Enforcement of Environmental Laws at Federal Facilities: Legal Issues

In recent years, EPA and State enforce have stepped up efforts to force compliance by Federal facilities with environmental laws. Such efforts raise delicate issues in the case of EPA as to when one Federal agency can coerce another, and in the case of States as to the balance of power between States and the United States.

Almost all the major Federal environmental statutes contain "Federal facilities provisions" stating unequivocally that Federal facilities are subject to Federal, State, and local environmental requirements just as nongovernmental entities. The issue, then, has not been whether Federal sites must comply, but rather what remedies are available, and to whom, when such facilities do not comply.

EPA enforcement against Federal agencies has been severely limited by the Department of Justice. The Department raises a variety of policy, constitutional, and statutory arguments why intrabranch enforcement may not occur by coercive means--i.e., by administrative orders without the prior consent of the noncomplying agency, or by court actions. For example, the Department has articulated a "unitary executive theory," asserting that under the Constitution, only the President, not EPA unilaterally, may resolve disputes between executive branch agencies.

Justice Department opposition to intra-branch enforcement has put EPA on a very different footing when dealing with Federal as opposed to non-Federal sites. In enforcing at Federal sites, EPA has been largely confined to jawboning--and the hope that its inter-agency compliance agreements and administrative orders will be held enforceable by States and private individuals, through citizen suits, even if not by EPA itself. EPA also has the option of enforcing directly against the private contractors who operate certain Federal facilities.

State and private enforcement against Federal facilities runs up against the doctrine of sovereign immunity. Congress has viewed this immunity in the Federal facilities provisions, but often with qualifications. For example, the waiver in the Resource Conservation and Recovery Act extends only to 'requirements,' provoking endless litigation over whether this term includes State-imposed civil money penalties (most courts say no).

An agency's lack of appropriated funds for discharing environmental duties may also present problems. The solution until funds are obtained may lie in conditional agency and court orders, or tapping the Judgment Fund.

Enforcement against Federal officials personally may also increase in coming years.