit for its spraying program, and that § 10 of the Administrative Procedure Act⁹⁷ was the congressionally enacted waiver of sovereign immunity. However, in analogous circumstances analyzing a presidential order based on his authority as chief executive rather than a statutory delegation of authority, the First Circuit found that such a management directive does not have the force and effect of law.⁹⁸ Whether injunctive relief is available for allegations of noncompliance with Executive Order 12088 may thus require further development of the case law. Even if injunctive relief is available, it does not extend to fines and other money sanctions, as the underlying authority is that of the Administrative Procedure Act.

Conclusion

The "federal environment" is an important part of the overall national environment. Because of the constitutional structure of the federal system and long-standing doctrines of governmental freedom of action, federal facilities are subject to state environmental law only to the extent Congress has clearly and unambiguously made them so.Congress and the President have stated the general proposition that federal facilities must comply with state environmental law, but careful attention must be paid to the precise language of the congressional waivers to determine their scope. The extent to which federal agencies are subject to state substantive and procedural requirements, and liable for sanctions upon violating those requirements, varies significantly from one statute to the next.

1. 1983 CEQ ANN. REP. 272, 273 (1984).

2. See 1 C.F.R. § 305.75-4(a).

3. 1983 CEQ ANN. REP. 326 (1984).

4. Exec. Order No. 11514 § 1, 3 C.F.R., 1966-1970 Comp. 902, ELR REG. 45003.

5. Such attention is not new. See Shaw, The Procedures to Ensure Compliance by Federal Facilities with Environmental Quality Standards, 5 ELR 50211 (1975). Recently much attention has focused on hazardous waste. See, for example, GENERAL ACCOUNTING OFFICE, STATUS OF CIVILIAN FEDERAL AGENCIES' EFFORTS TO ADDRESS HAZARDOUS WASTE PROBLEMS ON THEIR LANDS (September 28, 1984); GENERAL ACCOUNTING OFFICE, EFFORTS TO CLEAN UP DOD-OWNED INACTIVE HAZARDOUS WASTE DISPOSAL SITES (April 12, 1985); Review of Hazardous Waste Disposal Practices at Federal Facilities: Hearing Before a Subcomm. of the House Comm. on Government Operations, 98th Cong., 1st Sess. (1983); Peterson, Toxic Waste Laws: U.S. May Be Biggest Violator, Washington Post, Aug. 17, 1983, at A1, A6.

6. See Council on Environmental Quality, National Environmental Policy Act (NEPA) Implementation Procedures, Appendix I, 49 Fed. Reg. 49450 (1984).

7. For brevity, the text refers only to compliance with state law, but there are few if any legal distinctions between state and local law for these purposes.

The article focuses on the status of federal agencies. On the extent of immunity provided to operating government-owned industrial facilities, see United States v. Pennsylvania Environmental Hearing Board, 584 F.2d 1273, 8 ELR 20689 (3d Cir. 1978). In such contractor cases, the additional doctrine of legislative jurisdiction is also relevant. This is a choice of laws doctrine concerning which law governs private conduct on federal installations.

8. U.S. CONST., art. VI, cl. 2.

9. 17 U.S. (4 Wheat.) 316, 405 (1819).

10. Id.

11. BLACK'S LAW DICTIONARY 1252 (5th ed. 1979). The sovereign immunity doctrine generally applies to state governments, with exceptions as carved out in state law, the Constitution, or a constitutional exercise of congressional authority.

12. United States v. Shaw, 309 U.S. 495, 502 (1939).

13. See Principe Compania Naviera, S.A. v. Board of Commissioners of the Port of New Orleans, 333 F. Supp. 353, 355 (E.D. La. 1971).

14. Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907).

15. United States v. Shaw, 309 U.S. at 501.

16. Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 59 (1943) (Frankfurter, J., dissenting). See also Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 724 n.13 (1948) (Frankfurter, J., dissenting).

17. See generally Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 HARV. L. REV. 1060 (1946).

18. See, e.g., Hancock v. Train, 426 U.S. 167, 179, 6 ELR 20555, 20558 (1976).

19. Pub. L. No. 84-159, 69 Stat. 322 (1955).

20. Pub. L. No. 86-365, § 2, 73 Stat. 646 (1959).

21. Pub. L. No. 88-206, § 7, 77 Stat. 392, 399 (1963).

22. Id.

23. Pub. L. No. 91-604, § 5, 84 Stat. 1676, 1689 (1970), codifiedat 42 U.S.C. §§ 7401-7642, ELR STAT. 42201.

24. Pub. L. No. 95-95, § 116, 91 Stat. 685, 711 (1977).

25. Hancock v. Train, 426 U.S. at 179, 6 ELR at 20558 (1976).

26. Id.

27. Id. (footnotes omitted). In Hancock v. Train the Court addressed whether obtaining a state permit was required of federal agencies. If the permit were required, failure to obtain it would have had the effect of prohibiting operation of the federal facilities themselves. 426 U.S. at 180, 6 ELR at 20558. Subsequent case law has applied the same standard to the issue of whether state environmental regulations apply at all to federal activities. Minnesota v. Hoffman, 543 F.2d 1198, 1209, 7 ELR 20066, 20071 (8th Cir. 1976), cert. denied 430 U.S. 977 (1977). See also Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 211, 6 ELR 20563, 20566 (1976) ("Federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous.")

