Limitations of Sovereign Immunity Under the Clean Water Act: Empowering States To Confront Federal Polluters

This Note considers whether civil penalties that states impose on federal agencies for violations of NPDES permits arise under federal law and thus are covered by the Clean Water Act’s waiver of sovereign immunity – an issue the Supreme Court is scheduled to address during the 1991 term. Part I outlines the history of the Clean Water Act, discussing Supreme Court decisions and statutory amendments that affect the sovereign immunity provision. Part II explains the mechanics of the NPDES state permit process and examines, through analysis of statutory provisions, the degree of control retained by the EPA over individual states operating approved NPDES programs. Part III canvasses judicial treatment of the sovereign immunity question: the Ninth Circuit has ruled that states cannot impose civil penalties on federal agencies because those penalties arise under state law, while the Sixth Circuit has held that states can impose such penalties because they arise under federal law. Finally, Part IV argues that resolution of this question should turn primarily on the statutory language and framework of the Clean Water Act, as opposed to its convoluted legislative history. The Note concludes that, given the extent of federal oversight and the practical implications of the unusual hybrid arrangement, state-imposed civil penalties arise under federal law. Federal agencies, therefore, should be subject to state-imposed penalties for violations of NPDES permits.