US v. Georgia Dept. of Natural Resources

• Decision Date: 02 August 1995
• Docket Number: Civ. A. No. 1:94-CV-2993-JOF.
• Citation: 897 F. Supp. 1464
• Parties: UNITED STATES of America, Plaintiff, v. GEORGIA DEPARTMENT OF NATURAL RESOURCES, Defendant.
• Court: U.S. District Court — Northern District of Georgia

897 F. Supp. 1464

UNITED STATES of America, Plaintiff, v. GEORGIA DEPARTMENT OF NATURAL RESOURCES, Defendant.

Civ. A. No. 1:94-CV-2993-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

August 2, 1995.

Patricia Rebecca Stout, Russell Glenn Vineyard, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, Naikang Tsao, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for plaintiff.

Diane L. DeShazo, State of Georgia Law Department, Atlanta, GA, Alan Gantzhorn, Office of State Attorney General, Atlanta, GA, for defendant.

ORDER

FORRESTER, District Judge.

This matter is before the court on the parties' cross motions for summary judgment. There are no factual disputes and the sole legal issue to be decided by this court is whether the Clean Air Act contains a waiver of sovereign immunity permitting a state to impose punitive civil fines on the United States.

I. FACTS

On March 21, 1994, the Georgia Department of Natural Resources ("GDNR") filed administrative petitions with the Georgia Board of Natural Resources seeking to impose punitive civil penalties on the United States Army¹ and the Federal Bureau of Prisons² for alleged violations of the Georgia Air Quality Act ("GAQA"), O.C.G.A. § 12-9-1, et seq.³ The GDNR alleged that the federal facilities had modified their boiler systems without first obtaining either a permit⁴ or an amendment to an existing permit.⁵

The United States filed a motion to dismiss. In support of their position, the United States pointed to a recent Supreme Court ruling that similar provisions of the Clean Water Act ("CWA") and the Resource Conservation and Recovery Act ("RCRA") did not waive the sovereign immunity of the United States to punitive civil fines. See U.S. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). In response, GDNR contended that the federal facilities⁶ and citizen suit⁷ provisions of the Clean Air Act contain sufficient waivers of sovereign immunity.

On June 15, 1994, Administrative Law Judge ("ALJ") Mark A. Dickerson denied the motion to dismiss. The ALJ noted that, without clear and binding precedent, he lacked the authority to decide the sovereign immunity issue and either ignore the Georgia statute or decide that the Georgia Assembly had exceeded its power in permitting the state to assess civil fines against federal facilities. On October 14, 1994, the ALJ entered final judgment and assessed a civil penalty of $10,000 against each of the facilities.

On November 8, 1994, Plaintiff United States filed the instant action in federal district court against Defendant GDNR. The United States is seeking a declaratory judgment that GDNR is wrongfully seeking to impose civil fines on the federal government and injunctive relief to prevent GDNR from enforcing or collecting these fines.

II. DISCUSSION

A. Cross Motions for Summary Judgment

The parties have filed cross motions for summary judgment on the issue of whether the Clean Air Act contains a waiver of sovereign immunity for civil fines of a punitive nature.

The United States government is subject to suit only to the extent to which it waives its sovereign immunity. U.S. v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Such a waiver must be "unequivocally expressed." U.S. v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1951). See also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1991); Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983); U.S. v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). Waivers of sovereign immunity will be strictly construed. McMahon v. U.S., 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951).⁸

Generally, legislative history is used to place statutory language in its proper context. Tidewater Oil Co. v. U.S., 409 U.S. 151, 158, 93 S.Ct. 408, 413, 34 L.Ed.2d 375 (1972). As noted, supra, however, any waiver of sovereign immunity must be unequivocally expressed to be effective. If legislative history is needed to determine the extent or existence of a waiver of sovereign immunity, the statutory text necessarily is ambiguous and the waiver of sovereign immunity has not been unequivocally expressed. Therefore, legislative history has no bearing on waivers of sovereign immunity. U.S. v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992). Accordingly, this court need not examine legislative history in this situation.

(1) The Clean Air Act

The court now turns its attention to the statutory language. The federal facilities provision of the Clean Air Act provides:

Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any nongovernmental entity. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement whatsoever), (B) to any requirement to pay a fee or charge imposed by any State or local agency to defray the costs of its air pollution regulatory program, (C) to the exercise of any Federal, State, or local administrative authority, and (D) to any process and sanction, whether enforced in Federal, State, or local courts, or in any other manner. This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. No officer, agent, or employee of the United States shall be personally liable for any civil penalty for which he is not otherwise liable.

42 U.S.C. § 7418(a) (Supp.1995) (emphases added).⁹

The citizen suit provision of the CAA provides:

Except as provided in subsection (b) of this section, any person may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation....

42 U.S.C. § 7604(a) (1983). Subsection (e) of this provision continues:

Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). Nothing in the section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from —

(1) bringing any enforcement action or obtaining any judicial remedy or sanction in any State or local court, or

(2) bringing any administrative enforcement action or obtaining any administrative remedy or sanction in any State or local administrative agency, department or instrumentality,

against the United States, any department, agency, or instrumentality thereof, or any officer, agent, or employee thereof under State or local law respecting control and abatement of air pollution. For provisions requiring compliance by the United States, departments, agencies, instrumentalities, officers, agents, and employees in the same manner as nongovernmental entities, see section 7418 of this title.

42 U.S.C. § 7604(e) (1983) (emphases added).¹⁰

(2) Department of Energy v. Ohio: Clean Water Act and Resource Conservation and Recovery Act

In 1992, after the State of Ohio attempted to levy a civil fine against the United States for noncompliance with state environmental laws, the Supreme Court examined the Clean Water Act and the Resource Conservation and Recovery Act to determine the extent that these statutes waived the sovereign immunity of the United States. Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). As explained, infra, the Court held that the waiver encompassed coercive but not punitive civil fines.

CITIZEN SUIT PROVISION

The Court first examined Ohio's contention that the citizen suit provisions of the CWA and the RCRA waived the sovereign immunity of the federal government. Id., 503 U.S. at 614-22, 112 S.Ct. at 1633-36. As an initial matter, the Court noted that, as neither statute defined "person" as encompassing the United States, the statutes' civil penalties sections were not applicable to the federal government. Id., 503 U.S. at 616-20, 112 S.Ct. at 1634-35.

The Court next turned to the expanded definition of "person" in the citizen suit sections. Id., 503 U.S. at 620, 112 S.Ct. at 1635. The citizen suit provisions of the CWA and the RCRA apply to "any person, including the United States." Id. The Court reasoned that, when Congress intended for a new definition to apply to an entire section, Congress would use the phrase, "for the purposes of this section." Id. Since Congress did not use this language in the citizen suit provisions at issue, the Court held that the redefinition of "person" in these provisions was incomplete. Id. While the Court found that such a redefinition subjected the United States to suit and coercive fines, the Court held that it did not subject the federal government to the entire reach of the civil penalties sections, namely punitive fines. Id.

FEDERAL FACILITIES...