28. Clean Air Act § 118, 42 U.S.C. § 7418, ELR STAT. 42220; FWPCA § 313, 33 U.S.C. § 1323, ELR STAT. 42138; RCRA § 6001, 42 U.S.C. § 6961, ELR STAT. 42032; and the Noise Control Act § 4, 42 U.S.C. § 4903, ELR STAT. 41502.

29. Clean Air Act § 118(a), 42 U.S.C. § 7418(a), ELR STAT. 42220.

30. FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. 42138.

31. RCRA § 6001, 42 U.S.C. § 6961, ELR STAT. 42032.

32. Noise Control Act § 4(b), 42 U.S.C. § 4903(b), ELR STAT. 41502.

33. See supra notes 29-32. The FWPCA provision for presidential exemption is in subparagraph (b).

34. See Puerto Rico v. Muskie, 507 F. Supp. 1035, 1039, 11 ELR 20424, 20425 (1981), injunction vacated sub nom. Marquez-Colon v. Reagan, 668 F.2d 211, 12 ELR 20286.

35. Exec. Order No. 12244, 45 Fed. Reg. 66443 (1980); Exec. Order No. 12327, 46 Fed. Reg. 48893 (1981).

36. Romero-Barcelo v. Brown, 643 F.2d 835, 855, 11 ELR 20391, 20402 (1st Cir. 1981) (footnote omitted), rev'd on other grounds sub. nom. Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982).

37. Id. at 856, 11 ELR at 20402.

38. Florida Dep't of Envtl. Regulation v. Silvex Corp., 15 ELR 20312 (M.D. Fla. Jan. 28, 1985).

39. Id.

40. Hancock v. Train, 426 U.S. 167, 6 ELR 20555 (1976); Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. at 214, 6 ELR at 20567.

41. Romero-Barcelo v. Brown, 643 F.2d at 854-855, 11 ELR at 20401-402.

42. Id. at 854 nn. 34, 35, 11 ELR at 20401.

43. Florida Dep't of Envtl. Regulation v. Silvex Corp., 12 ELR 20538.

44. For example, both the Clean Air Act and FWPCA waive immunity from "the exercise of any Federal, State, or local administrative authority," probably sufficient to require compliance with state remedial orders for these media. Cf. infra text accompanying notes 74-77.

45. Section 502(7), 33 U.S.C. § 1362(7), ELR STAT. 42146.

46. See Dycus, Development of a National Groundwater Protection Policy, 11 B.C. ENVTL. AFF. L. REV. 211 (1984), and authorities cited therein.

47. See Grad, 1 TREATISE ON ENVIRONMENTAL LAW § 3.05[6].

48. This view may be implicit in the Environmental Protection Agency's proposed rules providing for its consideration of, but not necessarily adherence to, state groundwater requirements in implementing its hazardous waste cleanup program. 50 Fed. Reg. 5861, 5864-5867, 5906-5907, 5928 (1985) (to be codified at 40 CFR 300) (proposed Feb. 12, 1985).

49. See infra text accompanying notes 80-86.

50. Section 313(a), 33 U.S.C. § 1323(a), ELR STAT. 42138.

51. Northwest Indian Cemetery Protective Ass'n v. Peterson, 565 F. Supp. 586, 604-605, 13 ELR 20793, 20801 (N.D. Cal. 1983).

52. Missouri ex. rel. Ashcroft v. Dep't of the Army, Corps of Engineers, 526 F. Supp. 660, 678, 12 ELR 20359, 20366 (W.D. Mo. 1980); aff'd 672 F.2d 1297, 12 ELR 20368 (8th Cir. 1982). These courts found that the threshold requirement of "discharge or runoff of pollutants" applies to both "facilities" and "activities." The Sixth Circuit declined to rule on this issue, finding only that dams do not require state point source permits. United States v. Tennessee Water Quality Control Board, 717 F.2d 992 (1983).

53. Section 6001, 42 U.S.C. § 6961, ELR STAT. 42032 (emphasis added).

54. Sections 1004(33), (34); 42 U.S.C. §§ 6903(33), (34), ELR STAT. 42006.

55. This language was added to Pub. L. No. 94-580 as an amendment on the House floor. 122 CONG. REC. 32625 (1976). The sponsor indicated as a purpose of the amendment that it "[r]equires Federal facilities to comply with State and local solid waste plans." 122 CONG. REC. 32631 (1976). Another congressman noted "Federal facilities will be subject to State law and regulations." 122 CONG. REC. 32599 (1976). The use of the word "disposal" was not specifically explained.

