States are complaining that they could do a better job of fighting pollution if the federal government didn't stop them from going after one of the country's worst polluters - the federal government itself.
When it comes to cleaning up hazardous and radioactive waste, in particular, some of the most blatant compliance problems involve facilities run and managed by federal agencies, mainly the Pentagon and the Department of Energy. Yet these agencies insist that they are above the reach of state and local enforcement.Environmentalists and state environmental officials like to say this just shows the supreme arrogance of Washington: It won't live by the standards it prescribes for others.
In fact, however, states are confronting a rule of law that goes back to the 1200s. It is the principle of sovereign immunity - "the king can do no wrong." And as the U.S. Supreme Court has consistently reaffirmed, it is a rule based less on divine right than on everyday reality: It is awkward to sue a sovereign in his own courts.
Congress can specifically waive the federal right to sovereign immunity. But it is not always clear when Congress has done so - a problem illustrated by the current dispute over RCRA (pronounced rick-rah), the federal Resource Conservation and Recovery Act. RCRA is a 1976 law seeking to ensure that both public and private facilities clean up the hazardous wastes they spew out.
States argue that when a federal installation fails to live up to RCRA, it should be subject to fines just like any private polluter. They claim that Congress waived sovereign immunity in RCRA. The Reagan and Bush administrations have both maintained that no such explicit waiver exists.
The battle is being fought in the king's courts - the federal judiciary. But even there the results have been contradictory. Every judge who reads RCRA seems sure he knows what it means.
"It is hard to imagine clearer language," wrote Judge Gene Carter of the U.S. District Court in Maine, ruling in 1988 that Congress did indeed waive sovereign immunity and allowing the state to fine the Portsmouth Naval Shipyard in Kittery for RCRA violations.
Yet 3,000 miles to the west, in Sacramento, Judge Raul A. Ramirez of the U.S. District Court for eastern California came to the opposite conclusion about the same law in a citizen suit against McClellan Air Force Base. "The learned members of Congress ... can say waiver of sovereign immunity for civil penalties just as easily as any eighth grader writing the same type of legislation," he wrote in a 1986 opinion. "They have not done that."
The White House does raise a compelling point, one that goes to the heart of the federalist debate: Shouldn't Washington have the freedom to impose priorities on the pollution cleanup process? Should it be forced to spend its money on the states with the best lawyers, rather than the ones with the most dangerous sites?
States, for their part, say that without the threat of monetary penalties (and the bad publicity that attends them), the feds are just as reluctant as private polluters to clean up after themselves.
Sovereign immunity, once a powerful symbol of the royal monolith, is now more like the king's last-ditch fortress.