The Effect of the Supreme Court\u27s Eleventh Amendment Jurisprudence on Environmental Citizen Suits: Gotcha!

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court\u27s decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the text of the Amendment. This trend in the Court\u27s application of the Eleventh Amendment to shield states from injured private citizens has potentially ominous implications for citizens seeking to enforce federal environmental laws against states, as Justice Breyer warned in his dissent in College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board. States are important players in the administration of many environmental laws, as recipients of delegated federal regulatory authority. States also own, operate, and construct potentially polluting facilities, such as hazardous waste landfills, hospitals, prisons, airports, roads, and reservoirs that may violate federal law. Thus, they are often targets of citizen suits. An examination of the effect of the Court\u27s sovereign immunity jurisprudence on the private enforcement of environmental laws against states, therefore, is no mere academic exercise. In an atmosphere in which states are assuming a more central place in the administration of federal environmental laws and federal oversight of state performance is lessening, any initiative that insulates states from legal challenge takes on grave significance for environmentalists. If environmental plaintiffs cannot enforce federally mandated standards and programmatic requirements against the states that run these programs, history advises that the states may under-perform. Thus, a reinvigorated Eleventh Amendment applied to citizen suits brought to enforce federal environmental laws can as effectively undercut the impact of those laws as if Congress had amended them to achieve the same result. This paper focuses upon the impact of the Court\u27s Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA) because that law\u27s cooperative federalism structure is typical of many other environmental laws and because citizens suits have historically played a critical role in its implementation. The Act\u27s citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought to bear on citizen suits the full force and effect of the Court\u27s current state sovereign immunity jurisprudence. The prevailing wisdom is that that jurisprudence will not bar CWA citizen suits against states. The author shows that she is not persuaded for the reasons set out in this paper