29 ELR 10665 | Environmental Law Reporter | copyright © 1999 | All rights reserved

State Liability for Environmental Violations: The U.S. Supreme Court's "New" Federalism

Editors' Summary: In this Article, the authors examine whether the U.S. Supreme Court's recent "federalism trilogy"—Alden v. Maine, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank—restrict the ability of Congress to regulate state compliance with federal environmental statutes. The authors begin with a review of the facts and holdings of the cases. They then discuss the enforcement mechanisms—"good faith of the states," voluntary state consent to suits (and the scope of Congress' "spending power" after South Dakota v. Dole), Fourteenth Amendment powers to statutorily enforcethe due process and equal protection guarantees, suits against municipal governments, Ex parte Young-type suits, and suits by the United States against states—that according to Justice Kennedy's opinion in Alden remain. In addition, Congress retains the ability to use its commerce power, seemingly undiminished in the environmental arena after United States v. Lopez, to regulate most matters that have potential environmental implications. The authors conclude that the federalism decisions will, in light of the surviving enforcement options, likely have limited practical impact upon Congress' authority to enact and ensure enforcement of environmental statutes.

Stephen R. McAllister is the Associate Dean for Academic Affairs and Professor of Law, University of Kansas School of Law. Robert L. Glicksman is the Robert W. Wagstaff Professor of Law, University of Kansas School of Law. Professor McAllister also serves as the State Solicitor for the state of Kansas. Views expressed in this Article, however, are the personal views of the authors and do not necessarily represent the views of the state of Kansas on the issues addressed. The authors thank Ann D. Fellows, University of Kansas School of Law, Class of 2000, for her research assistance.

[29 ELR 10665]

During the 1990s, the "Rehnquist" Court has revived debate about the fundamental nature of American federalism.¹ In a series of important decisions, always decided with the same five justices in the majority² and almost always by 5-4 votes,³ the U.S. Supreme Court has struck down a number of federal laws on the ground that the statutes surpass Congress' institutional authority. Sometimes the Court has concluded that Congress exceeded its Article I enumerated powers⁴ or its Fourteenth Amendment enforcement powers⁵; at other times the Court has relied on the Tenth Amendment,⁶ the Eleventh Amendment,⁷ or the doctrine of state sovereignty that predates the U.S. Constitution to invalidate federal laws that affect the states.⁸

Taken as a whole, the Court's federalism decisions have made it more difficult for Congress both (1) to regulate the states themselves directly and (2) to subject states to suit in federal or state courts for violations of federal statutes. These two developments have potential implications for the implementation and enforcement of federal environmental laws, a topic that this Article explores. First, federal environmental laws generally are premised on Congress' Article I power to regulate interstate commerce, a power that the Court held in United States v. Lopez⁹ is not unlimited.¹⁰ In situations involving what is sometimes referred to as "environmental [29 ELR 10666] racism" Congress might also legislate pursuant to its power under section 5 of the Fourteenth Amendment to enforce the Fourteenth Amendment's guarantees of due process and equal protection. However, the Court recently has decided that the section 5 power is, likewise, not unlimited.¹¹ Until recently, most federal environmental regulation seemed safely beyond the realm of successful constitutional challenge. In light of these developments, questions may now arise regarding the scope of Congress' constitutional authority to regulate environmental matters, at least in some circumstances.

Second, even assuming that Congress has constitutional authority to regulate environmental matters generally, the Court's recent decisions raise serious questions about Congress' power to compel the states to assist in the enforcement of federal environmental laws, or to provide for the enforcement of federal environmental laws against the states themselves. Recent decisions make clear that the states cannot, at least not by virtue of Congress' commerce power, be compelled to enact state legislation to implement federal requirements,¹² or to provide the personnel necessary to enforce a federal law.¹³ Nor can Congress subject the states themselves to suit in federal or state court for violations of federal laws based on Congress' commerce power.¹⁴ Congress has the authority to abrogate state immunity pursuant to its Fourteenth Amendment enforcement power, but the Court's recent decisions have narrowed that authority.¹⁵ Taken together, these cases raise questions about Congress' power to ensure that federal environmental laws are enforced, even assuming Congress has the power to enact the laws in the first place.

This Article initially describes the Court's most recent federalism decisions, a trio of cases decided on the final day of the October 1998 Term. The most important case, Alden v. Maine,¹⁶ establishes a significant new constitutionally protected immunity for the states from suits by private parties in state court for violations of federal statutes. The other two cases involve the extent of Congress' enforcement power under the Fourteenth Amendment.¹⁷ Although both decisions narrow the scope of that authority, they probably are less significant in the context of enforcing the federal environmental laws, which generally are not premised on Congress' Fourteenth Amendment power. The Article also briefly summarizes the three additional federalism cases that the Court already has agreed to decide during the October 1999 Term.¹⁸ One of those cases may be of particular significance with respect to the enforcement of federal environmental laws.¹⁹

This Article then provides an analysis of the Court's recent federalism decisions and their significance. Particular attention is paid to the practical significance, or lack thereof, of the states' immunity from private suits for violations of federal law.The Article evaluates the enforcement mechanisms that remain available and considers their adequacy, with particular attention to the enforcement of environmental laws. It also discusses important questions the Court's recent decisions raise, but do not answer, the trends that may be identified from these decisions, and the possible implications of the direction in which the Court is headed.

The Supreme Court's Federalism Decisions, 1999-2000

October 1998 Term

Alden v. Maine

In its most significant federalism decision of the past term, Alden v. Maine,²⁰ the Court held that Congress lacks the power to subject unconsenting states to suits in state court for alleged violations of the federal Fair Labor Standards Act (FLSA).²¹ The plaintiffs in Alden, state probation officers who alleged that Maine had violated the overtime provisions of the FLSA, originally filed suit against the state of Maine in federal court, seeking compensation and liquidated damages. The federal district court dismissed the suit on the basis of the Court's then recent decision in Seminole Tribe of Florida v. Florida,²² which held that Congress lacks the constitutional power under Article I to abrogate the states' Eleventh Amendment immunity from suits in federal court. The probation officers then refiled their suit in state court, a forum in which the Court has expressly held that the Eleventh Amendment does not apply.²³ Nonetheless, the state courts dismissed the suit on the ground that it was barred by sovereign immunity, placing that issue squarely before the Court in Alden.

In his opinion for the Court, Justice Kennedy engaged in a lengthy discourse on the history and constitutional status of state sovereign immunity. In Part I of the opinion, Justice Kennedy examined and discussed the Framers' understanding of state sovereign immunity. He also reviewed the status [29 ELR 10667] of the state sovereign immunity doctrine in 1787 and the Court's first decision on the topic, Chisholm v. Georgia,²⁴ which led to the prompt proposal and ratification of the Eleventh Amendment.²⁵ Following his distillation of the historical evidence, the results of which the dissenters vigorously disputed,²⁶ Justice Kennedy concluded that the states' sovereign immunity derives not from the Eleventh Amendment itself, but from the structure of the original Constitution. Thus, in the majority's view, "the Eleventh Amendment confirmed rather than established [state] sovereign immunity as a constitutional principle."²⁷

In Part II, Justice Kennedy addressed the question whether Congress has the power under Article I to abrogate the states' sovereign immunity in their own courts from suits based on federal law.²⁸ Justice Kennedy concluded that neither the Constitution's text, nor the Court's own recent sovereign immunity decisions, suggest that Congress has such authority under the Constitution. Moreover, he made clear that it makes no difference that the Eleventh Amendment, on its face, does not apply to suits against states in state court.²⁹

In the final three sections of the opinion, which combined amount to only a fraction of the length of Parts I and II, the Court discussed inter alia the effect of its holding on the enforcement of federal law against the states. Part III identifies at least five enforcement mechanisms that, in the Court's view, remain available to ensure that states comply with federal law, even when the states cannot be sued for violations of that law.

In particular, Part III identifies the following five alternatives for ensuring the states' compliance with federal law: (1) "the good faith of the states"³⁰; (2) "voluntary" state consent to suits for violations of federal law, including apparently "consent" obtained by Congress' exercise of its spending power³¹; (3) Congress' power to abrogate states' sovereign immunity pursuant to its Fourteenth Amendment, section 5 powers to enforce the due process and equal protection guarantees of that amendment³²; (4) suits against municipal governments, which are not protected by the Eleventh Amendment nor any other constitutional sovereign immunity doctrine³³; and (5) Ex parte Young³⁴-type suits for injunctive relief directed against individual state officials.³⁵ In the final paragraph of its decision, the Court observes that an additional enforcement mechanism is for the United States to sue a state directly in federal court in order to enforce compliance with federal law.³⁶ Thus, in light of its reading of constitutional history (and pre-history), the Constitution's text and structure, and 200 years of precedent, the majority in Alden held that Congress lacks the authority under Article I to subject unconsenting states to suit in state court for violations of federal statutes.

The Florida Cases

] [ College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board. In one of two related federalism cases, the Court in College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board,³⁷ held that Congress lacks the authority under section 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity from suit in federal court for alleged violations of federal trademark statutes. The underlying suit involved claims by a private entity that the state of Florida had engaged in false and misleading advertising in violation of § 43(a) of the Lanham Act³⁸ in connection with the operation of a state tuition prepayment program.³⁹ The state argued that Congress lacked the constitutional authority to abrogate the state's Eleventh Amendment immunity, and the Court, by a familiar 5-4 majority, agreed.

Writing for the Court, Justice Scalia pointed out that Congress cannot rely on its commerce power to abrogate Eleventh Amendment immunity,⁴⁰ and that section 5 of the Fourteenth Amendment gives Congress the power to abrogate state immunity only to remedy or prevent constitutional, i.e., Fourteenth Amendment, violations.⁴¹ The plaintiff argued that the trademark laws recognize, prohibit, and provide a remedy for at least two potential constitutional violations by states: (1) "a right to be free from a business competitor's false advertising about its own product"⁴²; and (2) "a more generalized right to be secure in one's business interests."⁴³ The Court, however, held that "neither of these qualifies as a property right protected by the Due Process Clause"⁴⁴ of the Fourteenth Amendment. Therefore, Congress could not rely upon its section 5 powers in abrogating Eleventh Amendment immunity for false or misleading advertising.

The Court rejected plaintiff's first alleged property interest on the grounds that the "hallmark of a protected property interest is the right to exclude others"⁴⁵ and that the Lanham Act's false advertising provisions "bear no relationship to any right to exclude."⁴⁶ Nor did any alleged misrepresentations [29 ELR 10668] by the state intrude upon any "interest over which petitioner had exclusive dominion."⁴⁷ The Court also rejected the argument that "business interests" are a protected property right, concluding that "business in the sense of the activity of doing business, or the activity of making a profit is not property in the ordinary sense—and it is only that, and not any business asset, which is impinged upon by a competitor's false advertising."⁴⁸ In the absence of a constitutionally cognizable interest, the Court found it unnecessary to "pursue the follow-on question" that the City of Boerne v. Flores⁴⁹ analysis would otherwise require—whether the abrogation of Eleventh Amendment immunity for violations of § 43(a) "was genuinely necessary to prevent violation of the Fourteenth Amendment."⁵⁰

Importantly, the Court then proceeded to hold that the state did not voluntarily waive its Eleventh Amendment immunity by actively engaging in interstate commerce. The plaintiff and the United States argued in favor of finding constructive or implied waiver on the basis of the Court's decision in Parden v. Terminal Railroad Co. of Alabama Docks Department.⁵¹ In Parden, the Court found an implied waiver of Eleventh Amendment immunity when a state chose to engage in an activity (operating a railroad) that was regulated by federal statutes which included a provision for suits directly against states. Describing Parden as "an elliptical opinion"⁵² and correctly identifying it as running counter to numerous subsequent Eleventh Amendment decisions that require a clear and express waiver before a state's Eleventh Amendment immunity is lost, the Court expressly overruled Parden.⁵³

] [ Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank. In a related case, the Court in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank,⁵⁴ held that Congress lacks the authority under section 5 of the Fourteenth Amendment to abrogate states' Eleventh Amendment immunity from suit in federal court for alleged violations of federal patent statutes. Writing for the majority, Chief Justice Rehnquist first concluded that Congress lacked the authority to abrogate the states' Eleventh Amendment immunity for alleged violations of federal patent law under either the Commerce Clause⁵⁵ or its Article I patent authority.⁵⁶ Thus, the critical question was whether abrogation of the states' immunity for patent violations is an appropriate exercise of Congress' enforcement powers under section 5 of the Fourteenth Amendment.⁵⁷

