David Milton Whalin*

Abstract. The past several years have witnessed a five Justice majority of the Supreme Court enunciating increasingly severe limitations upon Congress’ Article I powers. One effort by these five Justices has emanated from a unique explication of the Eleventh Amendment which began with Seminole Tribe v. Florida in 1996 and was expanded by three decisions announced on June 23, 1999. This Quartet of decisions has significantly limited congressional power. This doctrine, the author contends, represents a revival of the Calhounian nullification doctrine which was a primary intellectual underpinning of southern secession in the last century. [Justice Souter asserts that it is a revival of “industrial due process.”] The article examines the doctrine as explicated by Seminole Tribe and its progeny as it establishes severe limits on Congressional power, enunciates an undefined doctrine of concurrent sovereignty between the states and the federal government, declares that the use of property is not within the ambit of the Due Process Clause of the Fourteenth Amendment, and reallocates the demarcation of the separation of powers by declaring that federal courts will not only ask what Congress did, but also why Congress did it, and whether Congress had sufficient evidentiary support to do it. The article surveys the impact this Quartet of decisions may have upon environmental law by examining the impact upon the jurisdictional reach of the Clean Water Act, whether a [*PG194]state may be held liable as a potentially responsible party under CERCLA by a private party, whether there is a new basis to challenge the National Ambient Air Quality Standards of the Clean Air Act, the implications for takings litigation, and the potential impact upon delegated authority and citizen suits. With the advent of the Calhounian Quartet, the article concludes, one is sailing upon uncharted seas without a compass, much less a global positioning system.


As the 1998–99 term of the Supreme Court ended, the Court issued three decisions1 amplifying its 1996 decision in Seminole Tribe v. Florida.2 This Quartet of decisions redefined the boundaries of the Eleventh Amendment,3 established a penumbral doctrine of state sovereignty, and expanded the scope of judicial review of congressional enactments. The spirit of John C. Calhoun4 appeared to be hovering over the five Justice majority as they fleshed out a new Calhounian5 [*PG195]doctrine which allows states to functionally nullify federally created remedies through the assertion of an Eleventh Amendment and/or sovereign immunity bar as well as establishing new parameters of judicial review which rip asunder congressional prerogatives.

This Article explores the impacts of the Quartet of decisions upon environmental law. First, the Quartet of decisions are examined. Next, the Article clarifies two threshold issues common to all of the environmental law implications of the decisions. Finally, the impact of this Calhounian Quartet upon various aspects of environmental law is explored.

I.  The Calhounian Quartet

A.  A Reverse in Course: Seminole Tribe v. Florida

1.  Background

The Seminole Tribe of Florida, a federally recognized tribe headquartered in Florida, brought an action against the State of Florida and its Governor in U.S. District Court under the Indian Gaming Regulatory Act.6 The plaintiff also brought the action pursuant to 28 U.S.C.  1331 and 1362.7 The defendants sought dismissal on the grounds that the action was barred by the Eleventh Amendment.8 It was not disputed that the state had not consented to be sued.9 The court denied the motion,10 and an interlocutory appeal on this issue was taken to the U.S. Court of Appeals for the Eleventh Circuit.11

The court combined this case with one from Alabama,12 and found that although there was the requisite congressional intent to abrogate a state’s Eleventh Amendment immunity,13 Congress did not possess the power to abrogate based solely upon the Indian Com[*PG196]merce Clause.14 The court also held that Congress had not acted pursuant to the enforcement clause of the Fourteenth Amendment by finding that a protected liberty or property interest was not present.15 The court finally disallowed the action against the Governor under the doctrine of Ex parte Young.16 The Supreme Court granted certiorari to consider the following two questions:

(1) Does the Eleventh Amendment prevent Congress from authorizing suits by Indian tribes against States for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause?; and (2) Does the doctrine of Ex parte Young permit suits against a State’s Governor for prospective injunctive relief to enforce the good-faith bargaining requirement of the Act?17

2.  The Majority Opinion

Five Justices joined the majority opinion which was delivered by the Chief Justice.18 The Court, citing Green v. Mansour,19 first examined whether Congress had abrogated the states’ Eleventh Amendment immunity applying the following two-part test: “first, whether Congress has ‘unequivocally expresse[d] its intent to abrogate the immunity,’ . . . ; and second, whether Congress has acted ‘pursuant to a valid exercise of power . . . .’”20 Although the Indian Gaming Regulatory Act did not expressly state an intent to abrogate, the fact that a state was the only defendant authorized by the statute was sufficient to meet the first part of the inquiry.21

The Court stated that the focus was on the second part of the test: whether there was a “valid exercise of power” by Congress.22 The Seminole Tribe asserted that finding a power to abrogate should be based upon the fact that prospective injunctive relief was being sought rather than monetary damages.23 This argument was rejected rather [*PG197]summarily by citing Cory v. White,24 and Hess v. Port Authority Trans-Hudson Corp.,25 as being dispositive of the issue.26 The Court specifically stated that the type of relief sought was irrelevant to the second part of the test.27 Also unpersuasive was the Seminole Tribe’s assertion that, because the statute granted states a power they did not possess (an ability to regulate Indian gaming in specified circumstances), the abrogation was justified as being the other side of the grant of power.28 The Court used the analogy provided by Atascadero State Hospital v. Scanlon29 that the receipt of federal funds in and of itself did not establish consent to be sued and thus power to abrogate.30

The Court specifically recognized that the Fourteenth Amendment31 provided a basis for abrogation because Section 1 limited the powers of the states and Section 5 specifically provided Congress with enforcement authority.32 Since the Seminole Tribe, however, did not assert that the statute in question was enacted pursuant to Section 5 of the Fourteenth Amendment, the majority did not consider this issue further.33

The focus of the Court’s inquiry therefore was limited to whether Congress had authority to abrogate pursuant to the Indian Commerce Clause.34 The Court began by stating that under the rationale of Pennsylvania v. Union Gas Co.35 there was no reason to distinguish between the Interstate Commerce Clause36 and the Indian Commerce Clause.37 The Court viewed the Eleventh Amendment as a limitation upon the jurisdictional grant of power in Article III of the Constitution which could be abrogated by the Fourteenth Amendment.38 The question, then, was whether Union Gas provided a rationale for con[*PG198]gressional abrogation pursuant to powers elucidated in Article I of the Constitution without the additional authority of the Fourteenth Amendment.39

The Court began by stating that Union Gas was an anomaly.40 The Court found that the Fourteenth Amendment, because it was adopted after the Eleventh Amendment, acted as a limitation upon the limitation contained in the Eleventh Amendment and altered the pre-existing balance between state and federal power.41 The Court then found that since the rationale of Union Gas was based solely upon congressional authority found in Article I, there was no authority to abrogate a state’s Eleventh Amendment immunity from suit in this instance.42 The majority continued to refer to Union Gas as a plurality decision and held that considerations of stare decisis were inapposite.43

The Court then proceeded to explicitly overrule Union Gas.44 To state this holding rather simply, the Court held that the Eleventh Amendment modified all previously adopted provisions to the extent that they provide a basis for Congress to provide Article III remedies for private parties against a state. Put another way, the Eleventh Amendment trumps all previously adopted constitutional provisions within its purview. The Court appeared to endorse a state’s ability to waive its immunity through participation in a legitimately regulated activity which was indistinguishable from that conducted in the private sector as explicated in Parden v. Terminal Railway.45 The Court’s holding was sweeping: even when Congress has exclusive authority over an area, this authority is restricted by the Eleventh Amendment.46 In a footnote, the Court dismissed as “misleadingly overbroad” Justice Stevens’ concern that a right without a remedy was being created in the areas of bankruptcy, copyright, and antitrust.”47 The action against the State of Florida was dismissed for lack of Article III jurisdiction.48

