PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1783
STATE OF NORTH CAROLINA, EX REL.; ELIZABETH S. BISER; NORTH
CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY, Division of
Air Quality,
Plaintiffs – Appellants,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF THE
NAVY; UNITED STATES MARINE CORPS; MARINE CORPS AIR STATION
CHERRY POINT,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Terrence W. Boyle, District Judge. (4:20-cv-00016-BO)
Argued: May 5, 2021 Decided: July 29, 2021
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed in part, reversed in part, and remanded for further proceedings by published
opinion. Judge Motz wrote the opinion, in which Judge King joined. Judge Agee wrote
an opinion concurring in part and dissenting in part.
ARGUED: Sarah Gardner Boyce, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellants. Robert Lundman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Joshua H.
Stein, Attorney General, Ryan Y. Park, Solicitor General, Mary S. Crawley, Assistant
Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Jonathan D. Brightbill, Principal Deputy Assistant Attorney General,
Eric Grant, Deputy Assistant Attorney General, David Gunter, Environment and Natural
Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees.
2
DIANA GRIBBON MOTZ, Circuit Judge:
After a coal-powered Marine Corps facility failed an air quality compliance test,
and so violated its state permit, North Carolina assessed a civil penalty against it. The
Marine Corps facility refused to pay, so North Carolina brought suit in state court, seeking
recovery of the unpaid penalty. The federal government defendants (“the United States”)
removed the case to federal court and sought dismissal, contending that the Clean Air Act
does not waive sovereign immunity as to punitive civil penalties. North Carolina moved
to remand the case to state court and, alternatively, opposed dismissal on sovereign
immunity grounds.
The district court held for the United States on both fronts and dismissed the case.
Because the Clean Air Act does not preclude removal but does waive sovereign immunity
as to the penalty at issue here, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
I.
For several years, Marine Corps Air Station Cherry Point (“Cherry Point”), located
in Craven County, North Carolina, generated heat from coal-fired steam boilers. Federal
law requires all nonexempt federal facilities “engaged in any activity resulting . . . in the
discharge of air pollutants,” including Cherry Point, to comply with state air quality
provisions. See 42 U.S.C. § 7418(a). To that end, in 2014, Cherry Point obtained a North
Carolina-issued permit authorizing operation of its steam boilers but imposing a cap on the
emission of certain hazardous air pollutants.
3
Two years later, Cherry Point conducted mandatory tests to determine its
compliance with the permit’s limitations. Upon reviewing the results, North Carolina
concluded that one of Cherry Point’s steam boilers dramatically exceeded the permit’s
emissions cap. In light of this violation, the state imposed a civil penalty on Cherry Point
of $8,000, plus $472 in investigation costs. When assessing the penalty, North Carolina
also notified Cherry Point that, under state law, it had thirty days to submit payment,
request remission, or file a petition for an administrative hearing.
Cherry Point did none of the above. Instead, it sent a letter to North Carolina
maintaining that it need not pay the penalty “based on the legal principle of Federal
sovereign immunity.” Because Cherry Point declined to submit a signed remission form,
North Carolina concluded that it could not process Cherry Point’s letter as a remission
request.
After two years of stalemate, North Carolina filed this suit in the Superior Court of
Craven County, North Carolina, seeking recovery of the penalty, investigation costs, and
accrued interest. A month later, the United States removed the case to the United States
District Court for the Eastern District of North Carolina.
Once in federal district court, the United States moved to dismiss on sovereign
immunity grounds. The following day, North Carolina filed a motion to remand the case
to state court, contending that the Clean Air Act precludes removal. In the alternative,
North Carolina opposed the motion to dismiss, arguing that two provisions of the Clean
Air Act unambiguously waive the federal government’s sovereign immunity as to punitive
civil penalties levied pursuant to state air pollution laws. The district court agreed with the
4
United States on both issues: It upheld removal and dismissed the case. North Carolina
timely noted this appeal. We review the district court’s resolution of both issues de novo.
See Ripley v. Foster Wheeler LLC, 841 F.3d 207, 209 (4th Cir. 2016); Pittston Co. v. United
States, 199 F.3d 694, 701 (4th Cir. 1999).
II.
We begin with the propriety of removal. The United States ordinarily enjoys an
absolute right to remove cases to federal court. North Carolina, however, contends that the
Clean Air Act carves out a novel exception to that right. Upon close examination, we
cannot agree.
The United States removed this case pursuant to the federal officer removal statute,
which provides that “[a] civil action . . . that is commenced in a State court and that is
against . . . [t]he United States or any agency thereof” may be transferred to federal district
court. 28 U.S.C. § 1442(a)(1). The Supreme Court has long “held that that the right of
removal is absolute for conduct performed under color of federal office, and has insisted
that the policy favoring removal ‘should not be frustrated by a narrow, grudging
interpretation of § 1442(a)(1).’” Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (quoting
Willingham v. Morgan, 395 U.S. 402, 407 (1969)). To that end, § 1442(a)(1) “ensure[s]
a federal forum in any case where a federal [defendant] is entitled to raise a [federal]
defense.” Id. at 241 (emphasis added); see also Jefferson Cty., Ala. v. Acker, 527 U.S. 423,
447 (1999) (Scalia, J., concurring in part and dissenting in part) (noting that “the main
point” of § 1442(a)(1) is to give federal defendants “a federal forum in which to litigate the
5
merits of immunity defenses”). In 1996, when Congress amended § 1442(a)(1) to include
“the United States or any agency thereof,” Federal Courts Improvement Act of 1996, Pub.
L. No. 104-317, § 206, 110 Stat. 3847, 3850, it did so to “fulfill[] Congress’ intent that
questions concerning . . . the scope of Federal immunity . . . [would] be adjudicated in
Federal court,” S. Rep. 104-366, at 31 (1996); H.R. Rep. 104-798, at 20 (1996) (same).
The United States’ defense in this case — sovereign immunity — squarely
implicates § 1442(a)(1)’s core purpose. Nonetheless, North Carolina argues that the Clean
Air Act’s state suit provision, 42 U.S.C. § 7604(e), implicitly “carves out a narrow
exception” to removal that precludes federal court adjudication of this federal immunity
defense. Opening Br. at 33. In relevant part, § 7604(e) provides:
Nothing . . . in any other law of the United States shall be construed to
prohibit, exclude, or restrict any State . . . from bringing any enforcement
action or obtaining any judicial remedy or sanction in any State or local court
. . . against the United States . . . under State or local law respecting control
and abatement of air pollution.
42 U.S.C. § 7604(e).
Relying on the Ninth Circuit’s decision in California ex rel. Sacramento Metro. Air
Quality Mgmt. Dist. v. United States, North Carolina contends that § 7604(e) “guarantee[s]
the right of state and local governments to obtain judicial remedies and sanctions in state
and local courts.” 215 F.3d 1005, 1011 (9th Cir. 2000). As such, North Carolina argues
that § 7604(e) tacitly “nullifies” any law “that operates to ‘prohibit, exclude, or restrict’ a
State from securing judicial relief against the federal government” in state court. Opening
Br. at 26 (quoting 42 U.S.C. § 7604(e)). In North Carolina’s view, § 1442(a)(1) constitutes
such a law because removal prevents a state court from proceeding “further unless and until
6
the case is remanded,” BP P.L.C. v. Mayor & City Council of Balt., No. 19-1189, slip op.
at 8 (U.S. 2021) (quoting 28 U.S.C. § 1446(d)), thus precluding the state court from
granting relief. Accordingly, North Carolina says, § 7604(e) “overrides” § 1442(a)(1) and
so requires North Carolina’s suit — and the United States’ federal defense — to be litigated
in state court. Opening Br. at 28.