Again emphasizing that, under City of Boerne,⁵⁸ the proper inquiry is whether Congress was acting to remedy or prevent Fourteenth Amendment (constitutional) violations, the Court found no basis either in fact or law for abrogating states' immunity in the context of federal patent law violations. First, as a factual matter, the Court concluded that, when Congress enacted the legislation purporting to abrogate states' Eleventh Amendment immunity, it had virtually no evidence of instances of states infringing patents, and certainly no evidence of a pattern of such infringement.⁵⁹ Second, although recognizing that patents may well be considered "property" for Fourteenth Amendment purposes, the Court determined that virtually nothing in the legislative record demonstrated that Congress sought to redress Fourteenth Amendment violations in the patent context.⁶⁰

Moreover, and in any event, the Court concluded that a state's infringement of a patent would violate the Fourteenth Amendment only when the state's action was more than negligent, i.e., intentional or perhaps reckless, and the state itself provided no adequate state-law remedies to injured patent owners.⁶¹ Finally, the Court concluded that, even were some abrogation of the states' immunity appropriate in this context, the statutory provision before the Court was too broad to withstand constitutional scrutiny.⁶² Congress did not limit the law's coverage to cases involving arguable constitutional violations by the states or restrict abrogation to certain types of infringement, such as intentional violations by states.⁶³

October 1999 Term

The Court already has three more potentially significant federalism cases on its docket for the October 1999 Term. Perhaps the most important case for environmental law is Vermont Agency of Natural Resources v. United States.⁶⁴ In this case, a private citizen brought a federal qui tam suit⁶⁵ against a state agency under the federal False Claims Act (FCA)⁶⁶ in federal court. The state agency defendant moved to dismiss the suit on the grounds that (1) the suit is barred by the Eleventh Amendment and (2) a state entity is not a "person" within the meaning of the FCA. The lower courts denied the state agency's motion. The Second Circuit concluded [29 ELR 10669] that, because the plaintiff in a qui tam suit in theory steps into the shoes of the United States and sues on its behalf, the Eleventh Amendment is not a bar to the suit.⁶⁷ The United States can sue states in federal court without triggering the Eleventh Amendment's protections.⁶⁸ The court also concluded that a state entity is a "person" for purposes of the FCA.⁶⁹

Both rulings are now before the Court, which granted review of the case in late June, just after it announced its decisions in Alden and the two Florida cases. The Court's decision in this case could implicate citizen suits against states to enforce federal environmental statutes. Oral argument in the case is likely to occur no earlier than December 1999.

The other two federalism cases on the Court's docket appear to have less direct relevance to the administration and enforcement of federal environmental laws. Reno v. Condon⁷⁰ involves a challenge to the federal Driver's Privacy Protection Act, which regulates the dissemination and use of information contained in state motor vehicle records. The Fourth Circuit held that the law exceeds Congress' authority under either the Commerce Clause or section 5 of the Fourteenth Amendment and violates the Tenth Amendment.⁷¹ This case thus falls within the New York v. United States⁷² and Printz v. United States⁷³ line of decisions, although it implicates Lopez and City of Boerne as well, and thus could potentially bear on Congress' authority to enact environmental laws.

In the third case, Kimel v. Florida Board of Regents,⁷⁴ the primary question is whether Congress properly exercised its Fourteenth Amendment, section 5 power when it made the Age Discrimination in Employment Act⁷⁵ applicable to the states. Thus, this case is a continuation of the City of Boerne/Florida Prepaid line of decisions addressing Congress' power under the Fourteenth Amendment to abrogate the states' Eleventh Amendment immunity.

Analysis and Significance of Recent Federalism Decisions

Although reaction to the Court's recent federalism decisions has been mixed, several prominent scholars have denounced the decisions and predicted potentially dire consequences.⁷⁶ These predictions, however, may be overstated and tend to ignore the many other facets of federal law that effectively permit redress against the states, or ensure state compliance with federal law.⁷⁷ Indeed, the Court itself in Alden was careful to discuss at some length the various enforcement mechanisms that exist even if the states cannot be sued directly in state or federal court for money damages.⁷⁸ This section considers the alternatives to suits against the states and discusses the propriety and effectiveness of those alternatives.

What Enforcement Mechanisms Remain?

The Court's opinion in Alden makes relatively clear that several Eleventh Amendment and federal supremacy doctrines are not implicated, altered, or eliminated by the Court's decision. Part III of the Court's opinion expressly lists and discusses enforcement options that remain valid, while other doctrines are acknowledged and not questioned in other parts of the opinion. In particular, Justice Kennedy's opinion identifies at least six alternatives that, in the Court's view, will tend to ensure that states comply with federal statutes:

(1) "the good faith of the states"⁷⁹

(2) "voluntary" state consent to suits for violations of federal law, including apparently "consent" obtained by Congress' exercise of its spending powers⁸⁰

(3) Congress' power to abrogate states' sovereign immunity pursuant to its Fourteenth Amendment, section 5 powers to enforce the due process and equal protection guarantees of that amendment⁸¹

(4) suits against municipal governments, entities that do not enjoy any constitutional protected sovereign immunity⁸²

(5) Ex parte Young⁸³ type suits for injunctive relief directed against individual state officials⁸⁴; and

(6) suits by the United States against states to enforce compliance with federal law.⁸⁵

Each of these alternatives has a potential role to play in minimizing the degree to which the states flout obligations imposed on them under the federal environmental laws. Good-faith compliance by the states is without doubt the existing norm, although the states may have important inducements, including a desire to avoid the costs of compliance, a desire to protect core areas of state sovereignty from federal intrusion, and a desire to avoid taking actions likely to be politically unpopular, to engage in noncompliance in particular instances. There is little reason to anticipate that states will voluntarily subject themselves to suit for alleged non-compliance [29 ELR 10670] with the federal environmental statutes, but those statutes include a variety of funding provisions to which Congress has attached conditions.

In light of the restrictions on Congress' authority to abrogate state sovereign immunity from suit in both federal and state courts stemming from Seminole Tribe⁸⁶ and the Court's 1999 federalism decisions, it is likely that Congress will increasingly resort to exercises of its spending power as a means of inducing "voluntary" state consent to waivers of sovereign immunity. Exercise of Congress' authority under section 5 of the Fourteenth Amendment would certainly provide an avenue for abrogating the states' sovereign immunity in environmental justice cases involving alleged racial discrimination, and might provide a means of effecting a broader negation of immunity in cases involving attempts to protect property rights. The federal environmental statutes authorize citizen suits against local governments as a matter of course, and such suits are initiated routinely, often with great success. Likewise, suits against individual state officials alleged to have committed violations of federal environmental statutes hold considerable promise as a means of ensuring state compliance, although such suits have not been as common as suits against local entities. Finally, the states will continue to be subject to enforcement actions prosecuted by the U.S. Department of Justice (DOJ), although the willingness of federal enforcement personnel to engage in rigorous oversight of state compliance is not a given.

Good Faith of the States

Presumably, most states do not seek opportunities to violate federal law just for the sake of demonstrating their sovereignty, nor for other reasons. Thus, the Court may be correct that, in many instances, the states will faithfully comply with federal law, just as millions of Americans comply with numerous laws simply because they are laws. Obviously, however, as many reported decisions demonstrate, states in fact do not always conform their decisions to federal law, either in the environmental arena or elsewhere. Thus, litigants have alleged that state agencies have violated pollution control laws,⁸⁷ environmental assessment laws,⁸⁸ and endangered species protection laws,⁸⁹ among others. Not all of these suits found that violations had occurred, of course. Successful invocation of state sovereign immunity in such suits, however, precludes the courts from ever reaching the merits.

There are at least three reasons why noncompliance may occur (aside from the inevitable inadvertent violations). First, states may have strong incentives to resist compliance with federal statutory or regulatory requirements that would impose onerous financial obligations on the states. An example of this kind of requirement might be the obligation to comply with pollution control standards at state-owned or operated facilities.⁹⁰ Private entities sometimes make conscious decisions to violate applicable regulatory requirements, perhaps because they deem the benefits of avoiding compliance to be worth taking in light of the chances that their violations will not be detected or, even if detected, effectively pursued by enforcement authorities. There is little reason to believe that state entities subject to federal environmental requirements are incapable of engaging in the same kind of calculus. The degree to which federal agencies have violated the federal pollution control laws belies the notion that governmental entities necessarily have a stronger commitment to compliance with the law than do private entities.⁹¹ Indeed, one would anticipate that state agencies with limited budgets would seek out cost-saving measures, including noncompliance with applicable legal requirements, to enable them to pursue other favored program initiatives. The unwillingness of state and local politicians to bear the costs necessary to comply with federal environmental requirements was a major precipitating force behind adoption of the Unfunded Mandates Reform Act of 1994.⁹²

Second, states also may decide to violate federally imposed statutory obligations that would intrude on areas traditionally considered to be a matter of state prerogative. The obligation to conform state transportation projects to federal Clean Air Act (CAA) requirements might be an illustration of the second kind of requirement.⁹³ Third, states may resist complying with federal environmental mandates on the basis of public opposition to the results that compliance would yield. States presumably balked at, and ultimately sued to invalidate,⁹⁴ the provisions of the Low-Level Radioactive [29 ELR 10671] Waste Policy Amendments Act of 1985⁹⁵ because they feared a backlash against those officials responsible for locating a radioactive waste disposal site within a state's borders.⁹⁶ Thus, although voluntary state compliance can be expected in most instances, good faith alone seems an obviously incomplete defense against state noncompliance with federal law, especially when compliance may be costly and inconvenient.

"Voluntary" State Consent to Suit

The Court has long held that states may waive their Eleventh Amendment immunity and consent to suit, in either federal or state court.⁹⁷ Such a waiver, however, must be express and voluntary.⁹⁸ Indeed, the Court in College Savings Bank (the trademark case) put to rest once and for all any notion that a waiver of state sovereign immunity could be implied or inferred from state participation in an activity regulated by federal law.⁹⁹

Although possible, it seems very unlikely that states will voluntarily and without any sort of quid pro quo waive their sovereign immunity with respect to suits based on alleged violations of federal statutes. Instead, the far more likely scenario, and one which the Court in Alden acknowledged, is that Congress will require such waivers of sovereign immunity as a condition of receiving federal monies for various programs in which the states participate.¹⁰⁰ As the Court put it, "the Federal Government [does not] lack the authority or means to seek the States' voluntary consent to private suits."¹⁰¹

All of this leads to South Dakota v. Dole,¹⁰² and questions about the scope of Congress' so-called spending power. In Dole, the Supreme Court rejected South Dakota's constitutional challenge to a federal condition that states raise the minimum drinking age to 21 in order to receive certain federal highway funds. In so doing, the Court recognized that Congress has the constitutional authority to attach conditions to the receipt of federal monies, and the Court adopted an extremely deferential approachto determining whether such conditions unconstitutionally coerce states into complying with them, thus vitiating the voluntary nature of the compliance.

Effectively, Dole places no meaningful constraints on Congress' ability to use its spending power to obtain state compliance with federal requirements with respect to particular grant programs.¹⁰³ The current spending power test under Dole involves four requirements, none of which are rigorous or meaningful as the Court applied them in that case. The imposition of a condition on the receipt of federal funds is valid if: (1) the condition serves the general welfare; (2) states have received fair notice of the condition; (3) the condition is related to federal interests; and (4) the condition does not violate any constitutional requirements.¹⁰⁴ The first requirement is in the nature of a rational basis test, and the second can be easily satisfied by clear notice. The third condition has potential as a meaningful constraint. Dole recognizes that the federal objective must bear some relationship to the federal money being expended, making it unlikely that the Court would approve any sort of requirement by Congress that states waive their sovereign immunity generally. Instead, the waivers will have to be sought and obtained program by program, making the spending power somewhat cumbersome as a means of permitting suits against the states. The relationship requirement was not applied rigorously in Dole itself, however, as the Court up-held a condition requiring states to raise the minimum drinking age to 21. The fourth requirement borders on the silly, essentially stating the obvious proposition that Congress cannot compel the states to violate the Constitution, for example, by imposing a requirement that none of the funds received be disbursed to members of a particular race or religion.

Another interesting question is whether Congress could obtain a waiver of immunity without actually expending federal funds. For example, could Congress pass a law that would prohibit states from availing themselves of the protections provided by federal trademark laws unless the states waived immunity from suits alleging that the states themselves had violated such laws? This question is not unlike the spending power issues raised in Dole but, strictly speaking, would not implicate the spending power and would instead appear to be a Tenth or Eleventh Amendment problem.

In all probability, the Court will have to return to Dole and the spending power if it is serious about limiting suits [29 ELR 10672] against unconsenting states for violations of federal law. Now that states cannot be dragged involuntarily into federal and state courts in suits alleging noncompliance with federal law, it seems certain that Congress will consider using its spending power to obtain the states' "consent" to such suits. Thus, as the Court has narrowed Congress' commerce power, and expanded the scope of the Tenth and Eleventh Amendments, Congress may have to rely increasingly on its spending power and its Fourteenth Amendment, section 5 power¹⁰⁵ to implement federal objectives.