The final issue before the Court was whether there was jurisdiction to enforce the statute against the Governor notwithstanding the [*PG199]Eleventh Amendment.49 The Seminole Tribe was seeking prospective injunctive relief under the doctrine of Ex parte Young50 to end a “continuing violation of federal law” by requiring the Governor to negotiate pursuant to the statute.51 The Court found that, since the statutory remedial scheme was less stringent than that in Ex parte Young, there was no congressional intent to provide this remedy as demonstrated by the extensive remedial scheme in the statute at issue.52 The Ex parte Young remedy was unavailable notwithstanding the fact that the Court had just held the lesser congressional remedy unconstitutional. If a lesser remedy exists, Ex parte Young is not available.53

3.  The Dissents

Two dissents, one by Justice Stevens54 and the other by Justice Souter joined by Justices Ginsburg and Breyer,55 vigorously took issue with the majority decision. Justice Stevens found that there was cause for debate as to whether

Congress has the power to ensure that such a cause of action may be enforced in federal court by a citizen of another State or a foreign citizen. There can be no serious debate, however, over whether Congress has the power to ensure that such a cause of action may be brought by a citizen of the State being sued.56

After an extensive examination of history and previous decisions, Justice Stevens stated that he would limit the Eleventh Amendment bar to its literal terms and find that Congress has the authority to make the federal courts available to remedy violations of federal law by a state or its officials.57 Justice Souter found the majority rationale to be [*PG200]“fundamentally mistaken” and examined the origins of the Eleventh Amendment at length.58 The gravamen of Souter’s dissent was that the Eleventh Amendment “did not affect federal-question jurisdiction.”59 Justice Souter concluded that the majority had abdicated its constitutional responsibilities.60

B.  June 23, 1999, Round One: Alden v. Maine

1.  Background

Mr. Alden and other probation officers employed by the State of Maine commenced an action in federal court pursuant to the Fair Labor Standards Act (FLSA)61 seeking overtime pay and prospective relief.62 The action was pending when Seminole Tribe was decided and the complaint was dismissed on the basis of that decision.63 Mr. Alden and the others filed a complaint in state court seeking the same relief pursuant to the FLSA.64 The action was dismissed as being barred by the Eleventh Amendment and an appeal was taken to the Supreme Judicial Court (SJC) of Maine.65 Maine’s highest court found that Maine had not consented to be sued in its own courts by private parties even when the claim “derives from federal law.”66 The Maine SJC further concluded that the Eleventh Amendment precluded Congress from making an unconsenting state subject to suit in its own courts pursuant solely to Article I powers.67 The dissent would have found that there was a valid enactment under the Interstate Commerce and Supremacy Clauses.68

[*PG201]2.  The Majority Opinion

Justice Kennedy’s holding in the Court’s majority opinion was uncomplicated: Congress does not have Article I power to subject nonconsenting states to suits for damages in state courts, and Maine had not consented in this instance.69 The specific constitutional basis for the holding, however, was ethereal, as exemplified by the following excerpt:

[T]he sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.70

The Court went on to state that this was implicitly confirmed by the Tenth Amendment.71 This state sovereignty was preserved in two ways:

First, it reserves to them a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status.

. . . .

Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation’s rejection of “the concept of a central government that would act upon and through the States” in favor of “a system in which the State and Federal Governments would exercise concurrent authority over the people . . . .”72

[*PG202]The Eleventh Amendment did not “redefine” federal judicial power but only reconfirmed a state’s sovereign immunity from suit without its consent.73

The Court did not define the issue as the primacy of “substantive federal law,” but rather as the implementation of a statute consistent with state sovereignty.74 The Court appeared to say that Congress may enact laws pursuant to one of the enumerated powers binding the states, but Congress cannot provide a means of enforcing any private rights created by such laws absent a state’s consent. This creates a right without a private party remedy. This formulation, however, does not appear to limit the enforcement authority by the United States or by another state.75

In reaching its conclusion, the Court examined several previous decisions76 and determined that the question of whether Congress has power to abrogate sovereign immunity within a state’s courts was one of first impression.77 The Court found that a state’s sovereign immunity within its own courts was absolute, save for the Ex parte Young78 exception:

The exception to our sovereign immunity doctrine recognized in Ex parte Young is based in part on the premise that [*PG203]sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land.79

A congressional power to allow suits against a state in its own courts was found too offensive to the states.80 Congress thus has no power to abrogate immunity from suit by a private party against a state in its own courts.81

The Court then asserted that this does not give a state a license to disregard “valid” federal law or the Constitution and propounded two limits on a state’s sovereign immunity.82 The first limit involves a state that consents to be sued.83 By ratifying the Constitution, states have consented to be sued by other states and/or by the Federal Government.84 For example, Congress may authorize suits by private parties against nonconsenting states pursuant to the Fourteenth Amendment, Section 5.85 The second limit is that suits are not barred against “lesser entities” such as municipal corporations or an entity which is not an “arm of the state.”86 Thus, some suits against state officers may not be barred.87 Money damages also may be available against a state officer so long as the funds do not come from the state’s treasury.88

Finally, the Court appeared to leave open a potential challenge to a state’s assertion of sovereign immunity on the basis of a denial of equal protection of the laws:

[T]here is no evidence that the State has manipulated its immunity in a systematic fashion to discriminate against fed[*PG204]eral causes of action. To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit.89

The majority opinion contained no guidance as to whether this assertion has any practical substance.

The Court maintained that it was not altering congressional authority to bind states by “substantive rules of federal law.”90 Thus, it may be inferred that the FLSA’s application to the states remains, but an aggrieved party has no individual remedy. The Court noted that the United States may still bring an enforcement action91 against a state for violating federal law, but this assertion ignores the practical, political reality that Executive Branch officials make political judgements about whether to bring actions against states. If another state or the Executive Branch is unwilling to vindicate valid federal rights, there will clearly be rights without remedies.

3.  The Dissent

In dissent, Justice Souter vigorously disputed the proposition that sovereign immunity existed beyond the explicit terms of the Eleventh Amendment:92

This Court has swung back and forth with regrettable disruption on the enforceability of the FLSA against the States, but if the present majority had a defensible position one could at least accept its decision with an expectation of stability ahead. As it is, any such expectation would be naive. The resemblance of today’s state sovereign immunity to the Lochner era’s industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with [*PG205]the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court’s latest essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.93

C.  June 23, 1999, Round Two: College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board

1.  Background

College Savings Bank marketed a patented deposit contract to satisfy future college expenses.94 In this action, College Savings Bank alleged violations of  43(a) of the Lanham Act95 as well as the common law tort of unfair competition.96 After Seminole Tribe, Florida Prepaid moved to dismiss both complaints as being barred by the Eleventh Amendment.97 The district court found that the 1992 congressional amendments contained an explicit abrogation of Eleventh Amendment immunity.98 The court also found that Florida Prepaid qualified to assert the Eleventh Amendment bar as an “arm of the state”99 and that Florida Prepaid had not “constructively waived” its immunity.100 The second inquiry was whether the Lanham Act amendments were enacted pursuant to the Section 5 enforcement clause of the Fourteenth Amendment.101 The court found that since there was no protected property interest at stake, there was no valid constitutional basis for congressional abrogation of the Eleventh Amendment.102 The Court of Appeals for the Third Circuit affirmed [*PG206]the lower court decision.103 The Supreme Court granted certiorari to consider whether there was a valid abrogation of the Eleventh Amendment, and also whether a state waives its immunity automatically when it engages in post-enactment regulated activities.104

