Court ruling could affect environmental laws

On March 27, 1996, in Seminole Tribe of Florida v. Florida, the U. S. Supreme Court considered whether private parties may sue states in federal court. In a 5-4 decision, the court determined that federal legislation cannot override the .sovereign immunity granted to the states by the 11th Amendment.

The decision seriously affects approximately half the states, where Indian gambling generates $6 billion in revenues annually, allowing states more leeway in regulating casino gambling on Indian reservations.

Many states and local governments see the case as a major victory in their fight to regulate unwelcome gam bring on nearby Native American lands. Despite the revenues it generates, marry local officials view gambling as a drain that provides few economic benefits and does nothing to solve local unemployment since Native American casinos traditionally employ only Native Americans.

Seminole arose because of a dispute under the 1988 Indian Gaming Regulatory Act, which provides a statutory basis for the operation and regulation of gaming by Native American tribes. Under the act, tribes are allowed to conduct certain gaming activities in accordance with a compact between the tribe and the state where the gaming activities are located.

States are required to negotiate in good faith with a tribe to develop a compact. If a state does not do so, a tribe may sue in federal court. In the Seminole case, Florida successfully fought the Seminole Tribe’s complaint on the ground that the action violated Florida’s sovereign immunity from suit in federal court.

Although Seminole arose because of a dispute under the act, it affects several areas of federal law in which private enforcement is an integral part of the regulatory scheme.

The opinion does not simply preclude Congress from establishing the rather curious statutory scheme under which Indian tribes may seek the aid of a federal court to secure a state’s good faith negotiations over gaming regurations. “Rather, it prevents Congress from providing a federal forum for a broad range of actions against states, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law and the regulation of our vast national economy,” wrote Justice John Paul Stevens in the dissent.

The decision directly affects environmental laws, such as the Clean Air Act; the Clean Water Act; the Toxic Substances Control Act (TSCA); the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); and the Resource Conservation and Recovery Act (RCRA), that include private enforcement and citizen suit provisions allowing private action against states and local governments failing to comply with federal regulations.

Those citizen suit provisions are unconstitutional, according to the majority opinion in the case, because Congress may not waive a state’s constitutionally provided sovereign immunity.

In so holding, the Supreme Court has disabled Congress’ initiative to privatize the enforcement of federal environmental laws at a time when federal enforcement funds are low and centralized federal bureaucracy is high. Seminole may free states from the burden of citizen suits, but it leaves questions about equal application of the law between state and local governments, as well as individuals, corporations and the federal government.

Under CERCLA, for instance, the ruling will prevent a corporation or federal agency from seeking federal court resolution of a liability–apportionment dispute with a state that is among the parties responsible for a site’s con lamination, thus increasing the burden of clean-up costs on private parties and federal agencies and reducing it on state and local governments.

In ether words, states will not be forced to pay their share if no objective forum exists for enforcement. A number of states have enacted mini-Superfund statutes that waive sovereign immunity without federal mandate.

But a state without such a waiver is unlikely to subject itself to potential damages for a Superfund cleanup. Public pressure, of course, may be a determining factor, and the experience will vary from state to state.

The same problem does not appear to be present in environmental compliance and corrective action. The Environmental Protection Agency (EPA) and the Department of Justice can get around the 11th Amendment through their normal enforcement powers by suing officials of the responsible state agency by name instead of suing the state itself.

Injunctive relief can still be obtained under another Supreme Court decision, Ex parse Young, to remedy a state officer’s ongoing violation of federal law. State and local government officials should be especially cognizant of this case.

Finally, Congress still has some leverage to compel states to waive sovereign immunity.

It can indirectly compel a state to waive sovereign immunity by making federal funds available only to states that have waiver provisions.

For example, EPA recently issued a rule stating that state wastewater discharge permitting programs must include judicial review provisions that allow citizens to challenge final permit decisions in court.

States have until June 7, 1997, to revise their NPOES programs or risk disapproval of their programs and funding by EPA.

This article was written by Jefferson Reynolds, Deputy Regional Counsel, Air Force Legal Services Agency, Environmental Law & Litigation, Atlanta.