The parties agree that “when two statutes are capable of co-existence,” we cannot
say that one nullifies the other “absent a clearly expressed congressional intent” to that
effect. Morton v. Mancari, 417 U.S. 535, 551 (1974). Without such indication, our “duty”
is to “regard [both statutes] as effective.” Id. Accordingly, if § 7604(e) and § 1442(a)(1)
are capable of co-existence and Congress has not clearly expressed a contrary intent, we
must regard § 1442(a)(1) as effective — and unaltered by § 7604(e).
These “two statutes are capable of co-existence.” Morton, 417 U.S. at 551.
Contrary to North Carolina’s argument, § 7604(e) does not require actions brought in state
court to remain there. North Carolina claims that “nothing” — not even the United States’
absolute right of removal — may prevent North Carolina from “obtaining” remedies “in
state court.” 42 U.S.C. § 7604(e). Yet it concedes that “procedural constraints and valid
substantive defenses” cabin its ability to “obtain” relief. Reply Br. at 6. Thus, even North
Carolina recognizes that, unlike § 1442(a)(1), § 7604(e) does not confer an absolute right.
Rather, as the Clean Air Act’s drafters confirmed, § 7604(e) codifies Congress’s
intent to “authorize States to sue Federal facilities in State courts, and to subject such
facilities to State sanctions.” H.R. Rep. No. 95–564, at 137 (1977). Removal in no way
impedes those grants of authority. It does not prevent states from bringing enforcement
7
actions or levying penalties against federal facilities. Section 1442(a)(1) merely ensures
that colorable federal defenses — such as the sovereign immunity defense at issue here —
do not depend on the “varying” whims of state courts. Tennessee v. Davis, 100 U.S. 257,
266 (1879). As such, we perceive no conflict between these statutes that requires
nullification of § 1442(a)(1). Cf. United States v. Mitchell, 39 F.3d 465, 473 (4th Cir. 1994)
(holding that statutes do not conflict where one “in no way impairs the effectiveness of
the” other). 1
Congress has certainly not expressed, let alone “clearly expressed,” a contrary
intent. Morton, 417 U.S. at 551. When discerning congressional intent, we begin with
statutory text. Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004). Here, § 7604(e)’s express
language is of no aid to North Carolina: On its face, the provision contains no reference to
removal. Section 7604(e), quite unlike numerous statutes that explicitly limit removal (see,
e.g., 15 U.S.C. §§ 77v(a), 1719, 3612; 28 U.S.C. § 1445), is conspicuously silent on the
matter. And, as the Supreme Court has recognized, “[w]hen Congress has ‘wished to give
plaintiffs an absolute choice of forum, it has shown itself capable of doing so in
unmistakable terms.’” Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 697 (2003)
(quoting Cosme Nieves v. Deshler, 786 F.2d 445, 450 (1st Cir. 1986)).
1
Relying on the general-specific rule of construction, North Carolina suggests that
these two provisions may coexist, but only if § 1442(a)(1)’s “more general” rule yields to
§ 7604(e)’s “more specific” language. Opening Br. at 32–33. However, “the general-
specific rule of construction applies only when specific and general statutory provisions
conflict.” Lara-Aguilar v. Sessions, 889 F.3d 134, 142 (4th Cir. 2018) (quotation marks
omitted). Here, there is no conflict, so the rule is inapt.
8
Nor does anything in § 7604(e)’s plain text — including its indication that no “other
law” may “restrict” states from “obtaining” relief “in state court” — even implicitly create
an exception to § 1442(a)(1). Indeed, Congress could not have intended the words “other
law” to reference the removal statute, for at the time of § 7604(e)’s enactment, § 1442(a)(1)
did not authorize removal by federal facilities. See City of Jacksonville v. Dep’t of Navy,
348 F.3d 1307, 1311 (11th Cir. 2003); see also Int’l Primate Prot. League v. Administrators
of Tulane Educ. Fund, 500 U.S. 72, 76 (1991).
Moreover, the neighboring provisions of the Clean Air Act critically undermine
North Carolina’s theory as to this removal exception. According to North Carolina,
§ 7604(e) guarantees it a state forum because Congress “belie[ved] that state court
adjudication of state law issues was of paramount importance in air pollution control
matters.” United States v. Puerto Rico, 721 F.2d 832, 838 (1st Cir. 1983). But this
supposed belief cannot be squared with the Clean Air Act’s express grant of concurrent
jurisdiction to federal district courts. See 42 U.S.C. §§ 7604(a) (providing that “the district
courts shall have jurisdiction” over actions concerning state “emission standard[s] or
limitation[s]”), 7604(c) (providing that actions “respecting a violation by a stationary
source . . . may be brought only in the judicial district in which such source is located”),
7602(e) (providing that such actions may be brought in federal court by a “State” or
“political subdivision of a State”). Far from demonstrating an absolute preference for
“nonfederal” courts, Sacramento Metro. Air Quality Mgmt., 215 F.3d at 1012, the Clean
Air Act repeatedly indicates that Congress intended state air pollution lawsuits to be
litigated in state and federal courts.
9
Legislative history is similarly unhelpful to North Carolina’s cause. To be sure,
Congress lamented the federal government’s “obstinate[]” refusal to comply with state air
pollution laws, H.R. Rep. No. 95-294, at 199 (1977), and sought to expand states’
enforcement capabilities, id. at 2, but this does not demonstrate an intention to “establish a
detour around a federal forum,” Puerto Rico, 721 F.2d at 838. In fact, the drafters’ only
reference to removal indicates that legislators “delete[d] a provision which barred removal
of suits against Federal facilities to Federal courts.” H.R. Rep. No. 95–564, at 137 (1977)
(emphasis added). While the Ninth Circuit hypothesizes that Congress considered this
provision redundant, Sacramento Metro. Air Quality Mgmt. Dist., 215 F.3d at 1012, the
Supreme Court directs us to draw the opposite inference, Russello v. United States, 464
U.S. 16, 23–24 (1983) (“Where Congress includes limiting language in an earlier version
of a bill but deletes it prior to enactment, it may be presumed that the limitation was not
intended.”).
At bottom, North Carolina urges us to endorse an idiosyncratic exception to an
ordinarily absolute right. Manypenny, 451 U.S. at 242. When pressed at oral argument,
North Carolina could not identify any other provision that similarly frustrates the United
States’ right of removal. See Oral Arg. at 6:17–6:41. We decline to reach such an
anomalous result today. Accordingly, we conclude, as the district court held, that the
United States properly removed this suit.
10
III.