If the Court is willing to revisit Dole, the so-called spending power raises many interesting and difficult questions. At least one state has filed suit against the United States recently, challenging the constitutional propriety of various federal requirements imposed as conditions of receiving federal funds.¹⁰⁶ With respect to the spending power, there are two arguments for limiting the sweep of Congress' spending power that may merit serious examination in light of the Court's recent federalism decisions. First, Article I may not give Congress the power to condition the receipt of federal money by the states on compliance with federal conditions. Article I, section 8 states that Congress has the power to tax, to pay debts and to provide for the common defense and general welfare. One reading of Article I is that Congress is limited to spending money to support and implement federal programs adopted pursuant to a specific Article I enumerated power. So interpreted, Article I would not permit Congress to remove revenue from the states through taxation and refuse to return it unless the states spend it in ways that Congress dictates.

This restrictive interpretation of the scope of the spending power was endorsed by James Madison but not by Alexander Hamilton. Madison took the view that Congress could tax and spend only to implement programs undertaken pursuant to its enumerated Article I powers.¹⁰⁷ Alexander Hamilton, however, took a broader view of the spending power, arguing that it is not limited by Congress' enumerated powers.¹⁰⁸ Importantly, Justice Story later endorsed Hamilton's view.¹⁰⁹ The issue arose infrequently before the New Deal, however, because Congress did not make significant use of spending conditions in the 19th century. The rise of the modern spending power did not occur until after three important 20th century events: (1) ratification of the 16th Amendment in 1913, which permitted Congress to tax income directly and thus raise significantly more federal revenue that could then be spent; (2) ratification of the 17th Amendment in 1913, which requires the direct election of Senators and reduced Congress' responsiveness to and concern for the interests of the states as sovereign entities; and (3) the New Deal and its shift toward addressing social ills through the federal government on a national basis rather than on a state-by-state basis. The two Court cases that, prior to Dole, were the most significant in the evolution of the modern spending power both were decided at a critical time during the New Deal period.¹¹⁰ In both cases, the Court endorsed Hamilton's broad view.¹¹¹

In the wake of the Court's recent federalism decisions, it is not implausible that the Justices may revisit the question and reconsider Madison's view. The Fourth Circuit, however, in a recent case involving title IX of the Education Amendments of 1972, rejected a challenge based on Madison's approach.¹¹² A student at George Mason University, a state-created institution, sued the university, alleging sex discrimination in violation of title IX. The defendant claimed that Congress lacked the constitutional authority to abrogate the state's Eleventh Amendment immunity as a condition of the university's voluntary acceptance of federal education funding. The court interpreted Dole as concluding that the range of permissible conditions attached to the receipt by a state of federal funds extends beyond the scope of Congress' enumerated powers. Accordingly, "conditioning federal funds on an unambiguous waiver of a state's Eleventh Amendment immunity is as permissible as a state's direct waiver of such immunity."¹¹³ Because Congress properly conditioned George Mason University's receipt of title IX funds on waiver of the state's Eleventh Amendment immunity, the university's acceptance of those funds amounted to its consent to be sued in federal court.¹¹⁴ At the conclusion of its opinion, the Fourth Circuit speculated that if the Court were ever to adopt "a Madisonian construction of the Spending Clause, perhaps Congress would be inhibited from implementing a spending program that both intruded upon a state's general police powers and conditioned the outlay of funding on a state's waiving its sovereign immunity."¹¹⁵ Current Court precedent, however, precluded recognition of such restrictions.

The second argument for a more restrictive spending power is that, even if Article I gives Congress some authority to impose federal conditions on the states' receipt of federal money, that power perhaps should be more limited than [29 ELR 10673] what Dole suggests is permissible. In essence, the argument, which is based on the doctrine of unconstitutional conditions briefly described below, is that the Tenth Amendment and the Constitution's structure suggest that the states have a protectable constitutional interest in their sovereignty¹¹⁶ that Congress cannot validly infringe through direct regulation of the states as states, including through the imposition of federal conditions on the receipt of federal money. The essential thesis is that the Constitution creates a structure in which both the states and the federal government are essentially immune from direct regulation by each other, not unlike the intergovernmental immunity recognized as far back as McCulloch v. Maryland.¹¹⁷

This second argument relies on the doctrine of unconstitutional conditions,¹¹⁸ which the Court has recognized in the context of individual rights, primarily in areas involving criminal procedure, free speech, and property rights. The doctrine is viewed primarily as a means of protecting individual rights, not state sovereignty.¹¹⁹ And, certainly, the doctrine has been a non-issue with respect to federal conditions required of the states since Dole.

In light of the concept of unconstitutional conditions, however, the Court could reconsider Dole and impose meaningful restrictions on Congress' use of the carrot-and-stick approach to its spending power. The alternative to Dole would be to craft a judicially enforceable limit on Congress' spending power. One option would be to develop a notion of core state sovereignty interests protected by the Tenth Amendment. Another would be to preclude Congress from using the spending power to require the states to do what Congress lacks the constitutional authority or political willpower to do directly. In other words, if Congress could not or would not pass a national law pursuant to its commerce powers (or other Article I powers) that regulated state conduct, it should be precluded from conditioning the receipt of federal money on the states' agreement to abide by the same restrictions on that conduct.

One consequence of revisiting Dole might be that Congress would be required to regulate directly, by enacting preemptive federal law, rather than holding a stick over the states and coercing them to act. A corollary consequence would be a somewhat more active role for the judiciary in policing the scope of congressional power.¹²⁰ In the end, Congress could almost certainly still implement most important federal programs (under its commerce power, for example), but it would have to do so more directly, and consider more carefully the political costs of such national regulation.

Absent adoption of the restrictive Madisonian view of the scope of the spending power or reformulation of the Dole test for the imposition of conditions on receipt of federal funds, Congress ought to be able to extract state consent to a waiver of sovereign immunity as the price for compliance with a wide range of environmental requirements. The CAA already bars the Secretary of Transportation from awarding any highway construction and related grants (other than those designed to enhance safety and significantly reduce accidents and those that promise to reduce air pollution, such as capital programs for public transit) for projects to be located in air quality control regions that are not in compliance with the national ambient air quality standards for one or more of the criteria pollutants.¹²¹ There appears to be no reason why Congress could not further condition receipt of highway funds on consent by the recipient states to suit by private citizens in federal or state court for alleged noncompliance by the states with CAA requirements applicable to state-owned or operated sources. These might even include indirect sources (those that generate pollution by attracting cars and other mobile sources) currently beyond the realm of the U.S. Environmental Protection Agency's (EPA's) direct control. In light of the obvious link between highway use and air pollution, the federal government should have little difficulty demonstrating a reasonable link between such conditions and the promotion of relevant federal purposes.¹²²

Another provision of the CAA authorizes EPA to withhold federal highway funds if a state fails to submit an acceptable permit program to control emissions by stationary sources of air pollution.¹²³ Among the elements of an acceptable program is the availability of an opportunity for judicial review of state permitting decisions in state court by permit applicants and "any other person who could obtain judicial review of that action under applicable law."¹²⁴ Essentially, the statute requires that the states open their courthouse doors to anyone who qualifies for standing to sue in federal court.

In Virginia v. Browner,¹²⁵ the state attacked the constitutionality of these provisions, claiming that they improperly commandeer the legislative process of the states in violation of the Tenth Amendment and the Spending Clause. The Fourth Circuit concluded that Congress had not exceeded its [29 ELR 10674] authority because, although the highway sanctions were potentially burdensome to the state, they amounted to inducement instead of outright coercion. The spending power provided ample support for the highway sanctions. "Because the elimination of air pollution promotes the general welfare, Congress may tie the award of federal funds to the states' efforts to eliminate air pollution."¹²⁶ In addition, the spending conditions were reasonably related to the goal of reducing air pollution. According to the court, "Congress may ensure that funds it allocates are not used to exacerbate the overall problem of air pollution."¹²⁷ Finally, the court concluded that "as a valid exercise of [the spending power, the highway sanction provision] also comports with the requirements of the Tenth Amendment."¹²⁸ A requirement that a state accepting federal highway construction funds also consent to federal court jurisdiction in any suit challenging its compliance with CAA requirements in connection with the expenditure of those funds also would be designed to ensure that federal funds are not used to exacerbate air pollution problems. Accordingly, such a requirement should easily satisfy the Dole test.

Similar opportunities to extract state consent to be sued as a condition of the receipt of federal funds may arise under other federal environmental legislation. For years, Congress subsidized the construction of sewage treatment plants by state, local, and interstate agencies.¹²⁹ The availability of these funds was subject to a series of conditions, such as: demonstration that the recipient would apply certain kinds of pollution control technology¹³⁰; that sewer collection systems discharging into the treatment works were not subject to excessive infiltration¹³¹; that the grant recipient had analyzed potential recreation and open space opportunities in planning the proposed treatment works¹³²; that indirect discharges into the treatment works not exceed a certain level¹³³; that the treatment works constructed with federal funds ensure sufficient reserve capacity¹³⁴; and that the fund recipient adopted a system of user charges designed to assure that all recipients of waste treatment services paid their proportionate share of operation and maintenance costs.¹³⁵ Further, grants were not available unless the applicant could show the availability of legal, institutional, and financial capacity to insure adequate operation and maintenance of the treatment works.¹³⁶ Congress has narrowed the scope of the construction grant program considerably in recent years. Should Congress decide that it wants to overcome the limitations resulting from Seminole Tribe, Alden, and other Court decisions on citizen suits against state entities operating sewage treatment plants or other sources with the potential to pollute water, it could conceivably decide to make such grants available again, but to add as a condition state consent to be sued for alleged violations at facilities constructed or operated with federal funds. The spending power, as currently interpreted, ought to provide ample authority for such conditions.¹³⁷

Congress' Fourteenth Amendment, Section 5 Power

Even the Court's recent decisions recognize that Congress has the constitutional authority, pursuant to the grant of enforcement powers in section 5 of the Fourteenth Amendment, to abrogate the states' Eleventh Amendment immunity in some circumstances. What the Court's most recent decisions make clear, however, is that such authority is neither sweeping nor open-ended, and the Court apparently intends to scrutinize carefully any asserted exercises of that power. Indeed, the two recent Florida cases emphasize, in the context of alleged patent and trademark law violations, that Congress must satisfy two meaningful requirements in order to legislate pursuant to its section 5 power: (1) Congress must be legislating to remedy an actual constitutional wrong that has occurred with some frequency; and (2) the remedy Congress chooses to provide must be proportional to the wrong committed. The Court quite clearly rejected arguments that the patent and trademark provisions permitting suits against states could be justified on the grounds that they served to provide "due process" generally with respect to potential deprivations of protected property interests.

Most of the federal environmental laws have been adopted pursuant to Congress' authority under the Commerce Clause.¹³⁸ In limited situations, however, Congress could turn to section 5 of the Fourteenth Amendment as a source of power to enhance environmental protection. Most obviously, Congress could rely on section 5 to adopt laws designed to prevent the discriminatory application of environmental protection laws by the states. Similarly, individuals could invoke antidiscrimination laws already on the books that find their source in Congress' section 5 authority [29 ELR 10675] to combat environmental racism.¹³⁹ Environmental racism involves "the disproportionate placement of toxic hazards [or other environmental risks] in minority areas, the exclusion of people of color from environmental planning, and the destruction of many traditional communities."¹⁴⁰ One potential basis for an environmental justice claim is title VI of the Civil Rights Act of 1964, which forbids those receiving federal funds, including state environmental agencies, from discriminating on the basis of race.¹⁴¹ In February 1998, EPA established a policy to facilitate the processing of complaints under title VI alleging that pollution control permits issued by federally funded state agencies have a disparate impact on minority populations. A suit based on the charge that a state agency sited a hazardous or radioactive waste disposal facility in a minority neighborhood because of a desire¹⁴² to avoid antagonizing more socially and politically powerful segments of society, thereby violating the equal protection rights of the adversely affected neighbors, should be permitted to proceed, assuming Congress has exercised its section 5 power by abrogating state sovereign immunity to suit in such a situation. Similar claims that state agencies have engaged in environmental racism have been raised both in court¹⁴³ and before EPA's Environmental Appeals Board.¹⁴⁴

It is conceivable that Congress' section 5 power could serve as a basis for legislation authorizing private suits against the states, despite the Eleventh Amendment, in a broader range of situations. One observer has considered the argument that environmental protection statutes are supported by the Equal Protection Clause because "all citizens should enjoy the protection gained from environmental laws and … if a state violates an environmental law, and thereby causes citizens to be deprived of the benefits afforded by that law, such violation denies Equal Protection to those citizens."¹⁴⁵ One difficulty in supporting such an argument is demonstrating the fundamental premise that citizens have an extra-statutory right to environmental protection. As Prof. William Rodgers Jr. has indicated, the most accurate answer to whether there is a federal or state constitutional right to a clean environment is probably "not then, not now, not ever."¹⁴⁶ Suits challenging state action could be premised instead on the theory that benefits created by statute were distributed in a discriminatory manner or that the environmental burdens resulting from statutorily authorized state action were so distributed. Such claims, however, fall under the rubric of the narrower environmental justice paradigm discussed above. At any rate, a federal district court regarded as "specious" the notion that citizen suits under the federal environmental statutes derive support from Congress' Fourteenth Amendment authority merely because they are generally designed to "vindicate property interests."¹⁴⁷

A stronger argument is available that section 5 of the Fourteenth Amendment would legitimately support a statute designed to prevent state conduct from generating externalities that harm neighboring property interests. Such a statute would essentially be a nuisance control measure and would be designed to bar state conduct (or require the payment ofdamages resulting from state conduct) that results in a deprivation of property or a taking without just compensation. The Court's decisions in the 1999 patent and trademark cases weaken that argument to the extent that they require proof of a constitutional wrong that has occurred with some frequency and preclude suits against states that are designed to provide due process generally with respect to potential deprivations of property interests. The Court acknowledged in one of those cases, however, that "where the State provides no remedy, or only inadequate remedies, to injured patent owners for its infringement of their patent a deprivation of property without due process [could] result."¹⁴⁸ Similarly, if a state precluded suits under state law for state action that results in nuisance-like intrusions on neighboring property, the result may be a deprivation that provides the basis for protective federal legislation based on the Fourteenth [29 ELR 10676] Amendment.¹⁴⁹ For the most part, the current federal environmental statutes provide no private rights of action for damages against either government or private defendants.

