No State Waiver of Immunity Under RCRA or CERCLA

An Oregon district court has found that the state did not waive its sovereign immunity from suit under the Resource Conservation and Recovery Act (“RCRA”) or the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), either by consenting to suit in analogous state superfund statutes, or “by assuming the role of the federal government by administering and enforcing the RCRA program.”

Burns v. MBK Partnership, No. Civ.03-3021-HO, 2005 WL 552262 (D. Or. Mar. 2, 2005). The latter holding may be inconsistent with other decisions permitting Congress to impose waivers when states accept a “gratuity” like the authority to regulate under a federal statute.

Although Congress explicitly abrogated states’ sovereign immunity in both RCRA and CERCLA, that abrogation has been held to be invalid because the statutes were passed under the Commerce Clause, which does not give Congress the power to abrogate states’ immunity. The cross-plaintiffs argued, however, that those statutes could impose a waiver on the states.

The court relied on College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 680 (1999), which held that states do not constructively waive their immunity by voluntarily participating in a field that is subject to federal regulation. However, “assuming the role of the federal government” and “administering and enforcing” a federal statute are quite different activities from merely engaging in a lawful activity, like interstate commerce in College Savings Bank, that is subject to federal law. In the context of the Telecommunications Act, some courts have held that states can be forced to waive their sovereign immunity when they participate in regulatory activity that would otherwise be foreclosed to them by federal occupation of the field. See, e.g., MCI Telecommunications Corp. v. Illinois Bell Telephone Co., 222 F.3d 323, 342 (7th Cir. 2000), cert. denied, 531 U.S. 1132 (2001); Sarah Rispin, Cooperative Federalism and Constructive Waiver of State Sovereign Immunity, 70 Univ. of Chi. Law Rev. 1639, 1640 & n.10 (2003). Those courts find that accepting the invitation to regulate under a federal statute is a “gratuity” like the federal spending that, under College Savings Bank, can come with an imposed waiver of sovereign immunity.

However, the Burns court did not discuss the gratuity theory. Nor did it explain how the state was assuming the role of the federal government or what activities were at issue. Thus, it is difficult to determine whether Oregon’s activities might be viewed as a regulatory waiver.