We now turn to sovereign immunity. North Carolina contends that this suit should
not be dismissed because the Clean Air Act waives the United States’ immunity as to
punitive civil penalties assessed pursuant to state air pollution law. The United States
counters that, while the Clean Air Act does waive its immunity, it does so only as to
“coercive civil penalties — that is, penalties that induce a noncompliant federal agency to
comply with state emissions limitations” — not punitive penalties like that at issue here.
United States Br. at 1.
A waiver of sovereign immunity “must be unequivocally expressed in statutory
text.” Lane v. Pena, 518 U.S. 187, 192 (1996). However, “Congress need not state its
intent [to waive sovereign immunity] in any particular way” or employ “magic words.”
F.A.A. v. Cooper, 566 U.S. 284, 291 (2012). And while a court must construe ambiguous
text in favor of immunity, Lane, 518 U.S. at 192, it cannot “import immunity back into a
statute designed to limit it,” Indian Towing Co. v. United States, 350 U.S. 61, 69 (1955).
North Carolina maintains the Clean Air Act contains two waivers as to all civil
penalties, including punitive penalties. The first is the federal facilities provision, which
provides:
Each department, agency, and instrumentality of . . . the Federal Government
. . . shall be subject to, and comply with, all Federal, State, interstate, and
local requirements, administrative authority, and process and sanctions
respecting the control and abatement of air pollution . . . whether enforced in
Federal, State, or local courts, or in any other manner. This subsection shall
apply notwithstanding any immunity of such agencies, officers, agents, or
employees under any law or rule of law.
42 U.S.C. § 7418(a).
11
Relying on U.S. Dep’t of Energy v. Ohio, 503 U.S. 607 (1992) [hereinafter DOE],
the United States insists that § 7418(a) waives immunity only as to penalties imposed to
compel a recalcitrant party’s compliance, not those assessed as punishment for past
violations. In DOE, the Supreme Court interpreted a similar provision in the Clean Water
Act, 33 U.S.C. § 1323(a), and determined that its repeated pairing of the word “sanctions”
with the word “process” meant that “Congress was using ‘sanction’ in its coercive sense,
to the exclusion of punitive fines,” DOE, 503 U.S. at 623 (holding that § 1323(a) only
contemplates “forward-looking orders” such as “equity’s traditional coercive sanctions for
contempt”). The United States maintains that the appearance of the phrase “process and
sanctions” in § 7418(a) necessitates the same result.
In response, North Carolina notes that, unlike § 7418(a), the provision at issue in
DOE expressly limits federal liability under state law to coercive civil penalties. See 33
U.S.C. § 1323(a) (providing that “the United States shall be liable only for those civil
penalties . . . imposed by a State or local court to enforce an order or the process of such
court”); DOE, 503 U.S. at 624–27 (holding that this “proviso serves to confirm” and
“clarify” the provision’s sovereign immunity waiver). And, given that § 7418(a) and
§ 1323(a) were enacted mere months apart, North Carolina contends that this omission —
the “critical textual difference” — means the rationale in DOE does not control the proper
interpretation of § 7418(a). Opening Br. at 60.
Multiple courts — before and after DOE — have adopted North Carolina’s view of
§ 7418(a)’s waiver of sovereign immunity. See, e.g., United States v. Tennessee Air
Pollution Control Bd., 967 F. Supp. 975, 981 (M.D. Tenn. 1997), aff’d on other grounds,
12
185 F.3d 529 (6th Cir. 1999); Alabama ex rel. Graddick v. Veterans Admin., 648 F. Supp.
1208, 1211 (M.D. Ala. 1986). Similarly, since DOE, the U.S. Comptroller General has
maintained that, given § 7418(a)’s waiver, a federal agency may be compelled “to pay a
[punitive] civil penalty imposed” by a local air pollution control board. Matter of: Use of
Appropriated Funds to Provide Financial Incentives to Employees for Commuting by
Means other than Single–Occupant Vehicle, 72 Comp. Gen. 225, 228 (1993) (citing Matter
of: Nat’l Oceanic & Atmospheric Agency Payment of Civil Penalty for Violation of Local
Air Quality Standards, Op. Comptroller Gen. No. B–191747, 1978 WL 9814 (1978)).
Undoubtedly, then, North Carolina’s argument with respect to § 7418(a) has real
force. Nonetheless, we need not determine § 7418(a)’s precise scope, for the second
provision of the Clean Air Act relied on as a waiver of sovereign immunity by North
Carolina, § 7604(e), plainly reaches punitive civil penalties. That provision does not
preclude removal, but it does constitute an unambiguous waiver of sovereign immunity
that encompasses this case.
In full, § 7604(e) provides:
Nothing in this section shall restrict any right which any person (or class of
persons) may have under any statute or common law to seek enforcement of
any emission standard or limitation or to seek any other relief (including
relief against the Administrator or a State agency). Nothing in this section or
in any other law of the United States shall be construed to prohibit, exclude,
or restrict any State, local, or interstate authority from —
(1) bringing any enforcement action or obtaining any judicial remedy or
sanction in any State or local court, or
(2) bringing any administrative enforcement action or obtaining any
administrative remedy or sanction in any State or local administrative
agency, department or instrumentality,
13
against the United States, any department, agency, or instrumentality thereof,
or any officer, agent, or employee thereof under State or local law respecting
control and abatement of air pollution. For provisions requiring compliance
by the United States, departments, agencies, instrumentalities, officers,
agents, and employees in the same manner as nongovernmental entities, see
section 7418 of this title.
42 U.S.C. § 7604(e).
In waiving the United States’ sovereign immunity as to “any . . . remedy or
sanction,” Congress granted a waiver as to every type of civil penalty, including those
levied for punitive purposes. 42 U.S.C. § 7604(e) (emphasis added). This is so because
the Supreme Court has expressly defined a “civil penalty” as “a type of remedy,” Tull v.
United States, 481 U.S. 412, 422 (1987), and held the word “‘any’ means ‘every,’” SAS
Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1353 (2018). Accordingly, the language at issue here
in § 7604(e) — “any . . . remedy or sanction” — broadly encompasses punitive civil
penalties. See United States v. Tennessee Air Pollution Control Bd., 185 F.3d 529, 534
(6th Cir. 1999).
The legislative history of § 7604(e) entirely accords with this unambiguous text.
See Cooper, 566 U.S. at 299 (noting that legislative history may confirm the scope of a
sovereign immunity waiver). That legislative history underscores Congress’s intention to
endow states with robust tools for air pollution law enforcement. Congress wrote that it
“intended to resolve any question about the sanctions to which noncomplying Federal
agencies . . . may be subject,” and it made clear that “[t]he applicable sanctions are to be
the same for Federal facilities . . . as for privately owned pollution sources.” H.R. Rep.
No. 95-294, at 200 (1977). “This means,” Congress further explained, “that Federal
14
facilities . . . may be subject to injunctive relief (and criminal or civil contempt citations to
enforce any such injunction), to civil or criminal penalties, and to delayed compliance
penalties.” Id. To that end, Congress expressly “provide[d] that a State . . . could bring a
judicial or administrative action against a Federal facility or entity in a State or local court
. . . pursuant to State or local law.” Id. at 201. Finally, Congress noted its expectation that
§ 7604(e) would help “end any further delays, excuses, or evasions by Federal agencies
and will mandate complete compliance” with state air pollution law. Id.