Although the Court's 1999 federalism cases do not carve out a large role for the exercise of Congress' Fourteenth Amendment authority as a means of authorizing private suits against the states, they do have some potential bearing on the extent to which regulated entities will be able to assert successful takings claims on the basis of the government's application of environmental regulations. Justice Scalia's opinion in the 1999 trademark case in particular contains two intriguing statements. First, the petitioning bank in that case asserted that the right to be free from a competitor's false advertising amounts to a property right whose deprivation Congress sought to remedy and prevent when it enacted the Trademark Remedy Clarification Act. In rejecting that argument, Justice Scalia focused on the right to exclude others, which he characterized as "the hallmark of a protected property interest."¹⁵⁰ The absence of that right, he continued, "is why the right that we all possess to use the public lands is not the 'property' right of anyone."¹⁵¹ One can imagine government litigants seizing on that statement to support the claim that actions by the federal land management agencies to protect the federal public lands and resources cannot possibly amount to Fifth Amendment takings because the timber companies, miners, or cattle grazers seeking compensation lacked a property interest to be taken.¹⁵² Second, the bank argued that the trademark statute sought to protect a more generalized right to be secure in one's business interests. Finding that contention to be flawed as well, Justice Scalia asserted that "business in the sense of the activity of doing business, or the activity of making a profit is not property in the ordinary sense."¹⁵³ Taken at face value, the Court's dismissal of the bank's argument bodes ill for industries claiming that federal or state environmental regulations "go too far,"¹⁵⁴ and therefore amount to a taking, simply because they make it impossible for the regulated entity to operate profitably. An irony of the 1999 federalism cases, therefore, is that Justice Scalia, who is the Court's staunchest advocate of expanded taking liability for applications of environmental regulation, has provided two new weapons in the arsenal of government regulators seeking to defeat takings claims against them.

Suits Against Municipalities

The Court in Alden made clear that the constitutionally based sovereign immunity the Court recognized in suits against states in state court does not extend to municipal government entities, such as counties and cities. That proposition is consistent with the Court's Eleventh Amendment jurisprudence, which holds that municipalities generally have no such immunity.¹⁵⁵ For purposes of enforcing the federal environmental laws, that distinction may be extremely important, since significantly more suits to enforce such laws are brought against municipal governments than the states.

Except for the Federal Insecticide, Fungicide, and Rodenticide Act,¹⁵⁶ all of the major federal pollution control statutes authorize citizen suits for alleged violations of the statutes or their implementing regulations or permits.¹⁵⁷ Likewise, the Endangered Species Act (ESA) authorizes citizen suits.¹⁵⁸ Almost without exception, these statutes permit suits against "any person," and then explicitly define a "person" to include municipalities or political subdivisions of states.¹⁵⁹ Similarly, both the Oil Pollution Act of 1990 and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) impose liability on responsible parties for contamination and define responsible parties to include local governments.¹⁶⁰ Suits against localities under these provisions have been legion.¹⁶¹ Nothing in the three 1999 federalism cases restricts either the liability of local government entities under these laws or the ability of private citizens to sue those entities in federal or state court for statutory violations.¹⁶² There is a strong [29 ELR 10677] presumption that jurisdiction over claims raising federal statutory issues is concurrent in federal and state courts.¹⁶³ Accordingly, unless a particular statute restricts the pursuit of federal statutory violations to a federal forum, as CER-CLA does,¹⁶⁴ private citizens ought to be able to pursue these claims in any state court that has subject matter jurisdiction as well.¹⁶⁵ Suits against local governments for violations of pollution control requirements adopted by a state pursuant to authority delegated to it by EPA in particular may proceed in state court.¹⁶⁶

Suits Against Individual State Officials

Another option that remains available is a suit against state officials, either in their individual capacities for money damages,¹⁶⁷ or even in their official capacities if only injunctive relief is sought.¹⁶⁸ Even though most jurisdictions indemnify their officials for any liability arising from official acts, the Court has never suggested that such suits are barred by the Eleventh Amendment or any other notion of state sovereignty on the ground that the money which pays any judgment ultimately comes from the state treasury.¹⁶⁹ If the Court continues to permit such suits, then this alternative will remain a legitimate and useful one in seeking to enforce compliance with federal law.

Injunctive relief against individual state officials sued in their official capacity, also commonly referred to as Ex parte Young relief for the case that gave rise to the doctrine, seems safe and unchallenged by the Court's recent decisions. As a general matter, this aspect of individual liability suits has not been drawn into serious question by recent developments. There are, however, two recent Supreme Court decisions that have limited the availability of Ex parte Young relief in two arguably unique contexts. The first decision to limit Ex parte Young was Seminole Tribe,¹⁷⁰ in which the Court held that such relief is not available in a suit against the governor of a state when Congress has created a comprehensive, statutory remedial scheme for resolving disputes, such as over Indian gaming. The second case to limit Ex parte Young was Idaho v. Coeur d'Alene Tribe of Idaho,¹⁷¹ in which the Court rejected such relief in the context of a dispute between a tribe and a state over title to lands within the state's borders. Neither decision purports to alter the proposition that Ex parte Young relief generally remains available against state officials who violate federal law.

Ex parte Young suits, of course, are forward-looking and provide redress in the form of preventing future violations of federal rights; they do not redress past violations, for which damages typically would be the appropriate legal remedy. In some cases, injunctive relief is neither appropriate nor desired by the plaintiff and, thus, the availability of personal capacity suits against individual officials for money damages remains very important. Precluding suits for money damages against the states themselves often makes it considerably more difficult for plaintiffs to recover damages, because of the personal immunities the Court has recognized for government officials.¹⁷² Nonetheless, nothing in the Court's recent decisions precludes continued resort to such suits to enforce federal laws, including the environmental laws.¹⁷³

Efforts to limit the availability of relief against state officials in Ex parte Young suits involving alleged violations of the federal environmental statutes have failed thus far. In Strahan v. Coxe,¹⁷⁴ for example, a case decided after both Seminole Tribe and Coeur d'Alene Tribe, the plaintiff brought a citizen suit against various Massachusetts wildlife and environmental protection officials alleging violations of the ESA.¹⁷⁵ The plaintiff sought an injunction requiring the state to revoke licenses it issued authorizing gillnet and lobsterpot fishing and barring the state from issuing such licenses in the future absent an incidental take permit under the ESA from the National Marine Fisheries Service. The defendant officials responded that the Eleventh Amendment [29 ELR 10678] precluded the district court from providing any of the relief sought; according to the defendants, the court could do no more than order a cessation of the violation, but could not mandate affirmative relief. The First Circuit disagreed, concluding that the defendants had interpreted the limitations on Ex parte Young-type relief too broadly. Although a federal court lacks jurisdiction to hear a case in which the plaintiffs seek retrospective relief against state officials, it does not limit the scope of equitable relief that may be granted once appropriate jurisdiction is found.¹⁷⁶

A year before the decision in Strahan, the Ninth Circuit issued a decision indicating that, in all likelihood, Seminole Tribe will not result in any new limitations on Ex parte Young suits involving alleged violations of the federal environmental statutes. Environmental groups sued the California Department of Transportation (Caltrans) and its director, claiming that Caltrans was violating a Clean Water Act (CWA) permit requiring that it control polluted stormwater runoff from roadways and maintenance yards in southern California.¹⁷⁷ The district court dismissed all claims against Caltrans based on the state's Eleventh Amendment immunity. It dismissed the plaintiffs' claims against the director for civil penalties and declaratory relief on the same ground. It permitted the suit for prospective injunctive relief against the director individually to proceed, however, and, after finding a statutory violation, entered a permanent injunction requiring specific actions to comply with the permit in the future. The director appealed, challenging the propriety of the injunction against him under the Eleventh Amendment.

The Ninth Circuit held that Ex parte Young authorized the claims for prospective injunctive relief against the director.¹⁷⁸ It then considered whether Seminole Tribe, which had held that a claim against a state governor could not be brought as an Ex parte Young suit because Congress had prescribed a detailed remedial scheme for the enforcement against a state of a statutory right, had altered the Ex parte Young exception to Eleventh Amendment immunity in the circumstances of this case. Seminole Tribe indicated that Congress may choose to limit the availability of Ex parte Young suits against state officers for federal statutory violations, and held that Congress had done exactly that when it enacted the Indian Gaming Regulatory Act.¹⁷⁹ The Court in Seminole Tribe also indicated, however, that, despite its holding that Congress lacks the authority under the Indian commerce clause (and thus under the Commerce Clause) to abrogate state sovereign immunity under the Eleventh Amendment, Congress may authorize federal jurisdiction over a cause of action against state officials under Ex parte Young if the statute allegedly violated contains "a limited remedial scheme."¹⁸⁰ The Court then cited the CWA's citizen suit provision as an example of a statute in which Congress implicitly authorized Ex parte Young suits.¹⁸¹ Accordingly, the Ninth Circuit held in Caltrans that Ex parte Young suits against state officials with the responsibility to comply with CWA standards and permits are permissible, and that the district court did not err in awarding prospective injunctive relief against the director.¹⁸²

There is every reason to believe that the result will be the same in suits for prospective injunctive relief under each of the other federal environmental statutes that contain citizen suit provisions. All of them, like the CWA citizen suit provision, are "intended to encourage and assist the public in enforcing the standards promulgated to" protect the environment, and all were enacted so that private citizens may initiate enforcement actions "against an individual or a government agency."¹⁸³ Suits for monetary relief, however, such as a suit for reimbursement of response costs under CERCLA, are more problematic.¹⁸⁴

Suits Brought by the United States

One of the most interesting aspects of the Court's recent federalism decisions, as well as the qui tam case currently on the Court's docket, is the role that the United States may now be compelled to play in order to ensure enforcement of federal requirements such as the environmental laws. The Court in Alden emphasized that nothing in the Constitution's text, structure, or history precludes the United States from suing unconsenting states directly in order to compel compliance with federal law. The irony of that proposition, however, which has not been lost on commentators, is that the conservatives on the Court are creating incentives to expand the federal bureaucracy. Will the end result of the Court's federalism decisions be that the DOJ creates a massive Office for Suits Against Recalcitrant States that will pursue suits against the states in federal court, whether seeking [29 ELR 10679] injunctive relief or money damages for violations of federal law?

A decision in the state's favor in Vermont Agency of Natural Resources,¹⁸⁵ precluding qui tam suits by individuals against the states, will further strengthen the incentives to increase the size of the federal Executive Branch. Perhaps a majority of the Court believes that the President lacks the will or the interest to expand the bureaucracy, or perhaps a majority of the Court believes that Congress would not fund such an expansion. The Court may be correct on both points, but nothing in the Constitution would preclude the President and Congress from creating a whole new division within the DOJ charged with pursuing litigation against the states. Moreover, as a matter of constitutional structure, it is not obvious that the most desirable result is for all suits against states for alleged violations of federal law to be decided in the federal courts, which are the only forums in which the United States would bring suits against the states.¹⁸⁶ Instead, by effectively ensuring that no suits against states involving federal law would ever be decided in the state court systems, the state courts would be precluded from acting as potential checks on the exercise of federal power. All matters of federal law involving the states as defendants would be decided in federal court.

