Yes, Senator Cardin’s Chesapeake Bay Bill Is Grounded in Constitutional Law

On Monday, CPR Member Scholars and others sent a memorandum to Senator Ben Cardin that addressed the constitutionality of S. 1816, the Chesapeake Clean Water and Ecosystem Restoration Act of 2009. At a Senate Subcommittee on Water and Wildlife hearing earlier this month, one witness contested the key provisions of S. 1816, asserting that they are unconstitutional with respect to the Tenth and Eleventh Amendments of the U.S. Constitution. The memo, signed by CPR Member Scholars Robert Adler, William Andreen, Holly Doremus, Daniel Farber, Robert Glicksman, Rena Steinzor, Dan Tarlock, and Sandra Zellmer; by University of Maryland School of Law Professors Jane Barrett and Robert Percival; and by CPR Executive Director Shana Jones and myself, concludes that S. 1816 is grounded in constitutional principles and supported by existing case law and statutes. With a bit of technical clarification, S. 1816 will deserve a clean bill of constitutionality.

The key provisions in S. 1816 are the requirement that Bay states and the District of Columbia formulate and implement watershed implementation plans (WIPs), designed to attain the pollution limitations of nitrogen, phosphorous, and sediment cap loads identified in the Chesapeake Bay TMDL, and that Bay states submit biennial progress reports on the extent to which WIPs have been implemented. If a Bay state fails to submit a WIP or a biennial report, or fails to correct a previously missed 2-year commitment in its WIP, the EPA Administrator would be required to develop and administer a federal WIP. Moreover, if a state fails to take these actions, it would also be subject to an enforcement action by the EPA and to a citizen suit.

In design and purpose, the Chesapeake Clean Water and Ecosystem Restoration Act follows the successful model of delegated federal authority in many environmental acts, including the Clean Water Act and the Clean Air Act. In all three acts, the EPA has set certain national standards that states must meet by either their own regulatory scheme or by electing to do nothing and having the federal government develop and implement its own regulatory scheme. In all three acts, the EPA can bring an enforcement action against states that fail to implement these plans or schemes, and citizens can bring suit against state officers for prospective, injunctive relief.

This model of cooperative federalism has been repeatedly upheld under the Tenth Amendment by the Supreme Court. The Tenth Amendment prohibits the federal government from compelling the states to implement, by legislative or executive action, federal regulatory programs. Although Congress cannot commandeer states, it can encourage states to help achieve national health, safety, and environmental goals through its spending power and through the Commerce Clause. S. 1816 is consistent in structure with some of the most effective federal environmental acts: it gives states the first opportunity to develop and implement their own WIPs. Failing that, S. 1816 provides a federal backstop, requiring the EPA to develop and administer a federal WIP.

Under the Eleventh Amendment, states are granted “sovereign immunity,” or immunity from lawsuits, in federal courts in certain circumstances. However, states are not immune from private lawsuits demanding prospective, injunctive (rather than monetary) relief. In S. 1816, the Eleventh Amendment question is not a question of whether the citizen suit provision is constitutional, but rather a question of what type of relief citizens can expect when bringing a suit. Eleventh Amendment case law is clear: the relief is prospective, injunctive relief against state officers for continuing violations of federal law. For example, courts have held that the Eleventh Amendment does not bar citizen suits to compel state officials to fully implement EPA-approved SIPs under the Clean Air Act.

As written, S. 1816 rectifies a long-standing oversight in federal water quality regulation: the absence of any explicit mandate that requires states to implement the pollution load allocations developed in the Bay-wide TMDL. The legislation cures this oversight by requiring the formulation of watershed implementation plans, either by states in the first instance or by the EPA. S. 1816 could highlight this program of cooperative federalism by explicitly referencing this structure under the same section. S. 1816 also remedies this oversight by permitting citizen suits, in addition to EPA enforcement actions, for failure to meet or correct a previously missed 2-year commitment in the WIP.

S. 1816 could, however, run into problems because it arguably exposes a state to a citizen suit for failure to submit a WIP even if the EPA steps in to develop and administer a federal WIP. The citizen suit provision in S. 1816 is also limited by its reference to the citizen suit provision in the Clean Water Act, which refers primarily to permits issued under the National Pollutant Discharge Elimination System and EPA orders. Here, a court could potentially conclude that S. 1816 only allows citizen suits when a state is in violation of a NPDES permit or an EPA order – a narrow reading that would clearly nullify the broad enforcement provisions intended in S. 1816.

To further solidify the constitutional ground on which S. 1816 rests, we suggest that the legislation could include a separate citizen suit provision that specifies that citizen suits may only be filed against a state officer for injunctive relief, on the basis of a state’s failure to meet any two-year commitments and standards in the WIP (in addition to violations of NPDES permits and EPA orders).

Our memo lauds Senator Cardin’s Chesapeake Clean Water and Ecosystem Restoration Act – and his decades of leadership in the Bay – for its great strides toward making the Chesapeake Bay Program and its partners accountable for promises to restore the Bay. The preemptive constitutional challenges are a distracting attempt to delay Bay restoration. Fortunately for supporters of a cleaner Chesapeake Bay, those challenges are without legal merit.