In the face of § 7604(e)’s unambiguous text and legislative history, the United States
unpersuasively offers two reasons to cabin the provision’s broad sweep. First, it contends
that § 7604(e) is nothing more than a savings clause. This is an unquestionably accurate
description of the provision’s first sentence. But § 7604(e)’s second sentence — the text
at issue here — provides that no “other law” shall restrict states from suing the United
States in state court pursuant to state air pollution law. 42 U.S.C. § 7604(e). By
empowering states to bring enforcement actions and obtain remedies and sanctions against
the United States, this sentence is far more than a savings clause. Rather, it clearly
“operates as a waiver of sovereign immunity.” City of Jacksonville, 348 F.3d at 1317–18;
Tenn. Air Pollution Control Bd., 185 F.3d at 532.
In the alternative, the United States asks us to hold, as the Eleventh Circuit did, that
even if more than a savings clause, § 7604(e)’s waiver is tethered to § 7418(a), which in
turn is limited to coercive civil penalties under DOE’s reasoning. See City of Jacksonville,
348 F.3d at 1319. We cannot agree.
15
Central to the Eleventh Circuit’s holding was its belief that § 7604(e) contains “no
language indicating whether [it] should be read broadly to encompass punitive penalties or
narrowly to exclude these penalties.” Id. But, in fact, § 7604(e) does contain such
language, for, as noted above, the critical phrase “any . . . remedy or sanction”
unequivocally indicates that § 7604(e) encompasses every type of civil penalty that may be
assessed “under State or local law respecting control and abatement of air pollution,” 42
U.S.C. § 7604(e) (emphasis added).
Nor does the Supreme Court’s analysis of the Clean Water Act in DOE require a
different conclusion. There, the Court found that the word “‘sanction’ is spacious enough
to cover not only . . . punitive fines, but coercive ones as well,” and so relied on “[t]he
term’s context” — namely, its repeated proximity to the word “process” — to interpret its
meaning. DOE, 503 U.S. at 621–23. But here, the context is different. Unlike the Clean
Water Act provision at issue in DOE, the Clean Air Act provision at issue here does not
repeatedly conjoin “sanction” with “process” or distinguish “process” from “substantive
requirements.” Id. at 623. In fact, the word “process” does not even appear in § 7604(e).
Rather, “sanction” is paired with “remedy,” a term the Supreme Court has held routinely
connotes a “civil penalty . . . intended to punish culpable individuals.” Tull, 481 U.S. at
422 (explaining that a provision which imposes a maximum civil penalty per violation of
certain environmental laws contains just such a “remedy”). “[A]ny . . . remedy or
sanction,” then, undoubtedly encompasses the civil penalty that North Carolina seeks to
recover here. See N.C. Gen. Stat. § 143-215.114A (imposing a maximum civil penalty per
violation of North Carolina’s air pollution laws).
16
Finally, we note that even if § 7418(a)’s waiver of sovereign immunity were limited
to coercive civil penalties — a conclusion we do not reach — there is nothing to suggest
that § 7604(e)’s waiver of sovereign immunity must be coextensive with that in § 7418(a).
To be sure, § 7604(e)’s final sentence cross-references § 7418, stating: “For provisions
requiring compliance [with state air pollution law] by the United States . . . in the same
manner as nongovernmental entities, see section 7418 of this title.” 42 U.S.C. § 7604(e).
But, as the Supreme Court recently recognized, “cross-references” do not “prove that [two
provisions] are coextensive.” Salinas v. United States R.R. Ret. Bd., 141 S. Ct. 691, 698
(2021).
Of course, some cross-references do expressly incorporate, amend, or harmonize
provisions, but others merely “alert the reader to the existence of additional information or
other material that might be of interest” and “neither affect[] the material to which [they]
refer[] nor [are] in any way affected by it.” F. Scott Boyd, Looking Glass Law: Legislation
by Reference in the States, 68 La. L. Rev. 1201, 1205–06 (2008). The cross-reference in
§ 7604(e) serves only this latter, “informational” purpose. Id. It does not “incorporat[e]
. . . a concept, definition, or specific analytic structure set out in” another provision,
Orquera v. Ashcroft, 357 F.3d 413, 418–19 (4th Cir. 2003), or mandate that § 7604(e) must
operate “in accordance with” another provision, MSPA Claims 1, LLC v. Tenet Fla., Inc.,
918 F.3d 1312, 1322 (11th Cir. 2019).
Section 7604(e)’s cross-reference “simply reminds the reader that § 7418 defines
the United States’ burden to comply with state laws.” Tenn. Air Pollution Control Bd., 185
F.3d at 533. In this way, the final sentence of § 7604(e) highlights that § 7418(a) and
17
§ 7604(e) work in tandem: Whereas § 7418(a) sets forth the United States’ duty to comply
with state law, § 7604(e) empowers states to bring enforcement actions and obtain
remedies and sanctions should the United States fail to comply with state law. Rather than
signaling a narrow waiver of immunity, these complimentary provisions expressly grant
states broad power to enforce their air pollution laws.
Indeed, contrary to the dissent’s intimations, § 7604(e)’s “purpose” was to expand
states’ enforcement options. Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006). As
detailed above, legislative history — which the dissent ignores 2 — repeatedly demonstrates
that § 7604(e) was part of a suite of provisions enacted “to provide more effective . . .
enforcement tools for States . . . to bring [federal and private facilities] into compliance
and to assure that they remain in compliance.” H.R. Rep. No. 95-294, at 2 (1977).
Moreover, Congress enacted § 7604(e) against the backdrop of numerous state laws
— like the North Carolina law at issue here — that empower state agencies to assess
punitive civil penalties in order to “deter future violations.” 2 DANIEL P. SELMI &
KENNETH A. MANASTER, STATE ENVIRONMENTAL LAW § 16:21 (2020). Congress
2
The dissent’s failure to consider legislative history is curious given its heavy
reliance on the Supreme Court’s analysis in Dolan v. U.S. Postal Serv., 546 U.S. 481
(2006). When determining the scope of a waiver of sovereign immunity in Dolan, the
Court treated as “decisive” its prior decision in Kosak v. United States, 465 U.S. 848
(1984), which in turn discerned “[o]ne of the principal purposes” of the relevant statute by
looking to its text and legislative history. Dolan, 546 U.S. at 487 (quoting Kosak, 465 U.S.
at 855). Indeed, even though the Court characterized the statute’s legislative history as
“meager,” Kosak, 465 U.S. at 855, it went on to examine that history at considerable length,
discussing a report written by the statute’s “apparent draftsman,” id. at 856–57, the
committee reports generated by both houses of Congress, id. at 857–58, 857 n.14, as well
as testimony before various congressional committees and subcommittees (which the Court
cited for evidence of the statute’s three “general purposes”), id. at 858–61, 858 n.17.
18
recognized that, to the extent “State and local enforcement efforts” had been “ineffective
in bringing about compliance,” it was precisely because states had been unable to
adequately enforce existing civil penalty provisions and had instead relied on “voluntary
or negotiated compliance.” H.R. Rep. No. 95-294, at 70–71 (1977) (citing U.S.