In theory, there is nothing to prevent the United States from initiating enforcement actions against states alleged to be in violation of the federal environmental statutes. Such suits have been relatively rare in the past for reasons that are not entirely clear. One explanation may be that instances of state violations are not commonplace. The litigation in which private parties have sought to enforce these laws against the states indicates, however, that state violations do occur. Perhaps EPA and the DOJ have concluded that their limited enforcement resources are better devoted to more significant violations by private entities, especially in light of the ability of individuals and environmental groups to proceed against state violators by way of citizen suit. The restrictions on citizens suits against the states deriving from Seminole Tribe and Alden will obviously reduce the effectiveness of citizen oversight of state compliance.

Friction between EPA and the states over implementation of the federal environmental statutes is commonplace.¹⁸⁷ Perhaps EPA refrains from rigorous enforcement against the states in order to avoid adding to already existing enmities between the two levels of government which, after all, must sustain an ongoing working relationship in the implementation of the environmental statutes. Perhaps federal enforcement authorities are more willing to settle disputes with state agencies engaged in statutory violations through negotiations than they are to forego the filing of formal enforcement actions against private regulated entities. EPA may trust state officials more than it does private entities to negotiate and carry through on commitments in good faith. Perhaps the states have more to trade off than do private corporations and individuals in negotiations with EPA. The dynamic of most of these practical realities may not change simply because the Court's federalism decisions have eliminated some of the alternative enforcement options previously available.

October 1999 Term: Predictions and Analysis

By far the potentially most important decision on the Court's October 1999 docket with respect to the federal environmental laws is Vermont Agency of Natural Resources,¹⁸⁸ the case that raises the question whether the Eleventh Amendment bars qui tam suits brought by private citizens in the name of the United States. Although they are not necessarily the same as qui tam suits in operation or effect, the citizen suit provisions contained in many federal environmental statutes may be subject to Eleventh Amendment defenses if the Court holds that qui tam suits are barred.

The Court's opinion in Alden may give a hint as to the majority's likely view of qui tam suits in which the United States does not formally intervene. In Part III of the Court's opinion, which discusses the enforcement mechanisms that remain available to ensure that the states comply with federal law, Justice Kennedy declared that: "a suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to 'take Care that the Laws be faithfully executed,' U.S. Const., Art. II, § 3, differs in kind from the suit of an individual."¹⁸⁹ This statement, which echoes the rationale that appears in some of the Supreme Court's recent cases restricting the standing of environmental groups to bring suit to redress alleged violations of the environmental statutes by government and private industry alike,¹⁹⁰ could certainly be read as foreshadowing the outcome in the Vermont qui tam case. The statement may indicate that the Court will rule that qui tam suits brought by private citizens in which the DOJ declines to intervene cannot overcome the Eleventh Amendment. The curious aspect of such a holding, however, is that it would give the federal Executive Branch, presumably through the DOJ, an effective case-by-case ability to abrogate states' Eleventh Amendment immunity in circumstances in which Congress lacks the constitutional authority to enact a general abrogation.

The impact of a holding that the Eleventh Amendment bars qui tam actions against the states could be significant for alleged violations of the federal environmental statutes.¹⁹¹ Qui tam actions are already available to some extent under the FCA in contexts involving environmental concerns.¹⁹² It has been suggested that qui tam actions, which were once available in this country in a variety of contexts,¹⁹³ [29 ELR 10680] be made more widely available again to assist in the enforcement of the federal environmental statutes. In particular, commentators like Prof. Cass Sunstein have raised the possibility of amendments to the citizen suit provisions to authorize the award of cash bounties of the kind available to plaintiffs in qui tam actions in order to circumvent the potential inability of citizen suit plaintiffs to demonstrate redressability under prevailing standing requirements.¹⁹⁴ Justice Scalia, in ruling that an environmental group asserting procedural injury lacked standing to challenge the legitimacy of the U.S. Department of the Interior's interpretation of the ESA, distinguished the situation "in which Congress has created a concrete private interest in the outcome of a suit against a private party for the government's benefit, by providing a cash bounty for the victorious plaintiff."¹⁹⁵ Assuming that a private plaintiff would have Article III standing to bring a qui tam action against a state alleged to be in violation of a federal environmental statute, that kind of supplemental enforcement mechanism would not be available against a state defendant were the Court to rule that the Eleventh Amendment bars qui tam actions against the states.¹⁹⁶ In other words, the very remedy (a cash award) that might give environmental plaintiffs standing to sue under the Court's recent standing decisions may at the same time bestow Eleventh Amendment immunity on states and state officials.

The other case on the Court's docket that might generate long-term implications for the federal environmental laws is Reno, the South Carolina case that challenges the federal Driver's Privacy Protection Act on Tenth Amendment grounds. If the Court strikes down the federal law on Tenth Amendment grounds, and effectively or explicitly expands the concept of constitutionally protected state sovereignty interests, such an outcome could raise questions about the constitutional validity of some environmental statutes, most if not all of which rely on Congress' commerce power. It is not inconceivable that the "federalism five" on the current Court might view at least some federal environmental laws as invalid attempts to regulate on a national basis matters that are essentially within the exclusive province of state and local governments.

One critical factor, however, may be the problem of negative externalities in the environmental context. Absent the compulsion of environmental regulation, state and local governments have incentives to shift the costs of pollution generated within their borders to other jurisdictions, just as unregulated industrial polluters have incentives to foist the adverse effects of their polluting endeavors onto others. The mobile nature of air and water pollution makes such cost-shifting possible. Suits between states in interstate pollution disputes date back at least to the beginning of the 20th century.¹⁹⁷ Ongoing controversies over pollutants that contribute to acid rain and ozone pollution indicate that transboundary pollution continues to be a serious problem.¹⁹⁸

There can be no doubt that disputes of this sort implicate interstate commerce and that Congress' commerce power enables it to take action to prevent transboundary environmental spillovers. Even those who are skeptical of the rationale for uniform federal environmental regulatory standards as a means of preventing competition among the states for industry have supported federal regulation to prevent interstate spillovers.¹⁹⁹ Furthermore, the Eleventh Amendment does not preclude one state from suing another for violations of the federal environmental statutes in federal court. Such suits could even be brought directly before the Court as part of its original jurisdiction over suits between states.²⁰⁰

Nothing in any of the Supreme Court's federalism cases should affect the ability of one state to sue another in federal forums for environmental statutory violations. It is not clear whether the structural component of state sovereign immunity recognized by the Court in Alden will block future efforts by one state to sue another in state court for federal statutory violations.²⁰¹

The commerce power authorizes federal environmental regulation in contexts that extend well beyond interstate spillovers, even after Lopez. Regulated entities have initiated renewed attacks on the constitutionality of a host of environmental statutes based on Lopez, yet not a single statute has been invalidated as beyond Congress' commerce [29 ELR 10681] power.²⁰² The lower federal courts have held that the Lacey Act (which, among other things, bars the transportation and purchase in interstate commerce of wildlife taken in violation of state law),²⁰³ the Bald and Golden Eagle Protection Act,²⁰⁴ and the Eagle Protection Act²⁰⁵ are all adequately supported by the commerce power. The D.C. Circuit held, in a 2-1 decision, that the ESA's application to a fly found only in California did not violate the Commerce Clause.²⁰⁶ The Eleventh Circuit ruled that CERCLA was legitimately applied to hazardous waste contamination located entirely in one state because of the nexus between all forms of improper waste disposal and interstate commerce: chemical contamination increases the cost of handling waste for the chemical industry, causes agricultural losses, and threatens resource-dependent, interstate industries such as commercial fishing.²⁰⁷

The only environmental case in which Lopez has had a restrictive effect has been the Fourth Circuit's 1997 decision in United States v. Wilson,²⁰⁸ in which the court overturned a felony conviction for violating regulations issued to implement the CWA's dredge and fill permit program.²⁰⁹ The court concluded that the regulations upon which the conviction was based were beyond the agency's statutory authority and, in so doing, avoided the constitutional question that would otherwise have been raised by applying the regulations to intrastate, nonnavigable waters. Even that holding was rejected by another court shortly thereafter.²¹⁰ It is conceivable that some courts will seize upon Lopez as indicative of a sufficient narrowing of Congress' authority to regulate interstate commerce to call into question the legitimacy of particular applications of the federal environmental statutes to intrastate activities, particularly if the regulatory schemes involve land use. Most applications, however, including those that do not involve obvious interstate spillovers, should survive constitutional challenge on the basis of the cumulative effects of the regulated activities on interstate commerce.

The third federalism case on the docket, actually the consolidated petitions in Kimel²¹¹ and United States v. Florida Board of Regents,²¹² is the least likely to have any significant or new effect on the federal environmental laws. Kimel at most appears to involve the application of the Eleventh and Fourteenth Amendment principles the Court recently has emphasized and developed, but to a different federal statute than in the previous cases—the Age Discrimination in Employment Act. It seems unlikely that a decision in Kimel will have much, if any, effect on the constitutional validity and enforceability of the federal environmental statutes.

Conclusion

The Supreme Court's federalism decisions of the 1990s may have limited practical significance with respect to Congress' constitutional authority to enact federal environmental laws. Even after Lopez, Congress probably retains the constitutional authority to regulate most matters with potential environmental implications pursuant to its commerce powers. Congress cannot, however, compel the states to enact state laws implementing federal environmental requirements or commandeer state officials for use in enforcing federal environmental laws.

Although Congress lacks the power under the Commerce Clause to subject states to suit in either federal or state court for violations of federal environmental statutes, a variety of enforcement mechanisms and options remain available, including the conditioning of federal funding on compliance with federal statutes, suits against individual state officials, suits against municipal governments, and suits brought directly against states by the federal government itself. In sum, the Court's recent federalism decisions may make the implementation and the enforcement of federal environmental laws more complicated and difficult in some instances, but the decisions do not ultimately appear to preclude Congress from regulating environmental matters in any significant measure.

1. See generally Richard E. Levy & Stephen R. McAllister, Defining the Roles of the National and State Governments in the American Federal System: A Symposium, 45 U. KAN. L. REV. 971 (1997), and the articles appearing in the symposium issue, 45 U. KAN. L. REV. No. 4 (July 1997).

2. The "federalism five" consists of Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas.

3. See, e.g., New York v. United States, 505 U.S. 144 (1992); United States v. Lopez, 514 U.S. 549 (1995); Seminole Tribe of Florida v. Florida. 517 U.S. 44 (1996); Printz v. United States, 521 U.S. 898 (1997); Alden v. Maine, 119 S. Ct. 2240 (1999); College Sav. Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 119 S. Ct. 2219 (1999); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999). The exception is City of Boerne v. Flores, 521 U.S. 507 (1997), which was decided by a 6-3 vote, with Justices Stevens and Ginsburg joining the federalism five, except for Justice O'Connor, who dissented on other grounds.

4. See, e.g., Lopez, 514 U.S. at 549.

5. See, e.g., City of Boerne, 521 U.S. at 507; College Sav. Bank, 119 S. Ct. at 2219; Florida Prepaid, 119 S. Ct. at 2199.

6. See, e.g., New York, 505 U.S. at 144; Printz, 521 U.S. at 898.

7. See, e.g., Seminole Tribe, 517 U.S. at 44.

8. See Alden, 119 S. Ct. at 2240.

9. 514 U.S. 549 (1995).

10. See Stephen R. McAllister, Is There a Judicially Enforceable Limit to Congressional Power Under the Commerce Clause?, 44 U. KAN. L. REV. 217 (1996); Stephen R. McAllister, Lopez Has Some Merit, KAN. J.L. & PUB. POL'Y, Spring 1996, at 9.

11. See, e.g., City of Boerne, 521 U.S. at 507; College Sav. Bank, 119 S. Ct. at 2219; Florida Prepaid, 119 S. Ct. at 2199.

12. New York, 505 U.S. at 144.

13. See Printz, 521 U.S. at 898.

14. See Seminole Tribe, 517 U.S. at 44; Alden, 119 S. Ct. at 2240.

15. See City of Boerne, 521 U.S. at 507; College Sav. Bank, 119 S. Ct. at 2219; Florida Prepaid, 119 S. Ct. at 2199.

16. 119 S. Ct. 2240 (1999).

17. See College Sav. Bank, 119 S. Ct. at 2219; Florida Prepaid, 119 S. Ct. at 2199.

18. See Reno v. Condon, 155 F.3d 453 (4th Cir. 1998), cert. granted, No. 98-1464, 119 S. Ct. 1753 (May 17, 1999) (Question Presented: Does 1994 Drivers' Privacy Protection Act contravene constitutional principles of federalism?); Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted, No. 98-791, 119 S. Ct. 901 (Jan. 25, 1999) (Question Presented: Does Eleventh Amendment bar private suit in federal court against state for violation of Age Discrimination in Employment Act (ADEA)?); United States v. Florida Bd. of Regents, No. 98-796 (Questions Presented: Does ADEA contain clear abrogation of states' Eleventh Amendment immunity from suit by individuals? Was extension of ADEA to states proper exercise of Congress' power under section 5 of the Fourteenth Amendment, thereby constituting valid exercise of congressional power to abrogate states' Eleventh Amendment immunity from suit by individuals?); Vermont Agency of Natural Resources v. United States, 162 F.3d 195 (2d Cir. 1998), cert. granted, No. 98-1828, 119 S. Ct. 2391 (June 24, 1999) (Questions Presented: Is state a "person" subject to liability under False Claims Act (FCA)? Does Eleventh Amendment preclude private relator from commencing and prosecuting an FCA suit against unconsenting state?).