2.  The Majority Opinion

Justice Scalia delivered the opinion105 for the same five Justices who composed the majority in Seminole Tribe and Alden and he recited the statutory provisions which explicitly abrogated not only Eleventh Amendment immunity but also any other doctrine of sovereign immunity.106 The Court first focused on whether there was a deprivation of property within the due process ambit of Section 1 of the Fourteenth Amendment.107 The question was whether “(1) a right to be free from a business competitor’s false advertising about its own product, and (2) a more generalized right to be secure in one’s business interests” was property under Section 1 of the Fourteenth Amendment.108 The Court defined protected property as including “the right to exclude others.”109 The Court conceded that other provisions of the Lanham Act—the trademark infringement provisions—created protected property because of the right to exclude others from use.110 The Court summarily found that the false advertising provisions at issue “bear no relationship to any right to exclude [*PG207]. . . .”111 The Court also held that although business assets were protected property, the activity of doing business and making a profit were not business assets and thus were not protected property interests.112

Since the Court found there was no valid abrogation of immunity under the Fourteenth Amendment, it then turned to whether there was a voluntary waiver by Florida Prepaid.113 There was no question that Florida Prepaid had not expressly consented to be sued or that it had invoked the jurisdiction of the court.114 The gravamen of the issue was whether by voluntarily engaging in an activity virtually indistinguishable from private commercial activities and with the knowledge of the strictures of the Lanham Act, Florida Prepaid had impliedly or constructively waived its immunity.115 The Court then examined what it characterized as the “constructive waiver doctrine”116 and expressly overruled it.117 The Court also examined whether Congress may validly condition a state’s participation in proprietary or market activities upon waiving its sovereign immunity.118 The Court did not find apposite the “market participation” decisions pursuant to the dormant commerce clause doctrine.119 The Court stated that conditioning the approval of an interstate compact upon a waiver of immunity was permissible.120 It also found permissible the condition[*PG208]ing of the receipt of funds upon agreeing to a waiver but included the qualification that the financial inducement, if sufficiently substantial, could become coercive to the point of being prohibited.121 The Court effectively proscribed implied or constructive waiver when it stated:

In any event, we think where the constitutionally guaranteed protection of the States’ sovereign immunity is involved, the point of coercion is automatically passed—and the voluntariness of waiver destroyed—when what is attached to the refusal to waive is the exclusion of the State from otherwise lawful activity.122

3.  The Dissents

In a brief dissent, Justice Stevens asserted that goodwill, a widely recognized form of property, is the “substantive equivalent” of “the activity of doing business or the activity of making a profit.”123 He went on: “A State’s deliberate destruction of a going business is surely a deprivation of property within the meaning of the Due Process Clause.”124 Justice Stevens also recognized that the majority should have focused on whether there was a reasonable basis to abrogate to prevent violations of the law rather than creating what was in effect a presumption of congressional invalidity.125

Justice Breyer, joined by all the dissenters, argued that it was permissible for Congress to condition a state’s participation in a “federally regulated activity” upon waiving its immunity from private suit in federal courts.126 He asserted that Seminole Tribe and its progeny [*PG209]threaten the ability to enact economic legislation vital to the realities of the twenty-first century.127 If Congress has the power to create “substantive rights,” Breyer reasoned, it must also have the “subsidiary power” to create private remedies to enforce those rights.128 Justice Breyer specifically asserted that the ability to allow a private remedy against a state as a water polluter was now quite questionable.129 He surmised that Congress may need to create an “enforcement bureaucracy” or add conditions to the receipt of federal funds to accomplish the purpose.130

D.  June 23, 1999, Round Three: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank

1.  Background

The background to this decision was partially described above. The district court found that Congress explicitly intended to abrogate a state’s immunity under the Patent and Plant Variety Protection Remedy Clarification Act.131 The question was whether the provision at issue was a protected property interest within the ambit of the Fourteenth Amendment,132 and the court began with the unremarkable assertions that a patent was property133 and that the unlicensed use of a patent was a taking of property.134 Florida Prepaid asserted that patent infringement was not within the ambit of the Fourteenth Amendment.135 The court, however, concluded that a patent was Fourteenth Amendment property and that Congress had the power pursuant to the Section 5 enforcement clause to waive a state’s immunity for the purposes of a private remedy for patent infringement.136 The motion to dismiss on the grounds that the action was [*PG210]barred by the Eleventh Amendment was denied.137 After the court of appeals affirmed the lower court’s decision, the U.S. Supreme Court granted Certiorari to determine if there was a valid enactment to enforce the Fourteenth Amendment’s due process clause.138

2.  The Majority Opinion

The Chief Justice delivered the opinion for the same five Justice majority as the other three cases of the Quartet.139 There was no dispute that Florida Prepaid had not expressly consented to be sued,140 and since College Savings had decided the issue of implied or constructive consent, the sole issue was whether there was a valid congressional abrogation pursuant to the Fourteenth Amendment.141 The Court found that Congress intended to explicitly abrogate pursuant to the Fourteenth Amendment.142

The Court stated that the test was whether the statute at issue was an “appropriate” means of enforcement under City of Boerne v. Flores.143 It found that “for Congress to invoke section five, it must identify conduct transgressing the Fourteenth Amendment’s substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct.”144 The offensive conduct was characterized as patent infringement by states and the use of Eleventh Amendment immunity to bar remediation.145 The Court asserted that the legislative history did not reveal any pattern of patent infringement by the states.146 It must be noted that the Court was not examining the legislative history to determine the meaning of the statutory language (i.e., legislative intent). Rather, the Court was examining the basis upon which Congress made the determination that a statute was needed to determine, in the Court’s opinion, whether that basis was [*PG211]“appropriate.”147 In other words, it was not inquiring into what Congress did, but why it did it, a surprising and radical intrusion by the allegedly co-equal judicial branch into a core legislative function.148

The Court asserted that “a State’s infringement of a patent, through interfering with a patent owner’s right to exclude others, does not by itself violate the Constitution.”149 The issue is whether a state provides either no remedy or inadequate remedies.150 It found significant that Congress barely explored the adequacy of state remedies.151 Negligent conduct by a state which deprives a private party of property “does not violate the Due Process Clause of the Fourteenth Amendment.”152 Congress, the Court continued, had not limited the relief to only those situations where a state’s remedies were inadequate.153 The Court concluded:

The statute’s apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under the regime. These are proper Article I concerns, but that Article does not give Congress the power to enact such legislation after Seminole Tribe.154

3.  The Dissent

Justice Stevens delivered the dissent which was joined, again, by Justices Souter, Ginsburg, and Breyer.155 He noted that for 200 years [*PG212]patent infringement issues had been the exclusive prerogative of the federal courts.156 After examining the history of patent infringement and the constant congressional effort to insure national uniformity, the dissent concluded that it was appropriate for Congress to “close a potential loophole” and enact legislation to insure a national uniform scheme.157 After examining the hearing records and other congressional documents,158 the dissent found a more than adequate factual basis for the legislation at issue.159

E.  Quartet Conclusions

This Quartet of decisions has significantly affected the understanding of the role of states within the Constitutional scheme.160 A state, or an arm of a state, is now immune from suit without its explicit consent unless Congress has explicitly abrogated a state’s immunity pursuant to the Fourteenth Amendment. The abrogation must be supported by evidence on the record which demonstrates extensive evil to be corrected. The courts will now scrutinize congressional action to determine not only what Congress meant in a statute but also why it made the decision. There is now a residual state sovereignty beyond the reach of Congress except, perhaps, to remedy Fourteenth Amendment violations. The use of an asset to do business is not within the parameters of the Section 1 Due Process Clause of the Fourteenth Amendment. The remedy of Ex parte Young is not available to invoke the jurisdiction of the federal courts when Congress has prescribed an extensive remedial scheme even if that scheme is found to be unconstitutional. It appears that Congress cannot condition a state’s participation in an activity upon its agreement to waive Eleventh Amendment immunity except for an interstate compact or upon receipt of federal funds, but the latter cannot be coercive.