COMPTROLLER GEN., REPORT TO CONGRESS: ASSESSMENT OF FEDERAL AND STATE
ENVIRONMENT EFFORTS TO CONTROL AIR POLLUTION FROM STATIONARY SOURCES
(1973)). 3 In fact, Congress was so convinced of the efficacy of punitive civil penalties that,
at the same time it enacted § 7604(e), it empowered the Environmental Protection Agency
to “recover a civil penalty of not more than $25,000 per day” from any “person,” including
“any agency, department, or instrumentality of the United States,” “for each violation” of
the terms of a state implementation plan or permit. 42 U.S.C. §§ 7413(b), 7602(e).
Section 7604(e)’s broader purpose and context thus confirm that its text means what it says:
Congress sought to remove all barriers preventing states from “obtaining any judicial
remedy or sanction” against federal facilities, including penalties that Congress believed
were necessary to deter noncompliance. 42 U.S.C. § 7604(e).
Accordingly, we conclude that the Clean Air Act unambiguously and unequivocally
waives the United States’ sovereign immunity as to all civil penalties assessed pursuant to
state air pollution law, including punitive penalties like the one at issue here.
3
Since the enactment of § 7604(e), states as varied as Washington, Alabama,
Tennessee, and California have recovered punitive civil penalties from federal facilities
pursuant to their state air pollution laws. See Kenneth M. Murchison, Waivers of Immunity
in Federal Environmental Statutes of the Twenty-First Century: Correcting A Confusing
Mess, 32 Wm. & Mary Envtl. L. & Pol’y Rev. 359, 380–82, 385 (2008).
19
IV.
For these reasons, while the district court correctly concluded that the Clean Air Act
does not prevent removal, it erred in holding that the Act does not waive the sovereign
immunity of the United States. Thus, the judgment of the district court is
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
20
AGEE, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion that 28 U.S.C. § 1442(a)(1) authorized the United
States to remove this civil action to federal court. However, I disagree with its conclusion
that the Clean Air Act (“CAA” or “the Act”) contains an unequivocal waiver of sovereign
immunity for claims seeking purely punitive relief. Therefore, I respectfully concur in part
and dissent in part.
I.
The majority opinion ably sets out the underlying facts and statutory framework in
this case. I fully agree with its conclusion that 28 U.S.C. § 1442(a)(1)—the federal officer
removal statute—authorized the United States to remove this case and that 42 U.S.C.
§ 7604(e)’s language preserving a State’s right to “obtain[] any judicial remedy or sanction
in any State or local court” does not operate as a narrow exception to that general removal
power. For these reasons, I join Sections I and II of the majority opinion.
I part ways, however, with respect to the majority opinion’s sovereign immunity
analysis. As the district court concluded and the Eleventh Circuit held in City of
Jacksonville v. Department of the Navy, 348 F.3d 1307 (11th Cir. 2003), the text of the
CAA does not “waive the federal government’s sovereign immunity from punitive
penalties.” Id. at 1320. This conclusion rests on the text of the CAA’s relevant provisions,
42 U.S.C. §§ 7418(a) and 7604(e), as well as the Supreme Court’s analysis of a nearly
identical provision of the Clean Water Act (“CWA”) in United States Department of
Energy v. Ohio (DOE), 503 U.S. 607 (1992). For the reasons that follow, I would affirm
21
the district court’s order dismissing this case for lack of jurisdiction. Therefore, I
respectfully dissent from Section III of the majority opinion.
A.
North Carolina sued the United States to collect a civil penalty and investigative
costs levied against the U.S. Marine Corps Air Station Cherry Point after a January 2016
test revealed that a boiler was emitting more metallic hazardous air pollutants than
authorized by the facility’s permit issued pursuant to the CAA. Because the station had
since replaced the boilers, there were no allegations of potential future violations. Nor did
the State seek to enjoin or compel future conduct. As a result, the only relief North Carolina
sought was a judgment against the United States for past acts in the amount of $8,472.00
plus accrued interest to the date of the complaint. Because this relief would penalize the
United States for past violations, it is appropriately designated as a “punitive” fine. See
DOE, 503 U.S. at 613–14 (describing “punitive” fines as being “imposed to punish past
violations of [the Clean Water Act] or state laws supplanting [it]”).
But just because North Carolina wants to recover punitive relief from the United
States does not mean it can. As a sovereign, the United States enjoys immunity from suit
unless it has consented to be sued, and “the ‘terms of its consent to be sued in any court
define that court’s jurisdiction to entertain the suit.’” FDIC v. Meyer, 510 U.S. 471, 475
(1994) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). A sovereign’s
consent “must be unequivocally expressed,” United States v. Nordic Vill., Inc., 503 U.S.
30, 33 (1992) (citation and internal quotation marks omitted), meaning that a waiver of
federal sovereign immunity “will not be implied,” Lane v. Peña, 518 U.S. 187, 192 (1996);
22
accord Soriano v. United States, 352 U.S. 270, 276 (1957) (“[T]his Court has long decided
that limitations and conditions upon which the Government consents to be sued must be
strictly observed and exceptions thereto are not to be implied.”). Thus, except as Congress
has consented to a cause of action against the United States, there is no jurisdiction . . . to
entertain suits against the United States.” United States v. Testan, 424 U.S. 392, 399 (1976)
(internal quotation marks omitted). That means that a purported waiver “must be strictly
construed in favor of the sovereign, and not enlarged beyond what the language requires.”
Nordic Vill., 503 U.S. at 34 (citations, alterations, and internal quotation marks omitted).
Simply put, for a waiver of sovereign immunity to extend to punitive relief, the waiver
“must be unequivocally expressed in [the] statutory text.” Lane, 518 U.S. at 192. Here, the
text of the Act does not contain the requisite unequivocal expression to abrogate sovereign
immunity. Therefore, the district court correctly determined it lacked jurisdiction over
North Carolina’s claim.
B.
At issue are two provisions of the CAA, 42 U.S.C. §§ 7418(a) and 7604(e).
Although the majority opinion did not fully grapple with the text of § 7418(a) and rested
its analysis instead on the text of § 7604(e), examining both statutes reveals the errors in
its conclusion that the CAA contains an unequivocal waiver of federal sovereign immunity
from punitive fines.
23
1.
Section 7418(a), known as the federal facilities provision, generally subjects the
United States to the CAA’s requirements (with exceptions set out elsewhere), stating:
[The United States] shall be subject to, and comply with, all Federal, State,
interstate, and local requirements, administrative authority, and process and
sanctions respecting the control and abatement of air pollution in the same
manner, and to the same extent as any nongovernmental entity. The
preceding sentence shall apply (A) to any requirement whether substantive
or procedural . . . , (B) to any requirement to pay a fee or charge imposed
. . . to defray the costs of . . . air pollution regulatory program[s], (C) to the
exercise of any Federal, State, or local administrative authority, and (D) to
any process and sanction, whether enforced in Federal, State, or local courts,
or in any manner.
