Primer On Federal Facility Compliance With Environmental Laws: Where Do We Go From Here?

Look, Buster, don’t bug me with your crap about permits. I’m building nuclear weapons.

Unfortunately, some of the worst [environmental] offenders are our own federal facilities. As President, I will insist that in the future federal agencies meet or exceed environmental standards: The government should live within the laws it imposes on others.

Pollution caused by facilities owned or operated by various federal agencies is a major contributor to the environmental problems facing the United States today. While capable of causing harm identical to pollution from a private facility, federal facility pollution raises legal issues that never arise when a private entity pollutes. For instance, federal and state governments respond swiftly to environmental pollution from private sources. Such action can include injunctive or declaratory relief and possibly civil and criminal penalties.’ Additionally, private polluters cannot
discount a possible citizen’s suit.

When a federal agency is responsible for environmental contamination, however, statutory and constitutional concerns limit or preclude nearly all of the enforcement options named above.’ 0 Vital enforcement tools such as state-imposed civil penalties and criminal sanctions on federal actors implicate sovereign immunity concerns.” Federal level enforcement, that is, enforcement by the Environmental Protection Agency (EPA) through administrative orders or civil actions filed in federal district court, against federal actors raises constitutional concerns such as separation of powers. …

Primer On Federal Facility Compliance With Environmental Laws: Where Do We Go From Here? (PDF – 2.88MB)
By: Nelson D. Cary
Washington and Lee Law Review
March 1, 1993