[*PG213]II.  Threshold Issues

This section explores certain issues that are common to the examination of the impact of these decisions on various aspects of environmental law. These were not issues in the Quartet before the Court, but they appear to be integral to an understanding of the impact to be discussed in the next section. It is reasonable to assume that the Quartet did not alter, for the most part, current law in each of these areas. Where changes appear to have occurred, they are noted.

A.  State or Arm of the State

In order to invoke the Quartet as a bar, the defendant must qualify as a state or an arm of a state. None of the Quartet appear to have altered current judicial doctrine on this issue. Recent Supreme Court decisions generally have considered whether an entity established by an interstate compact is an arm of the state, but decisions in the lower federal courts have been more wide-ranging.

1.  Supreme Court Parameters

There is little question that counties and municipal corporations are not within the ambit of the Eleventh Amendment.161 Examining whether a local school board was an arm of the state or more akin to a municipal corporation, the Court held that the answer depended in part upon the nature of the entity under a state’s law.162 The Court considered several “significant” factors: that the school board was one of many similar entities; that it received a significant portion of money and some guidance from the state board of education; that the local school board, however, had “extensive” powers to issue bonds, albeit authorized by state law; and, that the school board could impose taxes authorized by state law but the decision to actually levy was the local board’s.163 Balancing all these factors, the Court held that the “school board was more like a city or a county than it [was] an arm of the state.”164

[*PG214] Exercising a “slice of state power” is not sufficient to qualify a governmental entity as an arm of a state.165 The size of the “slice” is not specified, but being a direct liability of a state’s treasury is considered very significant.166 In the instance of an entity created by interstate compact, if the entity acts more like a county or municipality, then this factor weighs towards it not being an arm of the state.167 If the primary source of funds for an entity is local government, then it probably is not an arm of the state.168 Landuse planning is traditionally a local function and may be indicative that an entity is not an arm of the state.169 The fact that a state cannot veto rules made by an entity is also indicative that the entity is not an arm of the state.170 Finally, that a state is “forced” to sue an entity to impose its will, is also indicative that the entity is not an arm of the state.171

Regarding the formation of an interstate compact, it appears that there must be an explicit intent to create an entity within the ambit of the arm of the state doctrine.172 The Court searches for such an intent through fact-specific inquiries. That a governor may veto the actions of members of an interstate body is not dispositive.173 Even the fact that the salaries and administrative expenses of the entities may come from the participating states if revenues are insufficient is not dispositive174 when the states have provided no authority to pledge their credit, to draw upon tax revenue, to impose any charge upon either state, or to render either state subject to liability for any judgment rendered against the interstate entity.175 The fact that implementing legislation by the participating states does not refer to the interstate entity as a “state agency” also indicates that the entity is not an arm of [*PG215]the state,176 but this is mitigated by repeated state court references to the entity as a state agency.177 Even if the entity’s functions are those traditionally performed by both state and municipal governments, this does not resolve the issue simply because some of the functions are “state-like.”178 The significant factor in such a case, however, is the absence of state financial responsibility for the entity and the fact that for many years the entity has received no funds from either state.179 Access to a state’s treasury, it may be concluded, is a significant factor so long as that access is not discretionary.180 Finally, the Court has recognized that a state’s legal liability for judgements against a state university system is dispositive for Eleventh Amendment purposes, notwithstanding a liability insurance policy to indemnify a state’s treasury.181

2.  The Courts of Appeal

The Second Circuit appears to have narrowed the ambit of the arm-of-the-state doctrine at least as far as public universities are concerned.182 It has identified the two most important factors as “the extent to which the state would be responsible for satisfying any judgement,” and “the degree of supervision exercised by the state” over the entity.183 The Second Circuit distinguished district court decisions that rested upon the obligation of the state to indemnify individuals affiliated with the entity from the issue of whether the state was required to satisfy any judgements against the entity.184

The Third Circuit, considering whether the administrative and policy making functions of a district attorney qualify as an arm of the [*PG216]state,185 explicated a three factor inquiry: “(1) the source of the funding—i.e., whether payment of any judgement would come from a state’s treasury, (2) the status of the agency/individual under state law, and (3) the degree of autonomy from state regulation.”186 The party asserting immunity as an arm of the state has the burden of establishing these factors.187 Whether a function is typically a state or a local function is part of the second-factor inquiry.188 The most important factor is the liability of a state’s treasury—as liability decreases it becomes less likely that an entity meets this factor.189 The second factor requires determining whether state law treats the entity as a surrogate of the state or as independent.190 It appears that discretionary decisions made by an entity pursuant to state law do not meet the second factor.191 Considering the autonomy factor, the Third Circuit found that a limited ability of a state “after cumbersome proceedings” to supersede an entity was not sufficient.192 General supervisory control of a state appellate court over all who appear in court including the entity at issue was also insufficient to establish a lack of autonomy.193 The three factors are to be considered together when making a determination as to whether an entity has established itself as an arm of the state.194 Applying this balancing test, the Third Circuit held that in the instant case the office of the district attorney did not meet the test as an arm of the state.195

Considering whether a university and its governing board qualified as an arm of the state,196 the Fifth Circuit propounded a six-factor test:

(1) whether the state statutes and case law characterize the agency as an arm of the state; (2) the source of the funds for the entity; (3) the degree of local autonomy the entity enjoys; (4) whether the entity is concerned primarily with local, [*PG217]as opposed to state-wide problems; (5) whether the entity has authority to sue and be sued in its own name; [and] (6) whether the entity has the right to hold and use property.197

After examining each factor, the court found that the test was met, notwithstanding that the university did not meet factors five and six.198

Subsequently, the court utilized the same six-factor test described above199 when it considered whether a state board regulating a profession was an arm of the state.200 The entity appeared to be part of the executive branch of the state.201 The board, however, was financially independent of the state’s treasury.202 The board regulated an activity on a state-wide, rather than local, basis.203 Although the board adopted rules pursuant to state statutes, no part of the state had supervisory authority over the content of those rules.204 The board’s ability to sue and be sued was found to be quite limited and ambiguous.205 The ability of the board to hold and use property was found to be too ambiguous to be helpful.206 The court found persuasive the broad grant of state power, the composition of board members who serve at the pleasure of the governor, and the board’s state-wide jurisdiction in holding that the board was an arm of the state.207

The Fifth Circuit also examined the same six factors and found that an expressway commission was not an arm of the state.208 The fact that at some future point the property could revert to the state was found to be inconsequential.209 The commission financed its own operations and only received state funds for the retirement of revenue bonds which were not obligations of the state.210 There was no other [*PG218]activity which could be construed as imposing liability on the state.211 There, the balance was found to be against finding this commission to be an arm of the state.212 The Sixth Circuit also recently considered this issue. In one case an eye bank sought to invoke immunity based upon its operation under state law.213 The court found it dispositive that the eye bank was a private nonprofit corporation and that the state had no financial involvement and that the state treasury had no liability for any judgement.214