§ 7418(a). Pointing out that the statute subjects the United States to “all . . . process and
sanctions” concerning air pollution and later, in subparagraph (D) “to any process and
sanction,” North Carolina contends that § 7418(a) unequivocally waives federal sovereign
immunity from civil penalties such as the fine and investigative costs it sought in this case.
In considering what this statutory text means, the district court properly recognized
that “[a]ny interpretation of this provision is necessarily guided by the Supreme Court’s
decision in DOE v. Ohio, where it interpreted nearly identical language in the CWA’s
federal facilities provision,” 33 U.S.C. § 1323(a). J.A. 53. With minor differences, the
pertinent CWA statute tracks the above-quoted provisions of the CAA. 1
1
Most of the wording differences relate to the regulated conduct being “water”
versus “air.” In addition, the CAA adds one category to which “[t]he preceding sentence
shall apply.” Compare 33 U.S.C. § 1323(a), with 42 U.S.C. § 7418(a) (adding as
subparagraph (B) “any requirement to pay a fee or charge imposed by any State or local
(Continued)
24
In DOE, the Supreme Court rejected Ohio’s argument “that the statute’s use of the
word ‘sanction’ must be understood to encompass [punitive] fines.” 503 U.S. at 620. In
doing so, the Court pointed to both the term’s stand-alone meaning and its pairing with the
word “process” within the specific provision at issue. Id. at 621–23. For example, the
Supreme Court observed that “the meaning of ‘sanction’ is spacious enough to cover not
only what we have called punitive fines, but coercive ones as well, and use of the term
carries no necessary implication that a reference to punitive fines is intended.” Id. at 621.
The Court then noted that “examples of usage in the coercive sense abound,” citing almost
a dozen instances where the term “sanction” was used to reflect coercive rather than
punitive relief. Id. at 621–22. Based on these exemplars, the Court concluded that “resort
to a ‘sanction’ carries no necessary implication of the punitive as against the coercive.” Id.
Turning to the context in which the word “sanction” was used in the CWA’s federal
facilities provision, the Supreme Court concluded that any clarification that the context
provided “cut[] against Ohio’s position” that the text waived immunity from claims for
punitive fines. Id. at 622. This was so given that both times the word “sanction” appeared
in the provision, it was “within the phrase ‘process and sanction[s].’” Id. (alteration in
agency to defray the costs of its air pollution regulatory program” and changing the
corresponding letters for the last two categories). Further, the CWA’s federal facilities
provision adds a few provisions that either do not appear in or have been moved to other
subsections of the CAA, only one of which is invoked in this appeal. Lastly, as discussed
in greater detail later in the analysis, the CWA contains the following limitation that does
not appear in the CAA: “the United States shall be liable only for those civil penalties
arising under Federal law or imposed by a State or local court to enforce an order or the
process of such court.” 33 U.S.C. § 1323(a).
25
original). The Court identified three “features of this context [as] significant.” Id. at 623.
First, subparagraph (A) of the provision “distinguished” substantive requirements from
judicial processes, “even though each might require the same conduct.” Id. Second, the
word “sanction[s]” appeared in “conjunction” with “process” rather than “with the
substantive ‘requirements’ . . . in each of the two instances in which” it appeared. Id. That
was notable in the Supreme Court’s view because “‘[p]rocess’ normally refers to the
procedure and mechanics of adjudication and the enforcement of decrees or orders that the
adjudicatory process finally provides.” Id. Third, “the statute’s reference to ‘process and
sanctions’ as ‘enforced’ in courts or otherwise” implicated the “common[] understand[ing]
that ‘requirements’ may be enforced either by backward-looking penalties for past
violations or by the ‘process’ of forward-looking orders enjoining future violations.” Id. In
sum, “that the text speaks of sanctions in the context of enforcing ‘process’ as distinct from
substantive ‘requirements’ is a good reason to infer that Congress was using ‘sanction’ in
its coercive sense, to the exclusion of punitive fines.” Id.
To this point, the relevant text of the CWA’s and CAA’s federal facilities provisions
is substantively identical and the Supreme Court’s analysis of that text in the CWA applies
with equal force to understanding the meaning of “sanctions” as used in the CAA. The
same dictionary definition and stand-alone understanding of the term “sanctions” leads to
the conclusion that “use of the term carries no necessary implication that a reference to
punitive fines is intended” in the CAA. Id. at 621. Further, the context in which “sanction”
is used indicates its use in the forward-looking sense. Namely, the CAA’s federal facilities
provision distinguishes substantive and procedural requirements in subparagraph (A); the
26
word “sanction” appears twice and is used only in conjunction with the word “process”
each time it appears; and the provision refers to such “‘process and sanctions’ as ‘enforced’
in courts or otherwise.” Id. at 622–23; see 42 U.S.C. § 7418(a). Therefore, as was true in
DOE, there exists in this case “good reason to infer that Congress was using ‘sanction’ in
its coercive sense, to the exclusion of punitive fines.” 503 U.S. at 623.
The above analysis aligns with the only circuit court decision to consider the
meaning of “sanction” in § 7418(a). Following much the same path described above, the
Eleventh Circuit reviewed the text of § 7418(a), its similarity to the relevant provisions of
the CWA, and the Supreme Court’s discussion in DOE to conclude that § 7418(a) waived
immunity only from coercive sanctions. City of Jacksonville, 348 F.3d at 1314–16; see also
id. at 1316 (“[W]e follow the Supreme Court’s reasoning and conclude that because the
text uses the term ‘sanction’ in the context of enforcing ‘process’ as opposed to substantive
‘requirements,’ there is ‘good reason to infer that Congress was using “sanction” in its
coercive sense, to the exclusion of punitive fines.’”).
Notwithstanding these textual overlaps, North Carolina contends that the CAA’s
use of “sanction” should be construed differently than in DOE, in part, because its federal
facilities provision lacks a limitation found in the CWA. That CWA proviso states: “[T]he
United States shall be liable only for those civil penalties arising under Federal law or
imposed by a State or local court to enforce an order or the process of such court.”
§ 1323(a). In North Carolina’s view, the absence of similar language in the CAA shows
that Congress did not intend for the United States to be liable to States only for remedies
that are forward-looking and coercive. In doing so, it points to the Supreme Court’s later
27
discussion of this proviso to argue that DOE does not control interpretation of the term
“sanction” in § 7418(a).
North Carolina’s argument ignores the textual and principal contextual analysis in
DOE, as recited above, which shows an identical match otherwise between the CAA and
the CWA. It also misapprehends what the Supreme Court in DOE said about the CWA
proviso. Specifically, the Supreme Court concluded that the sentence was relevant to
interpreting “sanction” as used earlier in the CWA’s federal facilities provision only insofar
as it served a “clarifying function,” and that “as a clarifier the proviso speaks with an
uncertain voice.” 503 U.S. at 624 (emphasis added).
To the extent the CWA’s available civil penalties were modified by the phrase
“imposed by a State or local court to enforce an order or the process of such court,” the
Supreme Court recognized that it “serve[d] to confirm the reading we reached above.” Id.