19. See Vermont Agency, in which one issue before the Court is whether the Eleventh Amendment bars qui tam suits brought by individual citizens against the states.

20. 119 S. Ct. 2240 (1999).

21. 29 U.S.C. § 201 et seq.

22. 517 U.S. 44 (1996).

23. See, e.g., Nevada v. Hall, 440 U.S. 410 (1979).

24. 2 Dall. 419, 1 L.Ed. 440 (1793).

25. 119 S. Ct. at 2246-54.

26. See id. at 2270-87 (Souter, J., dissenting).

27. Id. at 2254 (emphasis added).

28. Id. at 2254-66.

29. Id. at 2264-66. Instead, the states' sovereign immunity from suits in state court based on federal law derives from the structure of the Constitution itself, not the Eleventh Amendment.

30. Id. at 2266.

31. Id. at 2267.

32. Id.

33. Id.

34. 209 U.S. 123 (1908).

35. 119 S. Ct. at 2267.

36. Id. See West Virginia v. United States, 479 U.S. 305, 311 (1987); Principality of Monaco v. Mississippi, 292 U.S. 313, 328-29 (1934); United States v. Texas, 143 U.S. 621, 644-46 (1892).

37. 119 S. Ct. 2219 (1999).

38. 15 U.S.C. § 1125(a).

39. The Trademark Remedy Clarification Act amended the original Lanham Act to subject states to suit in federal court for violations of § 43(a). See 106 Stat. 3567, codified at 15 U.S.C. § 1122.

40. 119 S. Ct. at 2224 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)).

41. Id. (citing City of Boerne v. Flores, 521 U.S. 507 (1997)).

42. Id.

43. Id.

44. Id.

45. Id. The Court used the public lands as an example of a situation in which no individual can claim a property right—the "tragedy of the commons"—because no one has the right to exclude others. Id.

46. Id. at 2224-25. The Court did observe, however, that "the Lanham Act may well contain provisions that protect constitutionally cognizable property interests—notably, its provisions dealing with infringement of trademarks, which are the 'property' of the owner because he can exclude others from using them." Id. at 2224.

47. Id. at 2225.

48. Id. (emphasis in original).

49. 521 U.S. 507 (1997).

50. 119 S. Ct. at 2225.

51. 377 U.S. 184 (1964).

52. 119 S. Ct. at 2226.

53. Id.

54. 119 S. Ct. 2199 (1999).

55. U.S. CONST. art. I, § 8, cl. 3.

56. Id. at cl. 8.

57. 119 S. Ct. at 2205.

58. City of Boerne v. Flores, 521 U.S. 507 (1997).

59. 119 S. Ct. at 2207.

60. Id. at 2207-08.

61. Id. at 2209-10.

62. Id. at 2210.

63. Id.

64. 162 F.3d 195, 29 ELR 20405 (2d Cir. 1998), cert. granted, No. 98-1828, 119 S. Ct. 2391 (June 24, 1999).

65. A qui tam suit is one that is, in theory, on behalf of the sovereign, but which private citizens are authorized to bring in the government's name. In the FCA context, the statute provides that "[a] person may bring a civil action for a violation of section 3729 for the person and for the United States Government. The action shall be brought in the name of the Government." 31 U.S.C. § 3730(b)(1). The sovereign retains the authority to exercise significant control over the litigation, if it intervenes, and will receive the lion's share of any recovery, although the qui tam plaintiff also is entitled to a share of any damages. See, e.g., 31 U.S.C. § 3730(d).

66. See 31 U.S.C. § 3729(a) (imposing civil liability on "any person who makes a false monetary claim to the United States Government"). In this case, the allegation is that the defendant state agency, which received federal grants administered by the U.S. Environmental Protection Agency (EPA) for purposes of implementing provisions of the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA), misused those funds to pay salaries of state employees for work not actually involving the federal water statutes. See Vermont Agency of Natural Resources, 162 F.3d at 198, 29 ELR at 20406 (describing allegations of complaint).

67. 162 F.3d at 201-03.

68. See, e.g., West Virginia v. United States, 479 U.S. 305, 311 (1987); United States v. Texas, 143 U.S. 621, 644-46 (1892).

69. 162 F.3d at 203-08.

70. 155 F.3d 453 (4th Cir. 1998), cert. granted, No. 98-1464, 119 S. Ct. 1753 (May 17, 1999).

71. Id. at 457-65.

72. 505 U.S. 144 (1992).

73. 521 U.S. 898 (1997).

74. 139 F.3d 1426 (11th Cir. 1998), cert. granted, Nos. 98-791, 98-796, 119 S. Ct. 901 (Jan. 25, 1999).

75. Age Discrimination in Employment Act of 1967, § 2, 29 U.S.C. § 621.

76. See, e.g., Erwin Chemerinsky, Permission to Litigate: Sovereign Immunity Lets States Decide Who Can Sue Them, 85 A.B.A.J. 42 (Aug. 1999); Curt A. Levey, The Quiet Revolution, LEGAL TIMES, July 12, 1999, at S23 (quoting both approving and disapproving comments of constitutional scholars); Bernard James, The States' Rights Cases Provoke Fire, NAT'L. L.J., Aug. 16, 1999, at B10; Marcia Coyle & Harvey Berkman, Justices Weigh in on Side of States, NAT'L. L.J., July 5, 1999, at Al (same).

77. See, e.g., Chemerinsky, supra note 76, at 43 ("Alden means that states can ignore all federal laws, except for those enacted under section 5 of the 14th Amendment") (emphasis added).

78. Alden, 119 S. Ct. 2266-68.

79. Id. at 2266.

80. Id. at 2267.

81. Id.

82. Id.

83. 209 U.S. 123 (1908).

84. 119 S. Ct. at 2267.

85. Id. See West Virginia v. United States, 479 U.S. 305, 311 (1987); Principality of Monaco v. Mississippi, 292 U.S. 313,328-29 (1934); United States v. Texas, 143 U.S. 621, 644-46 (1892).

86. For analysis of the impact of Seminole Tribe on environmental enforcement and citizen suits, see generally Jeffrey D. Reynolds, Defanging Environmental Law: Extracting Citizen Suit Provisions Under Seminole Tribe v. Florida, 12 J. NAT. RESOURCES & ENVTL. L. 71 (1996-1997).

87. An interesting example is Prisco v. A&D Carting Corp., 168 F.3d 593, 29 ELR 20609 (2d Cir. 1999), where state-law enforcement officers investigating corruption in the construction and demolition industry undertook a sting operation that allegedly resulted in violation of the Resource Conservation and Recovery Act.

88. E.g., Ross v. Federal Highway Admin., 162 F.3d 1046, 29 ELR 20342 (10th Cir. 1998); Clairton Sportsmen's Club v. Pennsylvania Turnpike Comm'n, 882 F. Supp. 455, 25 ELR 21288 (W.D. Pa. 1995).

89. E.g., Palila v. Hawaii Dep't of Land & Natural Resources, 852 F.2d 1106, 18 ELR 21199 (9th Cir. 1988). Cf. Strahan v. Coxe, 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997) (citizen suit under the ESA and the Marine Mammal Protection Act alleging that state operation of licensing scheme for gillnet and lobster pot fishing amounted to an impermissible statutory taking), cert. denied, 119 S. Ct. 81 (1998).

90. E.g., Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 27 ELR 20173 (9th Cir. 1996) (citizen suit alleging lack of compliance with CWA permit for stormwater runoff at state roadways and maintenance yards); Committee to Save the Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 24 ELR 20225 (9th Cir. 1993) (citizen suit alleging discharges without a permit at abandoned mine facility operated in part by state agency, in violation of the CWA); Pennsylvania Envtl. Defense Found. v. Mazurkiewicz, 712 F. Supp. 1184, 19 ELR 21445 (M.D. Pa. 1989) (citizen suit alleging violations of the CWA by state prison).

91. See, e.g., Robert L. Glicksman, Pollution on the Federal Lands I: Air Pollution Law, 12 UCLA J. ENVTL. L. & POL'Y 1, 6 (1993); Robert L. Glicksman, Pollution on the Federal Lands III; Regulation of Solid and Hazardous Waste Management, 13 STAN. ENVTL. L.J. 3, 5, 7-15, 63-74 (1994); Robert L. Glicksman, Pollution on the Federal Lands IV: Liability for Hazardous Waste Disposal, 12 UCLA J. ENVTL. L. & POL'Y 233, 237-38, 294-302 (1994).

92. Pub. L. No. 104-4, 109 Stat. 48 (1995). For a description of the Act, see FREDERICK R. ANDERSON, ROBERT L. GLICKSMAN, DANIEL R. MANDELKER & A. DAN TARLOCK, ENVIRONMENTAL PROTECTION: LAW AND POLICY 175-76 (3d ed. 1990). See generally Elizabeth Garrett, Enhancing the Political Safeguards of Federalism? The Unfunded Mandates Reform Act of 1995, 45 U. KAN. L. REV. 1113 (1997); Robert W. Adler, Unfunded Mandates and Fiscal Federalism: A Critique, 50 VAND. L. REV. 1137 (1997); David A. Dana. The Case for Unfunded Environmental Mandates, 69 S. CAL. L. REV. 1 (1995); Rena I. Steinzor, Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reform?, 81 MINN. L. REV. 97 (1996).

93. See 42 U.S.C. § 7506(c)(1).

94. New York v. United States, 505 U.S. 144, 22 ELR 21082 (1992).

95. Pub. L. No. 99-240, 99 Stat. 1842.

96. The states also objected to the provisions requiring them to take title to low-level waste that could not be disposed of within their borders and become liable for damages resulting from management of the waste within the states' possession. For an analysis of New York, see generally Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 U. KAN. L. REV. 493 (1993). For an analysis of potential state liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CER-CLA) for state involvement at low-level radioactive waste disposal sites, see Cheryl Kessler Clark, State Liability Under CERCLA for Low-Level Radioactive Waste Disposal: Preparing for the Inevitable, 11 PACE ENVTL. L. REV. 587 (1994).

97. See, e.g., Clark v. Barnard, 108 U.S. 436, 447 (1883).

98. See, e.g., Beers v. Arkansas, 61 U.S. (20 How.) 527, 529 (1858) (decision to waive immunity "is altogether voluntary on the part of the sovereignty"); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985) (stringent test for finding waiver requires clear and express statement to that effect by the state); Pennhurst State Sch. & Hosp. v. Haldeman, 465 U.S. 89, 99 (1984) (waiver must be "unequivocally expressed"); Great N. Life Ins. Co. v. Read, 322 U.S. 47, 54 (1944) (waiver requires a "clear declaration"). See generally College Savings Bank, 119 S. Ct. at 2226-27 (discussing cases and the waiver doctrine).

99. 119 S. Ct. at 2228 (overruling Parden v. Terminal R.R. Co. of Alabama Docks Dep't, 377 U.S. 184 (1964)). Thus, the Court's recent decisions strongly indicate that, even if Congress enacted a law that says "if a state engages in Z activity, then the state will be deemed to have waived its sovereign immunity with respect to suits arising out of Z activity," the state's actual participation in activity Z will not waive the state's constitutionally based sovereign immunity. The one exception to this proposition might be a state's decision to voluntarily remove a suit from state to federal court. See Wisc. Dep't of Corrections v. Schacht, 524 U.S. 381 (1998) (Kennedy, J., concurring); cf. College Savings Bank, id. at 2226 ("Generally, we will find a waiver … if the State voluntarily invokes our jurisdiction").

100. Alden v. Maine, 119 S. Ct. 2240, 2267 (1999) (citing South Dakota v. Dole, 483 U.S. 203 (1987)).

101. Id.

102. 483 U.S. 203 (1987).

103. See Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 44-45 & n.113 (1988).

104. 483 U.S. 203, 207-08. See also Litman v. George Mason Univ., 1999 WL 547910, at * 7 (4th Cir. July 28, 1999). Litman noted a fifth condition that the financial inducement offered by Congress not be so coercive as to amount to compulsion. Id.

105. See the discussion of the Fourteenth Amendment in the next subsection.

106. See Kansas v. United States, 24 F. Supp. 2d 1192 (D. Kan. 1998) (challenges to the federal Child Support Enforcement Program, enacted as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105), appeal pending.