The Ninth Circuit has considered various iterations of this issue under a five-factor test:215

[1] whether a money judgement would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity.216

The district court only considered the first factor and the court found it sufficient in this case to hold that a university was an arm of the state.217

Recently, the Tenth Circuit also reexamined the issue extensively and promulgated its own “rule.”218 First, the court concluded that a federal court may give deference to a state court rationale as to whether an entity is an arm of the state, but state court rulings are not dispositive.219 The court then set forth the factors to be considered: (1) state control of the entity;220 (2) designation under state law;221 (3) state court interpretations of its law;222 (4) fiscal independence (or lack thereof) from the state;223 and, (5) state treasury liability for any [*PG219]judgements.224 These factors are to be weighed together with more weight given to the liability of a state’s treasury.225 The Tenth Circuit also stated that it would raise the issue of an Eleventh Amendment bar sua sponte because the issue went to the Article III power to adjudicate.226

The Tenth Circuit found that the entity was an arm of the state,227 but then went on to find that, notwithstanding the fact that Utah had appeared in court and never raised the Eleventh Amendment bar, there was no waiver (i.e., consent) because there was nothing in the statutes of Utah indicating an express consent to be sued.228 This holding explicitly prevented officials of a state from making a policy decision to submit to the jurisdiction of the federal courts without establishing a basis for that decision either in the state’s constitution or statutes.229 The court also found that while a county exists at the “whim” of the state, this is not sufficient to qualify it as an arm of the state.230

B.  The Ex parte Young Doctrine

The Ex parte Young doctrine provides a means of obtaining prospective relief notwithstanding the Eleventh Amendment bar. The classic components of this doctrine have been stated as follows:

First, federal courts have no jurisdiction to entertain a suit that seeks to require the state official to comply with state law—only allegations of federal law are sufficient . . . .231 Second, the doctrine will not go so far as to allow federal ju[*PG220]risdiction over a suit that seeks to address past wrongs–only ongoing violations are covered.232 Third, the doctrine does not allow a federal court to declare past state conduct unconstitutional when the only purpose for such a declaratory judgement would be its res judicata effect in a subsequent state-court proceeding; such a declaration would have the effect of adjudicating the liability issues in a damages action against the state even though a direct federal suit for damages would be barred by the Eleventh Amendment.233 And fourth, although the doctrine will allow injunctive relief that might have some ancillary effect on a state treasury, it does not allow an award for monetary relief that is the practical equivalent of money damages, even if this relief is characterized as equitable.234

Seminole Tribe, discussed above, added a new qualification to this doctrine: if Congress enacts a statutory scheme more limited than this doctrine, then the statutory scheme prevails even if it is found unconstitutional.235 Thus, when a taxpayer alleges that a state tax violates the Fourteenth Amendment’s equal protection and due process clauses as a taking of property, the federal court door is closed because of the lesser remedy of the Tax Injunction Act.236 It further appears that when a specific federal statute (the lesser remedy) is found to be constitutionally infirm as a result of College Savings, a more general federal statute is not available to provide jurisdiction.237

[*PG221] The other additional qualification which closes the federal court door arises when the injunctive relief sought implicates special sovereignty interests.238 In this instance the issue concerned title to land.239 In another case, a plaintiff sought to eliminate a public access road to Lake Michigan from a platted lot.240 In such a dispute, state law required joinder of the state because of laws governing access to navigable waters and public trust waters.241 An unconstitutional taking was part of the allegations in the complaint.242 The court found that the state’s interests at issue implicated special sovereignty interests.243 The court also found that the state’s interests were so inextricably bound into the complaint that the action could not proceed without the state’s presence.244 Thus, the entire action was dismissed.245 A state’s tax collection system also has been held to implicate a special sovereign interest.246 A state’s property interest in future lease payments, however, has been found to be insufficient.247 A medical school’s admission policy also does not implicate such interests.248 The unanswered question is whether Alden and the other cases decided on June 23, 1999, have extended these attributes of special sovereignty,249 but the expansive language in these cases gives rise to the inference that it has widened.

[*PG222]III.  Implications for Environmental Law

A.  The Jurisdictional Reach of the Clean Water Act

The Clean Water Act (CWA)250 is the principal means of regulating the pollution of surface water nationwide. The CWA’s jurisdictional reach is determined by the definition of “navigable waters” as meaning “waters of the United States.”251 The principal decision interpreting the meaning of this term is United States v. Riverside Bayview Homes, Inc.252 This decision stated that waters of the United States included adjacent wetlands253 as well as waters within the ambit of the Commerce Clause.254 The expansive determination of the legislative intent of this term is regarded as dicta, because the land at issue was adjacent to a navigable waterway and the question was whether “waters of the United States” included the wetlands adjacent to this navigable waterway.255 The expansive and somewhat vague language in the decision, however, has been subsequently interpreted to mean that waters not traditionally considered navigable—“virtually all surface waters in the country”—are included within the definition.256 This may also be considered dicta because the holding concerned whether the CWA savings clause preserved certain state actions.257 It also may be asserted that this was not dicta because if the waters were not within the ambit of the CWA, the issue of preemption need not have been considered. The latter assertion is not entirely persuasive because the waterway at issue was Lake Champlain.258 There is very strong support, in any event, for the proposition that Congress intended that any waterway draining into a navigable water, including adjacent wetlands, was within the statutory coverage of the CWA.259 The Supreme Court, however, has not spoken to the issue of how far up the waterway chain Congress’ constitutional authority exists.

The question in light of the Quartet is whether Congress has the authority to extend jurisdiction as far as it did in the CWA. Is there a [*PG223]point where a water of the United States moves beyond the authority of Congress and becomes a sovereign part of the state? It should be remembered that Alden propounded a doctrine of “fundamental aspect[s] of . . . sovereignty” that states had before the ratification of the Constitution and were not altered by that document or any amendments to it.260 The Court went on to explicate a system which reserved sovereignty to the states261 and propounded the system of concurrent jurisdiction.262 Alden placed a limit on the Commerce Clause power of Congress.263 The nature of that limit remains unclear.264 Is there some point where state sovereignty trumps congressional authority? Is there a point where a nonnavigable tributary moves from being subject to congressional pre-eminence into a state’s jurisdiction? It may be possible to infer from Coeur d’Alene that such a point exists. In Coeur d’Alene, the Court found that a state’s jurisdiction over submerged lands implicated an essential attribute of sovereignty.265 It is not much of a stretch to assert that at some point the dominant federal interest in nonnavigable waters ends and that of the states begins. If that line exists, where is it drawn?

A second question is whether this new doctrine of state sovereignty will inhibit the power of the federal government to regulate ground water. Does this revived doctrine of state sovereignty preclude federal efforts to prevent the pollution of ground water? The implications of such a restriction upon the CWA should be obvious: preventing the application of the CWA to pollutants entering waters under state sovereignty would be a severe blow to environmental protection across the nation.

B.  May a State Be Held Liable as a CERCLA Potentially Responsible Party by a Private Party?

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)266 provides that a state may be held liable to private parties in two circumstances: damages resulting from “gross [*PG224]negligence or intentional misconduct” when attempting respond to an emergency or threatened release of a hazardous substance so long as the facility is not state owned,267and where a state is deemed to be an “owner or operator”268 or a person269 within the reach of CERCLA liability.270 The statute specifically seeks to segregate those instances when a state is acting as a governmental entity (responding to an emergency or threat to public health and safety) and those instances when it is no different than a private party subject to liability.271 In the instance of citizens suits, a state retains its Eleventh Amendment immunity.272 For the purposes of this discussion, it will be assumed that the state, or an arm of the state,273 has not expressly consented to be sued and that it has raised a defense of the Eleventh Amendment as a bar to liability because the relief sought is money damages.