As the Eleventh Circuit correctly recognized, the proviso’s language “did not serve as the
basis for the Supreme Court’s decision in [DOE]” but “simply confirmed the conclusion it
had already reached in analyzing the phrase ‘process and sanctions.’” City of Jacksonville,
348 F.3d at 1317.
The Supreme Court then turned to the proviso’s other modifier to civil penalties
(“arising under Federal law”) and concluded it was more “problematical” because it could
be interpreted to support the inclusion of punitive fines. Id. Ultimately, however, the
Supreme Court concluded that this reading would “raise a new and troublesome question
about the source of the legal authority to impose such a fine” and it rejected that
interpretation. Id.; see also id. at 624–27. Given the absence of a “satisfactory answer” as
28
to what effect the proviso had on understanding the meaning of “sanctions” earlier in the
statute, the Supreme Court turned instead to general principles governing waivers of
sovereign immunity. Id. at 627. In short, waiver will be found only when Congress uses
unambiguous language to that effect, and that clarity was lacking:
We . . . have a response satisfactory for sovereign immunity purposes to the
tension between a proviso suggesting an apparently expansive but uncertain
waiver and its antecedent text that evinces a narrower waiver with greater
clarity. For under our rules that tension is resolved by the requirement that
any statement of waiver be unequivocal: as against the clear waiver for
coercive fines the indication of a waiver as to those that are punitive is less
certain. The rule of narrow construction therefore takes the waiver no further
than the coercive variety.
Id.
The Supreme Court’s analysis of the “uncertain voice” of the proviso to the CWA’s
federal facilities provision demonstrates the flaw in North Carolina’s argument with regard
to the CAA. The Supreme Court only viewed the proviso as a possible way of expanding
the meaning of the earlier, more restrictive statutory language, which it had already
concluded would not demonstrate waiver of immunity from punitive penalties with or
without the proviso. To reiterate the Supreme Court’s own description: the “antecedent text
. . . evince[d] a narrower waiver with greater clarity” than the proviso potentially
demonstrated. Id. (emphasis added). Accordingly, because the CAA’s federal facilities
provision contains only the narrower “antecedent text” as contained in the CWA, DOE’s
reasoning necessarily leads to the conclusion that the CAA does not waive federal
sovereign immunity for punitive fines. City of Jacksonville, 348 F.3d at 1317 (“[T]he
absence of [the CWA’s proviso] in § 7418(a) of the CAA does not make any kind of
29
affirmative statement. . . . [T]he only affirmative and unequivocal language indicating the
scope of the government’s immunity is within the language we analyzed above discussing
‘process and sanctions.’”). Instead, because § 7418(a) unequivocally—and only—contains
the “narrower waiver,” under DOE, it must be interpreted as solely “waiv[ing] the federal
government’s sovereign immunity from coercive sanctions, but not from punitive
penalties.” Id.
At bottom, § 7418(a) does not contain the requisite waiver of federal sovereign
immunity for punitive fines necessary for North Carolina to pursue its claim against the
United States. Therefore, Congress must have unequivocally expressed that intent in
another statute for federal courts to have jurisdiction to entertain a case that only seeks
punitive relief.
2.
The second statute North Carolina relies on to support its argument is 42 U.S.C.
§ 7604, which authorizes citizen enforcement actions. Specifically, § 7604(e) recognizes
that the citizen suit authorized and described in the preceding subsections was not meant
to “restrict any right which any person (or class of persons) may have under any statute or
common law to seek enforcement of any emission standard or limitation or to seek any
other relief (including relief against the Administrator or a State agency).” I agree with the
majority—and the Sixth and Eleventh Circuits—that this first sentence is “a savings clause
providing only that the citizen suit provision does not preempt any other available
remedies.” City of Jacksonville, 348 F.3d at 1317–18; accord United States v. Tenn. Air
Pollution Control Bd., 185 F.3d 529, 532 (6th Cir. 1999); Maj. Op. 15.
30
However, I disagree with the United States’ argument that the remainder of
§ 7604(e) only operates as a savings clause. But I also disagree with the majority opinion’s
conclusion that it unequivocally waives immunity from punitive fines. The remainder of
that provision states:
Nothing in this section or in any other law of the United States shall be
construed to prohibit, exclude, or restrict any State, local, or interstate
authority from—
(1) bringing any enforcement action or obtaining any judicial
remedy or sanction in any State or local court, or
(2) bringing any administrative enforcement action or
obtaining any administrative remedy or sanction in any
State or local administrative agency, department or
instrumentality,
against the United States, any department, agency, or instrumentality thereof,
or any officer, agent, or employee thereof under State or local law respecting
control and abatement of air pollution. For provisions requiring compliance
by the United States, departments, agencies, instrumentalities, officers,
agents, and employees in the same manner as nongovernmental entities, see
section 7418 of this title.
§ 7604(e).
Unlike the first sentence of subsection (e), this remaining text does more than
operate as a savings clause; it empowers state, local, and interstate authorities to bring
enforcement actions in state court and state administrative proceedings. The United States
thus is incorrect in arguing that this second part of subsection (e) does no more than
reiterate the first sentence of the subsection. By authorizing state, local, and interstate
authorities to pursue particular avenues of redress, this later language waives federal
sovereign immunity for certain suits by those entities regardless of where they pursue their
31
permitted claims. The text makes clear that Congress intended to give state, local, and
interstate authorities the ability to pursue those claims in both judicial and administrative
proceedings. Nonetheless, that still leaves the separate question of what rights exist and,
for purposes of this appeal, what relief those entities can seek against the United States.
To be sure, in isolation, authority to “obtain[] any judicial remedy or sanction,”
§ 7604(e)(1), could encompass authority to seek punitive fines. But as DOE recognized,
language authorizing “any . . . sanction” “carries no necessary implication that a reference
to punitive fines is intended.” 503 U.S. at 621 (emphasis added). That the phrase “any
judicial remedy or sanction” in § 7604(e)(1) could refer to punitive fines does not
necessarily mean that is what Congress intended the phrase to mean. See City of
Jacksonville, 348 F.3d at 1318 (relying on DOE to conclude that “the phrase ‘remedy or
sanction,’ by itself, ‘carries no necessary implication that a reference to punitive fines is
intended’” (quoting 503 U.S. at 621)). Further contextual analysis is needed to understand
the phrase’s meaning.
When considering the meaning of statutory text—especially in the context of
understanding whether it contains the sort of unequivocal language required to constitute
a waiver of sovereign immunity—words cannot be considered in isolation, but must be
understood according to the purpose and context in which the text appears. The Supreme
Court’s analysis in Dolan v. United States Postal Service, 546 U.S. 481 (2006), is
instructive on this point. There, the Supreme Court was confronted with the task of
determining whether a plaintiff’s claims fell within an exception to the Federal Tort Claims
Act’s waiver of sovereign immunity from suits involving torts committed by federal
32
employees. Id. at 483. The Supreme Court was required to determine the meaning of the
phrase “negligent transmission,” as used in 28 U.S.C. § 2680(b), and observed that
“considered in isolation,” it “could embrace a wide range of negligent acts committed by
the Postal Service” given that “in ordinary meaning and usage, transmission of the mail is
not complete until it arrives at the destination.” Id. at 486. But the Court recognized that
“[t]he definition of words in isolation . . . is not necessarily controlling in statutory
construction. A word in a statute may or may not extend to the outer limits of its definitional
possibilities.” Id. Instead, the proper “[i]nterpretation of a word or phrase depends upon
reading the whole statutory text, considering the purpose and context of the statute, and
consulting any precedents or authorities that inform the analysis.” Id. Doing so in Dolan
led the Court to interpret “negligent transmission” more narrowly than considering the
phrase in isolation would have allowed. Id. at 486–90.