107. See UnitedStates v. Butler, 297 U.S. 1, 65 (1936):

Madison asserted that it [the Article 1, § 8 reference to the "general welfare"] amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section [Article I, § 8]; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress.

108. Id. at 65-66:

Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States.

109. Id. at 66 ("Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position").

110. See United States v. Bulter, 297 U.S. 1 (1936); Steward Mach. Co. v. Davis, 301 U.S. 548 (1937).

111. See Butler, 297 U.S. at 66 ("the power of Congress to authorize expenditures of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution"); see also Steward Mach. Co., 301 U.S. at 548.

112. Litman v. George Mason Univ., 1999 WL 547910 (4th Cir. July 28, 1999).

113. Id. at * 10.

114. Id.

115. Id. at * 11.

116. Cf. Illinois v. City of Milwaukee, 401 U.S. 91, 100, 104 (1972) (quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907)) (recognizing each state's "quasi-sovereign interests" in protecting its natural resources from impairment by pollution emanating from outside the state and referring to "the ecological rights of a State in the improper impairment of [its resources] from sources outside the State's own territory"). Cf. College Sav. Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 119 S. Ct. 2219 (1999) (a state's sovereign immunity is "'a personal privilege which it may waive at its pleasure'") (quoting Clark v. Barnard, 108 U.S. 436, 447 (1883)). See also North Dakota v. Minnesota, 263 U.S. 365, 374 (1923).

117. 17 U.S. (4 Wheat.) 316 (1819).

118. Under that "well-settled" doctrine, "the government may not require a person to give up a constitutional right … in exchange for a discretionary benefit conferred by the government …." Dolan v. City of Tigard, 512 U.S. 374, 385, 24 ELR 21083, 21085 (1994).

119. See, e.g., Epstein, supra note 103. Indeed, the dissenters in Dolan contended that the doctrine has "long suffered from notoriously inconsistent application" and had never before that case "been an overarching principle of constitutional law that operates with equal force regardless of the nature of the rights and powers in question." Dolan, 512 U.S. at 407 n.12 (Stevens, J., dissenting). The dissenters characterized the doctrine as most apt in the context of First Amendment liberties. Id.

120. Cf. Stephen R. McAllister, Is There a Judicially Enforceable Limit to Congressional Power Under the Commerce Clause?, 44 U. KAN. L. REV. 217 (1996).

121. 42 U.S.C. § 7509(a)(1), ELR STAT. CAA § 179(a)(1). Cf. 23 U.S.C. § 134(l) (provision of Intermodal Service Transportation Efficiency Act barring the use of federal funds for highway projects that will result in a significantincrease in carrying capacity for single occupant vehicles).

122. The rationale for withholding grants for the construction of sewage treatment works on the basis of violations of the CAA is somewhat more my stifying. See 42 U.S.C. § 7616(b), ELR STAT. CAA § 316(b).

123. 42 U.S.C. § 766la(d)(2), ELR STAT. CAA § 502a(d)(2).

124. Id. § 7661a(b)(7).

125. 80 F.3d 869, 26 ELR 21245 (4th Cir. 1996), cert. denied, 519 U.S. 1090 (1997).

126. 80 F.3d at 881, 26 ELR at 21250. The Commerce Clause provided additional authority to regulate pollution-creating activities. Id.

127. Id. at 882, 26 ELR at 21251. It was of no consequence that the sanction, which would have the effect of reducing emissions from mobile source pollution, was being used to induce compliance with a portion of the statute designed to reduce stationary source emissions. Id.

128. Id.

129. See 33 U.S.C. § 1281(g), ELR STAT. FWPCA § 201(g); ANDERSON ET AL., supra note 92, at 733-34.

130. 33 U.S.C. § 1281(g)(2), (5), ELR STAT. FWPCA § 201(g)(2), (5).

131. Id. § 1281(g)(3), ELR STAT. FWPCA § 201(g)(3).

132. Id. § 1281(g)(6), ELR STAT. FWPCA § 201(g)(6).

133. Id. § 1281(k), ELR STAT. FWPCA § 201(k).

134. Id. § 1284(a)(5), ELR STAT. FWPCA § 204(a)(5).

135. Id. § 1284(b)(1)(A), ELR STAT. FWPCA § 204(b)(1)(A).

136. Id. § 1284(b)(1)(B), ELR STAT. FWPCA § 204(b)(1)(B).

137. Section 104(c) of CERCLA bars EPA from providing remedial action unless the state in which the release of hazardous substances occurs first enters into a contract or cooperative agreement in which the state commits to providing future maintenance of removal and remedial actions, assuring the availability of hazardous waste disposal facilities for off-site waste management, and paying specified percentages of the cost of performing and maintaining the remedial action. 42 U.S.C. § 9604(c)(3), ELR STAT. CERCLA § 104(c)(4). The spending clause would appear to support an amendment to this provision requiring, as a further condition of the availability of federal funding for hazardous substance remediation, that the state receiving the funds waive its immunity to suit byprivate persons (assuming any would have standing to enforce a contract or cooperative agreement with the federal government) for violating the conditions already specified in § 104(c).

138. ENVIRONMENTAL LAW INSTITUTE, ENVIRONMENTAL LAW: FROM RESOURCES TO RECOVERY 31(Celia Campbell-Mohn, et al. eds., 1993). See also Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981) (upholding Surface Mining Control and Reclamation Act as valid exercise of the commerce power). Statutes designed to govern management of the federal public lands also may be grounded in Congress' authority under the property clause, U.S. CONST. art. JV, § 3, cl. 2, see generally GEORGE CAMERON COGGINS & ROBERT L. GLICKSMAN, PUBLIC NATURAL RESOURCES LAW § 3.03[3], and other resource protection measures, such as laws designed to protect migratory birds, have been adopted pursuant to the treaty clause, U.S. CONST. art. II, § 2, cl. 2. See generally COGGINS & GLICKSMAN, supra, at § 3.03[4][b][ii].

139. Some lower courts have held that "the appropriate question is not whether Congress did in fact enact a statute pursuant to the Fourteenth Amendment, but whether the objectives of the statute are within Congress' theoretical Fourteenth Amendment power." Froebel v. Meyer, 13 F. Supp. 2d 843, 850 n.5 (E.D. Wis. 1998) (citing Doe v. University of Ill., 138 F.3d 653, 660 (7th Cir. 1998)).

140. Peter L. Reich, Greening the Ghetto: A Theory of Environmental Race Discrimination, 41 U. KAN. L. REV. 271, 272 (1992). See generally Symposium, Environmental Justice: Mobilizing for the 21st Century, 23 VT. L. REV. 451-604 (1999); Alice Kaswan, Environmental Laws: Grist for the Equal Protection Mill, 70 U. COLO. L. REV. 387 (1999) (assessing what kinds of information would support a showing of a violation of equal protection in the environmental justice context); Luke W. Cole, Remedies for Environmental Racism: A View From the Field, 90 MICH. L. REV. 1991 (1992); Richard J. Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787 (1993). Professor Lazarus has recently characterized environmental justice as one of the "hot topics" of environmental law scholarship (along with international environmental law and biodiversity). Richard J. Lazarus, Environmental Scholarship and the Harvard Difference, 23 HARV. ENVTL. L. REV. 327, 343 (1999).

141. 42 U.S.C. § 2000d.

142. The title VI prohibition on race-based discrimination only reaches instances of intentional discrimination. South Bronx Coalition for Clean Air, Inc. v. Conroy, 20 F. Supp. 2d 565, 29 ELR 20318 (S.D.N.Y. 1998) (citing Alexander v. Choate, 469 U.S. 287, 293 (1985)).

143. E.g., Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925, 28 ELR 20487 (3d Cir. 1997) (private right of action exists to enforce discriminatory effect regulations issued by EPA to enforce title VI of the Civil Rights Act of 1964), vacated and remanded with instructions to dismiss, 119 S. Ct. 22 (1998); South Bronx Coalition, 20 F. Supp. 2d at 572, 29 ELR at 20321 (questioning continuing validity of holding in Seif). See also Heat Energy Advanced Tech., Inc. v. West Dallas Coalition for Envtl. Justice, 962 S.W.2d 288 (Tex. App. 1998) (residents near hazardous waste storage and processing facility had standing to challenge renewal permit); Coalition for a Good Env't v. Louisiana Dep't of Envtl. Quality, No. 458998 (La. Dist. Ct. 19th Dist. Mar. 19, 1999).

144. See, e.g., In Re Knauf Fiber Glass, GMBH, PSD Appeal Nos. 98-3 to 98-20, ELR ADMIN. MAT. 41053 (1999). See also Two Environmental Groups File Civil Rights Complaint Against TNRCC Over Air Permits, 29 Env't Rep. (BNA) 1715 (1999) ("Enhancing private enforcement under citizen suit provisions is one of several ways to use the legal system to promote environmental justice."); Eileen Gauna, Federal Environmental Citizen Provisions: Obstacles and Incentives on the Road to Environmental Justice, 22 ECOLOGY L.Q. 1, 6 n.22 (1995).

145. F.J. "Rick" Dindinger II, Seminole Tribe's Impact on the Ability of Private Plaintiffs to Bring Environmental Suits Against States in Federal Courts, 75 DENV. U.L. REV. 253, 265 (1997).

146. WILLIAM H. RODGERS JR., ENVIRONMENTAL LAW 64 (2d ed. 1994).

147. Froebel v. Meyer, 13 F. Supp. 2d 843, 850 n.5 (E.D. Wis. 1998). Indeed, the author of the law review article that addressed the broader theory himself reached the conclusion that the argument in favor of a broad Fourteenth Amendment grounding for the federal environmental statutes is "admittedly attenuated" and that suits against the states based on that theory "should not succeed." Dindinger, supra note 145, at 273.

148. Florida Prepaid Postsecondary Ed. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199, 2208 (1999).

149. Cf. Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998) (holding that state statute providing immunity from private nuisance actions for farm operations located in designated agricultural areas amounted to a taking of neighboring property owners' land because the statute resulted in the uncompensated imposition on the neighbors' property of an easement for the benefit of the farm operations).

150. College Sav. Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 119 S. Ct. 2219, 2224 (1999).

151. Id.

152. Suits alleging takings by the federal land management agencies have proliferated in recent years. See generally COGGINS & GLICKSMAN, supra note 138, at §§ 4.03-4.06. Many of those suits are disposed of on the threshold ground that the plaintiff lacked a compensable private property interest in the public lands or resources involved. See id. §§ 4.05[3][b][i], [4][a].

153. College Sav. Bank, 119 S. Ct. at 2225.

154. Pennsylvania Coal Co. v. Mahon. 260 U.S. 393, 415 (1922).

155. See, e.g., Lincoln County v. Luning, 133 U.S. 529 (1890). The exception to the general rule occurs when a municipality is de facto just an extension of the state itself for purposes of the suit, for example, when the municipality is simply administering state funds and, thus, any judgment involving those funds will directly impact the state treasury. Edelman v. Jordan, 415 U.S. 651 (1974).

156. 7 U.S.C. §§ 136-136y, ELR STAT. FIFRA §§ 2-34.

157. E.g., 15 U.S.C. § 2619, ELR STAT. TSCA § 20 (Toxic Substances Control Act); 33 U.S.C. § 1365, ELR STAT. FWPCA § 505; 42 U.S.C. § 300j-8, ELR STAT. SDWA § 1449; 42 U.S.C. § 6972, ELR STAT. RCRA § 7002; 42 U.S.C. § 7604, ELR STAT. CAA § 304.

158. 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g).

159. See id. § 1532(13), ELR STAT. ESA § 3(13); 33 U.S.C. § 1362(5), ELR STAT. FWPCA § 502(5); 42 U.S.C. § 300f(12), ELR STAT. SDWA § 1401(12); 42 U.S.C. § 6903(15), ELR STAT. RCRA § 1004(15); 42 U.S.C. § 7602(e), ELR STAT. CAA § 302(e). The federal pollution control statutes may also authorize suits against local governments alleged to have engaged in activities that may present an imminent and substantial endangerment to health or the environment. E.g., 42 U.S.C. § 6973(a), ELR STAT. RCRA § 7003(a); Staten Island Citizens for Clean Air, Ltd. v. City of New York, 988 F. Supp. 208 (E.D.N.Y. 1997); Gache v. Town of Harrison, 813 F. Supp. 1037, 24 ELR 21023 (S.D.N.Y. 1993).

160. 33 U.S.C. §§ 2701(27), (32), 2702(a), ELR STAT. OPA §§ 1001(27), (32), 1002(a); 42 U.S.C. §§ 9601(20)(A)(i), 9607(a), ELR STAT. CERCLA §§ 101(20)(A)(I), 107(a). But see id. § 9601(20)(D), ELR STAT. CERCLA § 101(20)(D) (excluding local governments from liability in certain instances).