The threshold question is whether there is an express intent of Congress to abrogate this immunity.274 Unlike the statutes at issue in College Savings and Florida Prepaid, there is no explicit intent to abrogate.275 As noted above, one section explicitly states that the Eleventh Amendment is not waived.276 Another section limits liability where the entity is exercising traditional state functions.277 The section at issue, where a state or arm of the state may be found liable as a potentially responsible party, explicitly seeks to make such entities liable but does not state that immunity is waived.278 This would appear to be sufficiently similar to the situation described in Seminole Tribe279 to meet the threshold question.

The issue then becomes whether CERCLA was enacted pursuant to a valid congressional power pursuant to the Fourteenth Amendment, which is the only basis available.280 The interest being asserted [*PG225]is a federally-created accrued cause of action. It is well established that a state-created accrued cause of action is property within the ambit of the Fourteenth Amendment.281 A unanimous Court reaffirmed this principle as recently as 1996.282 The property which was sought to be protected in College Savings and Florida Prepaid was not characterized by the Court or the litigants as an accrued cause of action.283 It must be stated, however, that the decisions just cited concerned state-created accrued causes of action.284 If the Supremacy Clause is to have any meaning, it follows that federally, statutorily created accrued causes of action are property within the ambit of the Fourteenth Amendment.

The first potentially pertinent part of the Fourteenth Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”285 There is recent evidence that this dormant clause may be receiving new life.286 Whether this presages bringing the protection of property within the ambit of this clause will be a cause for speculation and litigation. The more pertinent part is found in clause three which states: “nor shall any state deprive any person of life, liberty or property, without due process of law.”287 A “person” includes natural persons as well as the unnatural, such as corporations.288 CERCLA, as was the case in College Savings and Florida Prepaid, vests exclusive original jurisdiction in the courts of the United States.289 A state’s assertion of [*PG226]the Eleventh Amendment bar serves to deprive a private party of the accrued cause of action because no forum is open to the party.

The Quartet decision most on point appears to be Florida Prepaid, where the Court held that a violation occurs “only where the State provides no remedy, or only inadequate remedies . . . .” 290 Functionally, the statute at issue in Florida Prepaid was identical to the provision in CERCLA because the federal courts were vested with exclusive jurisdiction291 to remedy property deprivations by states.292 This should be the end of the inquiry, but the Court formulated a new inquiry into the basis of the congressional determination.293 Thus, it would be necessary to examine the congressional hearing records to determine whether states generated CERCLA-covered waste, and whether states asserted the Eleventh Amendment as a bar to recovery by private parties. Given the extensive hearing record for CERCLA,294 the first part of the question should be easy to establish upon any reasonable interpretation.295 It is difficult to imagine, however, how the hearing records would be able to provide the evidentiary basis for the second part of the question just propounded. How can there be testimony that a state is asserting a bar to a statute which has not been enacted? It is improbable that it would be possible to overcome the hurdle set forth in Florida Prepaid.296

Still, none of the Quartet prevents a suit by the United States. Indeed, Alden notes that the United States has the power to enforce the Fair Labor Standards Act against a state.297 CERCLA also vests en[*PG227]forcement authority in the United States where a state engages in prohibited behavior.298 A private party seeking to hold liable under CERCLA an entity which can plead the Eleventh Amendment may utilize CERCLA’s Citizen Suit provisions299 by suing the United States to compel enforcement. Such an approach would have obvious shortcomings.300

C.  Is There a New Basis to Challenge the Clean Air Act’s National Ambient Air Quality Standards?

The Clean Air Act’s (CAA)301 effectiveness is largely based on the process of setting national ambient air quality standards (NAAQS)302 pursuant to CAA sections 108 and 109.303 In the development of the NAAQS, the effects of pollution on “public health or welfare” are the major considerations.304 Furthermore, the risk to ecosystems “may” be considered.305 The overriding consideration in setting the primary NAAQS is protecting public health after allowing for an adequate margin of safety.306 Secondary NAAQS standards are promulgated to protect the “public welfare.”307

The setting of these standards is supposed to focus solely on public health; economic and technical feasibility are irrelevant.308 The [*PG228]term welfare includes “effects on economic values”309 but this has been held to refer only to the economic costs of pollution.310 Congress has therefore been seen to have made a deliberate choice to preclude any consideration of economic and technological feasibility in setting the NAAQS standards.311

The CAA may now be open to challenge under the new review formulation set forth in Florida Prepaid. The preclusion of consideration of economic or technological feasibility was a policy choice by Congress that was not subject to review because it was within its constitutional powers under Article I.312 The setting of the  109313 NAAQS standards are at the center of the CAA statutory scheme.314

In Florida Prepaid, the Court found that Congress acted pursuant to a valid constitutional basis,315 but that the facts considered by Congress were insufficient to support the policy choice made by Congress.316 It must be noted that Section 5 of the Fourteenth Amendment was the provision at issue.317 The unanswered question is whether this presages a new requirement that a federal court must now examine the factual basis upon which a congressional policy choice was made pursuant to other constitutional congressional powers rather than the traditional inquiry into what Congress meant a statute to say, not why it said it.318 Dicta in Florida Prepaid have created an inference that this may not be the “rule” for “proper Article I concerns,”319 but the question remains whether there should be any differentiation in the method of constitutional review based upon the provision at issue.

Assuming that there is a new rule, this means that a court now has a license to examine whether, in its opinion, Congress had an adequate factual basis to exclude the consideration of economic im[*PG229]pacts and technological feasibility under CAA sections 108–109.320 In Florida Prepaid, the majority gave no consideration to the patent infringement litigation engendered by the immunization from liability caused by Seminole Tribe which was noted by the dissent.321 This implies that the only evidence a court will consider is the information utilized by Congress at the time it made its decision. It appears that this will consist of hearing records.322 Thus, if there is a new standard of review, and logic provides no reason to differentiate between constitutional provisions, the hearing records from the 1970 CAA will now be examined to determine if Congress made the “appropriate” choice, in the opinion of the unelected federal judiciary, when it decided to exclude economic and technological feasibility from consideration when setting CAA  109323 national ambient air quality standards.324

D.  Implications for Takings

This section explores the implications of the Quartet for the issue of governmental takings. In some instances, the implications are direct. In others, they are more inferential. It should be noted at this point that the Fifth Amendment325 Takings Clause326 is made applicable to the states only through the Fourteenth Amendment.327

Seminole Tribe clearly states that the Eleventh Amendment acts to modify judicial power within the ambit of Article III of the Constitution.328 Without more, this would have effectively eviscerated the “just compensation” part of the Takings Clause because it is well established that access to a state’s treasury is a critical factor in triggering the [*PG230]Eleventh Amendment bar.329 The crucial addition is the incorporation via the Fourteenth Amendment which the Court held modifies the Eleventh Amendment bar.330 The Court, however, spoke of congressional power to abrogate the Eleventh Amendment shield pursuant to the Fourteenth Amendment’s Section 5. Thus, unless Congress has acted through statute to confer jurisdiction on the federal courts, including the Supreme Court,331 to enforce the Takings Clause, then the federal courts may be without jurisdiction. A statute must explicitly seek to utilize the Fourteenth Amendment’s Section 5, assuming that it has a valid basis in Section 1, in order to confer jurisdiction on the federal courts.332 The question becomes whether the jurisdictional statutes make the waiver explicit. The author finds none that make such a waiver.