Applying these standard principles here, § 7604(e) contains “no language indicating
whether the phrase should be read broadly to encompass punitive penalties or narrowly to
exclude these penalties.” City of Jacksonville, 348 F.3d at 1319. The majority opinion
overemphasizes § 7604(e)’s use of the modifier “any” to bolster its contrary view.
However, that is only one part of the phrase and does not aid in understanding the meaning
of the key words “remedy” and “sanction,” both of which taken in isolation have many
possible interpretations. See DOE, 503 U.S. at 621; see also Booth v. Churner, 532 U.S.
731, 737–38 (2001) (observing that the various dictionary definitions of “remedy” did not
provide “anything conclusive” regarding the meaning of a statute’s reference to “available”
“administrative remedies”). What is more, the phrase at issue in DOE also contained the
33
same modifier “any,” yet the Supreme Court still determined a narrower reading of the
nouns it modified—“process and sanction”—was warranted. See 33 U.S.C. § 1323(a); cf.
DOE, 503 U.S. at 620–27. So while “any” has a role, it can only refer to a “remedy or
sanction” that may be levied against the United States under the CAA. As the Eleventh
Circuit correctly concluded, § 7604(e)’s “lack of any clarifying language” as to the
meaning of “remedy or sanction” “does not give this Court the authority to presume that
Congress intended the broadest conceivable definition of ‘remedy or sanction.’” City of
Jacksonville, 348 F.3d at 1319. That’s particularly true within the scope of determining
whether statutory language waives sovereign immunity because such language “will be
strictly construed, in terms of its scope, in favor of the sovereign,” i.e., in favor of
preserving immunity. Lane, 518 U.S. at 192.
Looking to the context in which the terms “remedy” and “sanction” appear, one
need look no further than to the last sentence of the same subsection to identify a
meaningful limitation: “For provisions requiring compliance by the United States . . . in
the same manner as nongovernmental entities, see section 7418 of this title.” § 7604(e).
Thus, § 7604(e), in context, explicitly informs readers that the two statutes bear on each
other. In holding otherwise, the majority opinion trivializes the essential information
provided in this cross-reference. That is to say, whatever authorization § 7604(e)
provides—including the scope of when a state can pursue “any judicial remedy or
sanction”—must be understood in light of what duties the United States has in the first
place, which are set out in § 7418.
34
And this makes sense. Section 7604, and subsection (e) in particular, address various
logistical aspects of how and where the United States can be held accountable; it’s an
enforcement provision. When it enacted § 7604(e), Congress expanded upon what had
previously been available in that regard. In so doing, however, it did not alter which
substantive and procedural aspects of the Act require compliance by the United States. That
information is instead set out in § 7418. Section 7604(e)’s language authorizes states to
obtain any judicial remedy or sanction to which the United States is liable under § 7418,
but it extends no further. No state can “obtain[] any judicial remedy or sanction” against
the United States for something § 7418 does not oblige it to do.
Once this interconnectedness between the statutes is understood, the remaining
analysis is straightforward. The phrase “obtaining any judicial remedy or sanction” as used
in § 7604(e) must be understood in terms of what compliance is required of the United
States through § 7418. As discussed earlier, § 7418(a) subjects the United States to
“process and sanctions,” a phrase that encompasses coercive remedies, “to the exclusion
of punitive fines.” 503 U.S. at 623. Accordingly, § 7604(e)’s use of the phrase “judicial
remedy or sanction” is similarly limited in scope. Put another way, because § 7418(a) does
not subject the United States to the Act’s requirement that violators of its standards pay
punitive fines, states have no jurisdictional basis to obtain any judicial relief or sanctions
in the form of punitive fines under § 7604(e). This construction interprets the statutory
language not in isolation, but by “reading the whole statutory text, considering the purpose
and context of the statute, and consulting any precedents or authorities that inform the
analysis.” Dolan, 546 U.S. at 486; accord City of Jackson, 348 F.3d at 1319–20 (observing
35
that this construction “interprets [§ 7604(e)] in light of the remainder of the statute of which
it is a part,” and “declin[ing] the invitation to find that Congress intended to waive the
federal government’s sovereign immunity from punitive penalties” (quoting Tenn. Air
Pollution, 185 F.3d at 534). Accordingly, § 7604(e) cannot be the basis for the district court
to have jurisdiction over North Carolina’s claim for a punitive fine against the United
States.
The majority opinion criticizes the foregoing as inconsistent with the legislative
history of § 7604(e). As a matter of first principles, statutory interpretation ordinarily
begins and ends with the text of the statute, which includes its statutory context. See Am.
Tobacco Co. v. Peterson, 456 U.S. 63, 68 (1982) (“As in all cases involving statutory
construction, our starting point must be the language employed by Congress, and we
assume that the legislative purpose is expressed by the ordinary meaning of the words used.
Thus, absent a clearly expressed legislative intention to the contrary, that language must
ordinarily be regarded as conclusive.” (internal quotation marks and citations omitted));
Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 666 (2007) (“[T]he
meaning––or ambiguity––of certain words or phrases may only become evident when
placed in context[.]” (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132–33 (2000)). Nontextual sources may be confirmatory of that textual understanding—
such as how the Supreme Court used legislative history in Kosak v. United States, 465 U.S.
36
848, 855 (1984). 2 But the Supreme Court has clearly established that legislative history can
never be used to identify a waiver not clearly provided for in the statutory text: “A statute’s
legislative history cannot supply a waiver that does not appear clearly in any statutory text;
the unequivocal expression of elimination of sovereign immunity that we insist upon is an
expression in statutory text.” Lane, 518 U.S. at 192 (internal quotation marks omitted)
(quoting Nordic Vill., 503 U.S. at 37). Although § 7604(e)’s legislative history reveals
Congress’ broad purpose of expanding the available enforcement tools for States, that
history cannot be the basis for construing the enacted statutory language more broadly than
the text and context of the statute permits. For the reasons set out earlier, the text and
context of § 7604(e) does not contain a clear statement waiving federal sovereign immunity
from punitive fines.
II.
A statute must unequivocally waive federal sovereign immunity before a court is
entitled to conclude that Congress intended to waive that immunity. For purposes of this
case, no such unequivocal text appears in §§ 7418(a) or 7604(e) that waives immunity from
punitive fines. For that reason, the majority opinion errs in finding that the Act waives the
2
In Kosak, the Supreme Court first undertook the textual and contextual analysis,
reaching its conclusion as to the meaning of the statutory language at issue. 465 U.S. at
852–55. Only after that analysis, did it comment on the statute’s “meager” legislative
history providing “support[]” for the “interpretation we have derived from its language and
context.” Id. at 855.
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United States’ immunity from punitive penalties. I respectfully dissent from that part of the
majority opinion.
38