This Article focuses on the impact of the Court's Eleventh Amendment jurisprudence on citizen suits authorized under the Clean Water Act (CWA), because that law's cooperative federalism structure is typical of many other environmental laws, and because citizen suits have historically played a critical role in its implementation. The CWA's citizen suit provision (section 505), which specifically incorporates the Eleventh Amendment, has brought on citizen suits the full force and effect of the Court's current state sovereign immunity jurisprudence. The prevailing wisdom is that the Court's state sovereign immunity jurisprudence will not bar CWA citizen suits brought to enforce federal mandates against states in federal court. For the reasons set out in this Article, I am not sure I agree. The structure of the Article is straightforward. The Article briefly discusses the importance of private enforcement of the CWA, the law's structure, and the specific language of section 505. It then summarizes the arguments favoring centralization of regulatory authority in the federal government and shows how arguments favored by devolutionists-those who argue for decentralization of federal regulatory authority to the states-appear to be prevailing to the detriment of strong environmental enforcement. The Article then turns to the key cases that comprise the Court's current view of the Eleventh Amendment. An examination of this case law reveals the compatibility between the themes the devolutionists propound and those the Court articulates in support of its decisions. The Article applies this decentrist jurisprudence, as interpreted by the lower courts, to the CWA to see to what extent it might constrain citizen suits against states, and concludes that it might well limit them. Finally, the Article shows how various suggested ways around the Eleventh Amendment, such as finding an alternative theory for congressional abrogation or grounds for states to waive their immunity, relying on the federal sovereign to prosecute CWA violations against states, or relying on the state courts to vindicate these rights, are wanting in some respect, and thus are poor substitutes for citizen suits. Since the Court has taken upon itself to reinvent the Eleventh Amendment, only the Court can restore the proper balance between the federal government and the states. One can only hope that it will choose to do this before it succeeds in undermining the effectiveness of some very important federal environmental laws.
83 Or. L. Rev. 47-106 (2004)
Scholarly Commons Citation
Babcock, Hope M., "The Effect of the United States Supreme Court's Eleventh Amendment Jurisprudence on Clean Water Act Citizen Suits: Muddied Waters" (2004). Georgetown Law Faculty Publications and Other Works. Paper 37.