Assuming that the jurisdictional statutes do make an explicit waiver, the test propounded by Florida Prepaid comes into play. The hearing records must demonstrate that states are engaging in nefarious activity at the time the statute is enacted in order for it to be a valid enactment pursuant to the Fourteenth Amendment.333 Additionally, states must provide either no remedy or only inadequate remedies in order for Congress to invoke the Fourteenth Amendment as the basis for legislative action.334 Alden propounds the existence of a residual state sovereignty unless limited by the Constitution.335 The extent of this state sovereignty is unclear beyond the facts of Alden, but it appears that the Court intended it to extend beyond the facts of the decision.

Nollan v. California Coastal Commission336 is a reasonable point at which to begin. The Constitution of California provides as follows:

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be per[*PG231]mitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to navigable waters of this State shall always be attainable for the people thereof.337

Although the Court found this provision unavailing,338 the question to be asked is to what extent Alden may have altered it. It appears logical that to determine the nature of state sovereignty one should look to a state’s constitution, and it may be possible to assert that California’s constitution reserves certain “rights” over land analogous to the dominant navigational servitude enjoyed by the federal government.339 This would be consistent with the concurrent sovereignty doctrine propounded in Alden.

It may be asserted that in 1879 California established a dominant servitude as part of its residual sovereignty. Although the owner of the land at that time may have had a claim for compensation, it is reasonable to assert that the subsequent purchasers took title subject to that servitude.340 It is to be presumed that the California legislature acted pursuant to its constitution. If retaining servitudes upon land is not an Alden attribute of sovereignty, then it is difficult to imagine what else this doctrine contains. Thus, an implementing statute enacted pursuant to a state’s constitutional provision which retains a servitude cannot be a taking.341 Whether the Court will accept the logical extension of Alden is another matter.

In Nollan, the Court characterized the action as “permanent physical occupation.”342 The question arises whether it is not better characterized as a restriction on use in that the state “took” part of the use of the asset. Under this formulation, the question arises as to [*PG232]whether there is now property being taken after the decision in College Savings. In College Savings, the Court held that the activity of using an asset, which was conceded to be property, to do business and make a profit was not a protected property interest implicating the Fourteenth Amendment Due Process Clause.343 In Florida Prepaid, the Court found that a state interfering with the right to exclude others did not by itself violate the Fourteenth Amendment.344 Thus, if the purported taking is the deprivation of the use of an asset, then under the logic of College Savings there can be no proscribed taking. It is conceded that the property at issue in Nollan was realty and that in College Savings it was not, but where is the logical distinction after Eastern Enterprises v. Apfel?345 It should be further noted that in both Nollan and College Savings the deprivation of use was present as well as future and not based upon retroactive conduct. It is not clear from College Savings how much use the complainant lost.

In a recent federal district court decision, a plaintiff filed an action against a village alleging a taking and against the state as required by state statute.346 A platted, but unconstructed, street passed by plaintiff’s property to a lake and provided, evidently, considerable public access.347 A state official was made a defendant to the suit as required by state law.348 The gravamen of the relief sought was prospective in nature.349 The court, in dismissing the state and state official as defendants, found that the Eleventh Amendment barred the action and that Ex parte Young did not apply because of the “special sovereignty interest” at issue.350 The entire action was ultimately dismissed, but it is not clear whether the action against the village failed because the state was an indispensable party.351 Applying the foregoing analysis to [*PG233]Tigard and Lucas v. South Carolina Coastal Council,352 it may be possible to question their continued vitality as well.

E.  Delegated Authority and Citizens’ Suits

This part will examine to what extent the Quartet has altered the ability of a citizen to sue a state pursuant to citizens’ suit provisions in federal law, as well as the ability to sue a state, or arm of a state, when a permittee has a dispute with such an entity operating a federal program under delegated authority. Numerous federal environmental statutes allow a state to administer the federal program upon agreeing to specified conditions.353 Many of the same statutes also contain specific provisions for citizens’ suits354 but many also condition them on not waiving whatever Eleventh Amendment bar may be available.355

[*PG234] One commentator has questioned whether delegation may be conditioned upon a state, in effect, volunteering to waive its Eleventh Amendment immunity.356 If delegation may be analogized to a “gratuity,” in that the federal government will conduct enforcement if a state does not seek delegation, then it would seem to meet the parameters of College Savings which, admittedly in dicta, noted with approval congressional conditioning of an interstate compact upon a state’s agreeing to waive its Eleventh Amendment immunity.357 The Court did not, however, view this as coercive even though a state cannot enter into a compact without congressional approval.358 The non-coercive argument for such requirements would appear to be enhanced as a result of the numerous specific declarations of non-abrogation previously noted.359 The credence given to this dicta is somewhat mitigated when one recalls that Seminole Tribe seemingly approved constructive waiver [*PG235]in dicta.360 College Savings has ended any assertion that when a state, or an arm of a state, participates in a federally regulated activity it has waived its Eleventh Amendment immunity361 subject to the qualification for specific waiver noted above. The question now to be addressed is whether a state, or an arm of a state, may be sued absent express consent.

One preliminary matter should be addressed. Middlesex County Sewerage Authority v. National Sea Clammers Ass’n362 concerned an action alleging implied causes of action under the CWA, MPRSA363 and 42 U.S.C.  1983.364 The Court found no implied remedy under the CWA or MPRSA based upon the extensive remedial scheme.365 The Court also found that the extensive remedial scheme under both statutes precluded an action pursuant to 42 U.S.C.  1983.366 It should be remembered that Seminole Tribe specifically excluded an action pursuant to Ex parte Young because the statute at issue had an extensive remedial scheme even though it had just found it unconstitutional.367 Even [*PG236]if the remedial scheme is more modest, the use of Ex parte Young may be precluded.368 If an environmental statute has been found to preclude a 42 U.S.C.  1983 claim under Clammers, then it is no stretch to assert that an Ex parte Young action is also precluded under the Quartet. In each of the Quartet cases the plaintiff was also seeking prospective relief in the form of an order requiring the state entity to obey a valid federal statutory right, and the Court precluded prospective relief in each instance.369

A recent decision based solely on Seminole Tribe is instructive.370 The plaintiff brought an action against EPA and the state agency which operated the CWA  404 program under delegated authority.371 The court found that there was no abrogation of the Eleventh Amendment by the CWA,372 and that the action could not be maintained under the Ex parte Young exception.373 In another action alleging that a state was a CWA polluter,374 the Ex parte Young exception was found to be available based upon the inference regarding CWA citizens’ suits found in a footnote in Seminole Tribe.375 In another decision alleging that a state was a CWA, RCRA and CERCLA polluter, a citizen suit was found barred by the Eleventh Amendment when state officials were sued in their official capacities.376

Absent express consent, it appears that the federal court door is closed, leaving plaintiffs only the alternative of an action against the [*PG237]federal government, in most instances the EPA. The gravamen of such a claim would be that the federal agency did not ensure that the state operating under delegated authority properly fulfilled its duties, but such a suit would be fraught with difficulties.377

There may be one window which is open at least for a time. In United States ex rel. Stevens v. Vermont Agency of Natural Resources,378 an employee filed an action alleging that the state agency falsified claims for grants to operate federal programs under delegated authority.379 The action was brought on behalf of the United States under the federal False Claims Act.380 Upon an examination of the legislative history, the court found that a state was a person within the ambit of the act.381 Vermont then challenged the jurisdiction of the court by asserting the Eleventh Amendment as a bar.382 The court found that the real party in interest in a False Claims Act case is the United States, which has the option of intervening, taking over the case, and then either dismissing it or proceeding forward.383 Since the action is in legal reality between the United States and a state, the Eleventh Amendment does not apply.384 The Supreme Court has granted certiorari to this case, however, leaving the continued vitality of this avenue in doubt.

