Barg Coffin Lewis & Trapp, LLP Articles

April 15, 1996

U.S. Supreme Court Ruling Limits Private Suits Against States

by R. Morgan Gilhuly

A recent U.S. Supreme Court decision involving the Indian Gaming Regulation Act could limit suits by private parties against states in environmental cases for such relief as the recovery of costs for hazardous waste cleanups.

Although the Court's decision in Seminole Tribe of Florida v. Florida involved the right of Indian tribes to sue states, it expressly overruled its own 1989 decision in Pennsylvania v. Union Gas Co., in which it held that a private party could sue a state in federal court for damages under the Comprehensive Environmental Response, Compensation, and Liability Act.

In Union Gas , the Court had held that the U.S. Constitution's Commerce Clause authorized Congress to waive a state's sovereign immunity from suit. In that case, it concluded Congress intended to waive the states' immunity from suit under CERCLA, and that the Commerce Clause provided Congress with authority to enact such a law. Union Gas had sued Pennsylvania under CERCLA to recover costs for cleaning up a Superfund site on a theory that the state's flood-control work near the site had caused a release of hazardous substances.

In Seminole Tribe , the Court applied a two-part test for determining whether a state is immune from suit by a private party. The twin prongs of that test are the following:

the intent of Congress to nullify the immunity of states must be expressly stated in the federal statute; and
Congress must enact the statute pursuant to a valid exercise of constitutional power.

In Seminole Tribe , the Court found the Indian Gaming Regulation Act met the first test, but not the second. The Court noted that in the past it has found only the Fourteenth Amendment and the Commerce Clause provide valid constitutional authority to abrogate the immunity of states. At issue in Seminole Tribe was whether the tribe could sue the state of Florida in federal court for alleged failure to negotiate a state-tribal gaming compact in good faith under the Indian Gaming Regulation Act. The Court held that the tribe could not sue Florida because the Commerce Clause did not empower Congress to abrogate the states' immunity to suit when it enacted the Indian Gaming Regulation Act.

Union Gas Called a Deviation

Although the Court had found in Union Gas that the Commerce Clause authorized Congress to waive states' immunity to suit under CERCLA, the Court in Seminole Tribe called Union Gas wrongly decided and a sharp deviation from precedent.

Seminole Tribe indicates the Supreme Court as currently composed will look only to the Fourteenth Amendment, and possibly to other Civil War-era amendments, for Congressional authority to abrogate the sovereign immunity of states. A private party will still be able to bring a civil rights action under the Fourteenth Amendment after Seminole Tribe . Such actions could include environmental equity suits, such as those based on alleged violations of equal protection rights in the siting of hazardous waste facilities.

Seminole Tribe does not affect Congressional power to regulate state citizens, however. The federal government can still enforce environmental laws through its administrative agencies, and can sue states itself in federal court for failure to comply with those laws. And even where the Eleventh Amendment bars private lawsuits, states can still consent to federal jurisdiction, and Congress can make such consent an imputed condition of federal funding. Seminole Tribe, however, will have a major impact on private parties involved in environmental disputes with states. Unless the state consents to suit in those circumstances, the federal courthouse doors will be closed.

Seminole Tribe of Florida v. Florida, No. 1996 US LEXIS 2165, 1996 WL 134309 (U.S. Sup.Ct., March 27, 1996).

This article was authored with the assistance of Landels Ripley & Diamond, LLP attorney Mary J. Decker.
These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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