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Administrative – State can sue U.S. for Clean Air Act violation

Where a provision in the Clean Air Act waived the United States’ sovereign immunity as to “any … remedy or sanction,” North Carolina could sue the United States to recover an unpaid civil penalty it assessed when a Marine Corps facility failed an air quality compliance test.


After a Marine Corps facility failed an air quality compliance test, and so violated its state permit, North Carolina assessed a civil penalty. The facility refused to pay, so North Carolina brought suit in state court. 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.


The United States removed this case pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which provides that “[a] civil action … that is commenced in a State court and that is against … the United States or any agency thereof” may be transferred to federal district court. The United States’ defense in this case — sovereign immunity — squarely implicates § 1442(a)(1)’s core purpose.

North Carolina nonetheless argues that 42 U.S.C. § 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. 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.

The parties agree that “when two statutes are capable of coexistence,” a court cannot say that one nullifies the other “absent a clearly expressed congressional intent” to that effect. These “two statutes are capable of coexistence.” Section 7604(e) does not require actions brought in state court to remain there. Rather, § 7604(e) codifies Congress’s intent to “authorize States to sue Federal facilities in State courts, and to subject such facilities to State sanctions.” Removal in no way impedes those grants of authority. Congress has certainly not expressed, let alone “clearly expressed,” a contrary intent.

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.

Multiple courts have adopted North Carolina’s view of § 7418(a)’s waiver of sovereign immunity. Similarly, the U.S. Comptroller General has maintained that a federal agency may be compelled “to pay a [punitive] civil penalty imposed” by a local air pollution control board. Nonetheless, the court 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 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. The legislative history of § 7604(e) entirely accords with this unambiguous text.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.


(Agee, J.): I agree with the majority opinion that § 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 contains an unequivocal waiver of sovereign immunity for claims seeking purely punitive relief. Therefore, I respectfully concur in part and dissent in part.

State of North Carolina ex rel. Biser v. United States of America (Lawyers Weekly No. 001-149-21, 38 pp.) (Diana Gribbon Motz, J.) (G. Steven Agee, concurring in part and dissenting in part) Case No. 20-1783. July 29, 2021. From E.D.N.C. (Terrence W. Boyle, J.) Sarah Gardner Boyce for Appellants. Robert Lundman for Appellees.

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