If the Court does uphold this action, then a new avenue for one aggrieved by a state’s operation of a statute under delegated authority is available. If it is possible to demonstrate that a state is not fulfilling its duties under its delegated authority by properly enforcing the law, then it may be possible to sue under the False Claims Act alleging that the state filed a false claim in seeking funds to administer the law at [*PG238]issue because it was not properly enforcing that law under its delegated authority. According to Stevens, the Eleventh Amendment bar will not apply because the action is being brought by the United States.385


The Calhounian Quartet will almost certainly have a significant impact upon environmental law and this article is intended only to begin the discussion. The immediate major adverse impact is in the area of intellectual property which is the cornerstone of current American economic growth and the “industry” which will be the center of economic growth in the new century.386 An enforceable system of intellectual property rights is key to a nation’s effectiveness in the new economy.387 This potential negative economic impact caused the author to forecast, incorrectly as it turned out,388 that the Court would step back from the economic precipice and limit, or overturn, Seminole Tribe. Reversal of the Civil War was not anticipated.

The sweeping restructuring of the constitutional structure represented by the Quartet is probably not at an end. The Court has granted certiorari to three cases which will provide the opportunity to either extend the sweep, or to pull back.389 What seemed farfetched [*PG239]one year ago is the new reality, at least for as long as current majority holds.

Where a state, or an arm of a state, has aggrieved a private party and violated federally-created statutory rights, there is likely to be no remedy (assuming that there is no consent to be sued) if the relief sought is retroactive and impacts a state’s treasury. In the instance of prospective relief, it appears likely that there is also no remedy. It should be remembered that in each of the Quartet, prospective relief was sought to keep a state from violating valid federally created statutory rights, and prospective relief was denied in each instance.

Just as Clammers stands for the proposition that 42 U.S.C.  1983 is not available for environmental suits where the statute provides an extensive remedial scheme,390 the Quartet holds that the existence of a comprehensive remedial scheme, even if it is unavailable to the aggrieved party because of the Eleventh Amendment, precludes Ex parte Young remedies. Since all of the federal environmental statutes allow the United States the discretion to bring an action against a state entity for enforcement, the existence, at least in theory, of this remedy should preclude the use of Ex parte Young. Since the federal government does not, and will not, have unlimited prosecutorial resources, it will use its discretion to select which actions to bring. These policy choices will reflect the viewpoint of the administration in power. Whether these choices will reflect the priorities of the aggrieved private party is quite another matter.

The rewriting of property law, assuming that the Court in College Savings meant what it said, to exclude the use of property from the ambit of the Fourteenth Amendment’s Due Process Clause undermines several previous takings decisions. If destroying the use is not within the ambit, then states are now free to regulate uses without being concerned with a takings claim. States also have a second arrow in their quiver because the jurisdictional statute, 28 U.S.C.  1255, does not abrogate of the Eleventh Amendment, explicitly or otherwise, and the Quartet clearly states that Article III is modified by the Eleventh Amendment. This would preclude the Court from granting certiorari to review such a decision of a state’s highest court, again assuming the Court meant what it said in the Quartet, until Congress enacts an explicit abrogation of the Eleventh Amendment pursuant to sufficient [*PG240]evidence of protected Fourteenth Amendment violations. It is unlikely that Nollan, Lucas, and Tigard could now even reach the Supreme Court until the statutory infirmity is removed.

Potentially even more problematic is the new standard of judicial review set forth in Florida Prepaid. Although any legislative action at issue will be examined to determine if it is within the ambit of the Fourteenth Amendment, it does not use any of the traditional codewords—i.e., strict scrutiny, rational basis, etc.391 Thus, it is not unreasonable to conclude that the statute will be examined under general “rules.” It should be remembered that in Florida Prepaid, the Court found the statute at issue to be within the parameters of congressional power, but the infirmity was that Congress did not have sufficient evidence, according to the majority, at the time it made its judgement to make the judgement it did. It is one matter to ask what Congress (or any other legislative body, for that matter) did in order to determine if it fits within Constitutional parameters; it is quite another to ask why and how Congress made its decision in order to determine if Congress had sufficient evidence to make its decision and if it was “appropriate.” The Court did not explicate an evidentiary standard for review—i.e., substantial evidence, preponderance of the evidence, etc.–so one is sailing on uncharted seas without a compass, much less a global positioning system.

This standard may provide the federal courts with a hunting license to challenge all environmental statutes to determine whether the evidence at the time they were enacted supported the legislation Congress made and the Executive signed. Several of the core elements of major environmental statutes were enacted more than twenty years ago. The standard the majority would apply is not the knowledge gained during the past twenty plus years but the evidence at the time the decision was made. Although the Clean Air Act was the primary focus of this Article’s examination, the same analysis applies to any of the federal environmental statutes. In the author’s opinion, [*PG241]this amounts to a thinly-veiled usurpation of the Separation of Powers doctrine.

This Article has considered the impact of state sovereign immunity upon the CWA and other federal environmental protection statutes, and concludes that the ethereal doctrine of state sovereignty enunciated in Alden may serve as a basis to limit the jurisdictional reach of federal environmental statutes. As the United States enters the twenty-first century as the dominant economic, political, and military nation, one may well ponder why a Supreme Court majority has chosen to leap into the eighteenth century instead.


On January 11, 2000, the Supreme Court further ratified the Calhounian Quartet in Kimel v. Florida Board of Regents,392 a decision regarding whether the Age Discrimination in Employment Act of 1967, as amended,393 validly abrogated a state’s sovereign immunity. Although some of the plaintiffs sought prospective relief,394 there appears to be no indication that the Court considered whether the remedy of Ex Parte Young was available. Instead, the Court specifically cited state age discrimination statutes in a footnote,395 leading to the inference that since other remedies are available, the Ex Parte Young remedy is not. The Court reiterated the amorphous concurrent soverignty doctrine, but placed it this time within the penumbra of the Eleventh Amendment,396 finding that there was a sufficiently explicit Congressional intent to abrogate from defining employers as including “public agencies.”397

The fundamental issue in Kimel was whether there was a valid Congressional abrogation of immunity pursuant to Section 5 of the Fourteenth Amendment.398 Using the test applied in Florida Prepaid,399 [*PG242]the Court held that the ADEA was not such a valid abrogation.400 The Court next held that age classifications did not implicate special Equal Protection concerns and were subject only to rational relationship review.401 The Court then examined “why Congress acted” to determine if it had sufficient evidence to reach its legislative conclusion,402 and made the evidentiary “ruling” that Congress had insufficient evidence of nefarious activity by states.403

As has been discussed in this article, and as in the previous Calhounian Quartet cases, the Court in Kimel left the statutory rights created by the ADEA intact, but precluded private party remedy.404 It should be noted that the ultimate basis of the decision was somewhat confused—the Court stated both that the ADEA is not a valid exercise of Congressional Article I power,405 and that the abrogation of state sovereignty through imposition of a private party remedy is invalid.406 Nevertheless, the decision in Kimel largely reinforces the analysis and conclusions of this article.

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