The amendment thus added on the House floor appears to have been adopted from a bill already passed by the Senate. S. 2150, 94th Cong., 2d Sess., § 223, 122 CONG. REC. 21401 (1976). This was the Senate's understanding when it concurrent in the House amendments. 122 CONG. REC. 33817 (1976). Though the committee report on that Senate bill is not substantive (see S. REP. NO. 869, 94th Cong., 2d Sess. (1976)), Senate floor debate indicates that the committee report on a different bill (S. 3622) is relevant. 122 CONG. REC. 21402 (1976), referring to S. REP. 988, 94th Cong., 2d Sess. (1976). That report speaks only of federal facility compliance with disposal requirements. S. REP. 988, 94th Cong., 2d Sess. 23-25 (1976).

56. See infra text accompanying notes 80-86.

57. Clean Air Act, § 118(a), 42 U.S.C. § 7418(a), ELR STAT. 42220, FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. 42138. The Clean Air Act is quoted in the text. The FWPCA language is identical, with the addition of a comma following "requirement" the final time that word appears.

58. Section 6001, 42 U.S.C. § 6961, ELR STAT. 42032.

59. Section 4(b), 42 U.S.C. § 4903(b), ELR STAT. 41502.

60. 426 U.S. 167, 171-172, 6 ELR 20555, 20556 (1976). Of course, the Clean Air Act has since been amended to include procedural requirements within the scope of the waiver. See supra text accompanying notes 23-24.

61. See infra text accompanying note 93.

62. M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) long ago established the principle that states may not tax agencies of the federal government. The Comptroller General more recently ruled on the use of agency appropriations to pay permit fees, 58 Comp. Gen. 244 (B-193379) (January 26, 1979).

63. Summarized from letter from Chief, Environmental Defense Section, U.S. Department of Justice to Assistant Attorney General, State of Maryland (December 6, 1983).

64. Id.

65. Clean Air Act § 118(a), 42 U.S.C. § 7418(a), ELR STAT. 42220, FWPCA § 313(a), 33 U.S.C. § 1323(a), ELR STAT. 42138 (emphasis added).

66. The Comptroller General has approved use of appropriated funds to pay such penalties. See 58 Comp. Gen. 667 (B-194508) (1979) and unpub. dec. B-191747 (1978).

67. Section 6001, 42 U.S.C. § 6961, ELR STAT. 42032.

68. BLACK'S LAW DICTIONARY 705 (5th ed. 1979).

69. Section 4(b), 42 U.S.C. § 4903(b), ELR STAT. 41502.

70. Unpub. dec. B-191747 (June 6, 1978).

71. Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982).

72. 28 U.S.C. § 1441.

73. See California v. Walters, 751 F.2d 977, 14 ELR 20922 (9th Cir. 1984). The court was careful to limit its holding to criminal prosecution against the United States, distinguishing this from prosecutions against federal officers or federal agencies. Id., at 979, 14 ELR at 20923.While prosecutions against individual officials are imaginable in certain circumstances such as ultra vires acts, it is difficult to imagine circumstances in which prosecution of a federal executive branch agency is anything other than a prosecution of the United States.

74. Section 6001, 42 U.S.C. § 6961, ELR STAT. 42032.

75. See supra text accompanying notes 36-44.

76. See supra text accompanying notes 65-68.

77. BLACK'S LAW DICTIONARY 705 (5th ed. 1979).

78. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

79. CERCLA § 107(g); 42 U.S.C. § 9607(g), ELR STAT. 41948.

80. 42 U.S.C. §§ 300f-300j-10, ELR STAT. 41101.

81. RCRA §§ 9001-9010, 42 U.S.C. §§ 6991-6991i, ELR STAT. 42045, as added by Pub. L. 98-616, § 601, 98 Stat. 3277-87.

82. Section 1447; 42 U.S.C. § 300j-6, ELR STAT. 41115. There are no generally reported judicial opinions construing this waiver.

83. See supra note 81. See generally, Miller & Taylor, The Enemy Below: EPA Plans Action on Leaking Underground Storage Tanks, 15 ELR 10129 (May 1985).

84. 42 U.S.C. § 6961.

85. See supra text accompanying notes 53-56.

86. See supra text accompanying notes 36-44.

87. 43 Fed. Reg. 47707 (1978), ELR REG. 45033.

88. Id., §§ 1-201, 1-202 (emphasis added).

89. Id., §§ 1-102, 1-103.

90. See supra text accompanying notes 36-44.

91. See supra text accompanying notes 53-56.

92. See supra text accompanying notes 45-49.

93. See supra text accompanying notes 59-61.

94. Hancock v. Train, 426 U.S. 167, 179, 6 ELR 20555, 20558 (1976).

95. See Rysavy v. Harris, 457 F. Supp. 796 (D.S.D. 1978) (finding Exec. Order No. 11752, a predecessor Executive Order, did not create a private cause of action for its enforcement).

96. 705 F.2d 1475 (9th Cir. 1983). See also Oregon Environmental Council v. Kunzman, 714 F.2d 901, 13 ELR 20901 (9th Cir. 1983).

97. 5 U.S.C. § 702. This section provides "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

98. Romero-Barcelo v. Brown, 643 F.2d 835, 844-845, 11 ELR 20391, 20402 (1st Cir. 1981), rev'd on other grounds sub. nom. Weinberger v. Romero-Barcelo, 456 U.S. 305, 12 ELR 20538 (1982).