161. See, e.g., City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 24 ELR 20810 (1994); Jones v. City of Lakeland, 175 F.3d 410, 29 ELR 21108 (6th Cir. 1999); Ashoff v. City of Ukiah, 130 F.3d 409, 28 ELR 20217 (9th Cir. 1997); Committee to Save the Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 24 ELR 20225 (9th Cir. 1993); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 22 ELR 20683 (2d Cir. 1992); Coalition Against Columbus Ctr. v. City of New York, 967 F.2d 764, 22 ELR 21154 (2d Cir. 1992); Atlantic Terminal Urban Renewal Area Coalition v. New York City Dep't of Envtl. Protection, 697 F. Supp. 157, 19 ELR 20295 (1988).

162. Suits also may be available despite the Eleventh Amendment and the structural sovereign immunity recognized in Alden against entities that appear to be "arms of the state" because the need for protection against state liability and the concerns for the protection of state sovereignty are minimal with respect to those particular entities. See, e.g., Mancuso v. New York State Thruway Auth., 86 F.3d 289, 26 ELR 21418 (2d Cir. 1996); Niagara Mohawk Power Corp. v. Jones Chem., Inc., 1998 WL 166875 (N.D.N.Y. Apr. 3, 1998).

163. E.g., Howlett v. Rose, 496 U.S. 356, 367 (1990) ("The Supremacy Clause makes [federal] laws 'the supreme Law of the Land,' and charges state courts with a coordinate responsibility to enforce that law according to their regular modes of procedure."); Davis v. Sun Oil Co., 148 F.3d 606, 611-12, 28 ELR 21358, 21360 (6th Cir. 1998) (holding that the citizen suit provision of RCRA does not grant exclusive jurisdiction to the federal courts). But see Jilot v. Colorado, 944 P.2d 566, 568-69 (Colo. App. 1997) (citizen suit provision of RCRA vests exclusive jurisdiction over claims concerning alleged violations of RCRA in federal district courts).

164. 42 U.S.C. § 9613(b), ELR STAT. CERCLA § 113(b).

165. Cf. Grine v. Coombs, No. 98-3494, 1999 U.S. App. LEXIS 19047 (3d Cir. July 15, 1999) (unpublished) (claims against state under RCRA and CERCLA dismissed in federal court on Eleventh Amendment grounds could be refiled in state court).

166. Suits for violations of state standards that exceed minimum federal requirements apparently must proceed in state court. See Ashoff, 130 F.3d at 412, 28 ELR at 20218. Professor Light asserts that the extent to which a state must provide a right to sue it in state court where suit is unavailable in federal court due to the Eleventh Amendment is an open question. Alfred R. Light, He Who Pays the Piper Should Call the Tune: Dual Sovereignty in U.S. Environmental Law, 4 ENVTL. LAW. 779, 793 (1998).

167. See Hafer v. Melo, 502 U.S. 21 (1991).

168. See Ex parte Young, 209 U.S. 123 (1908).

169. Cf. Regents of Univ. of Cal. v. Doe, 519 U.S. 425 (1997) (the fact that the federal government has agreed to indemnify the state for any damages incurred from its involvement in a particular program does not deprive the state of its Eleventh Amendment immunity defense when sued in federal court regarding that program). On the other hand, some lower courts have indicated that the presence or absence of state indemnity is a factor to consider in determining whether a state official is entitled to invoke Eleventh Amendment immunity. See, e.g., Hudson v. City of New Orleans, 174 F.3d 677, 688 (5th Cir. 1999).

170. Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

171. 117 S. Ct. 2028 (1997), 27 ELR 21227.

172. See, e.g., Tenney v. Brandhove, 341 U.S. 367 (1951) (absolute immunity for state legislators); Imbler v. Pachtman, 424 U.S. 409 (1976) (absolute immunity for prosecutorial functions); Stump v. Sparkman, 435 U.S. 349 (1978) (absolute immunity for judicial functions); Harlow v. Fitzgerald, 457 U.S. 800 (1982) (qualified immunity for executive officials generally); Bogan v. Scott-Harris, 523 U.S. 44 (1998) (absolute immunity for local legislators).

173. The resolution of other issues also may bear on the effectiveness and availability of suits against individual state officials in their personal capacities. For instance, certain kinds of liability, e.g., contracts with the state, may necessarily or typically run against the entity, rather than the individual officials. Or questions may arise about the extent of indemnity a state provides to its officials. For example, if a state indemnifies an official beyond the extent of that official's assets, which would otherwise be the extent of the liability that could be enforced by the plaintiff, would such a practice implicate the Eleventh Amendment by virtue of its impact on the state treasury?

174. 127 F.3d 155, 28 ELR 20114 (1st Cir. 1997), cert. denied, 119 S. Ct. 81 (1998).

175. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

176. 127 F.3d at 166-67, 28 ELR at 20119. The court also held that the Tenth Amendment did not bar the relief sought by the plaintiff because, instead of ordering the defendants to take positive steps to advance the goals of a federal regulatory scheme, the district court directed them to bring the state's licensing scheme into compliance with the ESA. Such relief was consistent with the balance of federal-state authority as defined in New York v. United States. Id. at 169-70, 28 ELR at 20120.

177. Natural Resources Defense Council v. California Dep't of Transp., 96 F.3d 420, 27 ELR 20173 (9th Cir. 1996).

178. Id. at 423.

179. Id.

180. Seminole Tribe, 517 U.S. 44. 75 n.17 (1996).

181. Id. In earlier opinions, the Court had described the CWA's enforcement scheme as "unusually elaborate" and comprehensive. E.g., Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 13-14, 11 ELR 20684, 20687 (1981); City of Milwaukee v. Illinois, 451 U.S. 304, 317, 11 ELR 20406, 20409 (1981). The Court in Seminole Tribe also cited 42 U.S.C. § 11001, ELR STAT. EPCRA § 301, a provision of the Emergency Planning and Community Right-To-Know Act holding state governors responsible for failure to implement certain emergency spill response planning functions, as a statute in which Congress implicitly authorized Ex parte Young suits. 517 U.S. at 75 n.17.

182. 96 F.3d at 424, 27 ELR at 20175. A federal district court in Wisconsin subsequently confirmed that result. The court concluded in a suit alleging violations of the CWA by state officials who failed to procure a discharge permit before causing stream siltation in the course of removing a dam that neither Seminole Tribe nor Idaho imposed any new limits on the availability of prospective injunctive relief against state officials for violations of the CWA. Froebel v. Meyer, 13 F. Supp. 2d 843, 853-54 (E.D. Wis. 1998). See also Committee to Save the Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 309-10, 24 ELR 20225, 20227 (9th Cir. 1993), cert. denied, 513 U.S. 873 (1994); Pennsylvania Envtl. Defense Found. v. Mazurkiewicz, 712 F. Supp. 1184, 19 ELR 21445 (M.D. Pa. 1989) (issuing injunction to prevent officials at state prison from committing further violations of CWA permit, even though the State would have to incur expenses to comply with decree issued against state officials).

183. Id. (quoting S. Rep. No. 92-414, reprinted in 1972 U.S.C.C.A.N. 3668, 3746).

184. See Andrew A. Williamson, Policing the States After Seminole, 85 GEO. L.J. 1739, 1757 (1997). See also Grine v. Coombs, No. 98-3494, 1999 U.S. App. LEXIS 19047 (3d Cir. July 15, 1999) (unpublished) (upholding dismissal of RCRA citizen suit against state officials because the plaintiffs sought damages for past activity rather than injunctive relief).

185. Vermont Agency of Natural Resources v. United States, 162 F.3d 195 (2d Cir. 1998), cert. granted, No. 98-1828, 119 S. Ct. 2391 (June 24, 1999).

186. Such suits could even be filed as original actions in the Supreme Court itself, see U.S. CONST. art. III, § 2, cl. 2, a result that, presumably, the Court would not find desirable.

187. The willingness of some states to provide expansive privileges and immunity from criminal prosecution for corporations that engage in self-audits provides a recent example of an ongoing dispute between federal and state enforcement officials. See ANDERSON ET AL., supra note 92, at 1097-103.

188. Vermont Agency of Natural Resources, 162 F.3d at 195 (2d Cir. 1998), cert. granted, No. 98-1828, 119 S. Ct. at 2391.

189. Alden, 119 S. Ct. at 2267.

190. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 577-78, 22 ELR 20913, 20919 (1992).

191. At least one court in an environmental dispute has recently declined to resolve the Eleventh Amendment question. See Rowlands v. Pointe Mouille Shooting Club, 1999 WL 520110, at * 3 n.3 (6th Cir. July 14, 1999) (unpublished).

192. 31 U.S.C. §§ 3729-3731.

193. See Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 173-76 (1992). See also Harold J. Krent, Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275 (1989).

194. See Sunstein, supra note 193, at 232-33; Cass R. Sunstein, Informational Regulation and Informational Standing: Akins and Beyond, 147 U. PA. L. REV. 613, 656 (1999); Karin P. Sheldon, Steel Co. v. Citizens for a Better Environment: Citizens Can't Get No Psychic Satisfaction, 12 TUL. ENVTL. L.J. 1, 52-53 (1998); Aaron Roblan & Samuel H. Sage, Steel Co. v. Citizens for a Better Environment: The Evisceration of Citizen Suits Under the Veil of Article III, 12 TUL. ENVTL. L.J. 59, 84 (1998).

195. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573, 22 ELR 20913, 20917 (1992).

196. A student observer has characterized congressional authorization of qui tam actions to enforce the substantive provisions of federal statutes affected by Seminole Tribe as "at least a plausible option." Williamson, supra note 184, at 1761. On qui tam actions, both generally and in the environmental law context, see Evan Caminker, The Constitutionality of Qui Tam Actions, 99 YALE L.J. 341 (1989); Edmund C. Baird, III, The Use of Qui Tam Actions to Enforce Federal Grazing Permits, 72 WASH. U. L.Q. 1407 (1994); Paul W. Morenberg, Environmental Fraud by Government Contractors: A New Application of the False Claims Act, 22 B.C. ENVTL. AFF. L. REV. 623 (1995); Karen Nicole Schmidt, Privatizing Environmental Enforcement: The Bounty Incentives of the False Claims Act, 9 GEO. INT'L ENVTL. L. REV. 663 (1997).

197. E.g., Missouri v. Illinois, 180 U.S. 208 (1901). See generally Robert L. Glicksman, Watching the River Flow: The Prospects for Improved Interstate Water Pollution Control, 43 WASH, U. J. URB. & CONTEMP. L. 119 (1993) (analyzing interstate water pollution dispute in Arkansas v. Oklahoma, 503 U.S. 91, 22 ELR 20552 (1992)).

198. See, e.g., Findings of Significant Contribution and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport, 64 Fed. Reg. 28250 (1999) (granting portions of the petitions of eight northeastern states requesting a finding that emissions of nitrogen oxides from sources in upwind states significantly contributed to ozone nonattainment problems in the petitioning states).

199. See, e.g., Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. PA. L. REV. 2341 (1996).

200. U.S. CONST. art. III, § 2, cl. 2.

201. Compare Nevada v. Hall, 440 U.S. 410 (1979), in which the Court held that the Eleventh Amendment did not prevent California from permitting one of its citizens to sue the state of Nevada in California state court in a personal injury suit. In Alden, 119 S. Ct. 2240 (1999), the Court distinguished Hall on the (perhaps unconvincing) ground that Hall involved only state-law questions and questions of the states' power vis-a-vis each other, rather than any question of Congress' power over the states. 119 S. Ct. at 2258-59. See also International Paper Co. v. Ouellette, 479 U.S. 481, 17 ELR 20327 (1987) (state common-law action for interstate pollution may be brought in courts of state where pollution injury occurs, but the substantive law of the state where the pollution originates must apply).

202. See Gibbs v. Babbitt, 31 F. Supp. 2d 531, 535-36 & n.13 (E.D.N.C. 1998).

203. United States v. Romano, 929 F. Supp. 502 (D. Mass. 1996).

204. United States v. Lundquist, 932 F. Supp. 1237, 1244-45 (D. Or. 1996).

205. United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996).

206. National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 28 ELR 20403 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998). See generally John C. Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174 (1998).

207. United States v. Olin Corp., 107 F.3d 1506, 27 ELR 20778 (11th Cir. 1997).

208. United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. 1997).

209. 33 U.S.C. § 1344, ELR STAT. FWPCA § 404.

210. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 998 F. Supp. 946 (N.D. Ill. 1998). See also United States v. Hallmark Constr. Co., 14 F. Supp. 2d 1069, 1074, 29 ELR 20168, 20170 (N.D. Ill. 1998).

211. Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted, 119 S. Ct. 901 (1999).

212. No. 98-796.

29 ELR 10665 | Environmental Law Reporter | copyright © 1999 | All rights reserved