State of North Carolina, ex rel. v. United States of America ( 2020 )

forward-looking coercive sanctions and backward-looking punitive ones. DOF, 503 U.S. at 621. It then focused on the CWA’s use of the conjunction “process and sanction,” and reasoned that punitive fines were excluded because the term “process” implied “forward-looking orders enjoining future violations” and enforced through coercive sanctions. /d. at 623. Ultimately, the Court concluded: “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.” /d. Considering the Supreme Court’s construction of “process and sanctions” in DOE v. Ohio and the CAA’s identical language, the Court holds that § 7418(a) does not waive sovereign immunity for punitive sanctions such as the ones sought here. This interpretation accords with the reasoning and conclusion of City of Jacksonville, which the Court again finds persuasive. 348 F.3d at 1315-17. As mentioned above. the State also contends that the state suit provision in § 7604(e) constitutes an immunity waiver for suits seeking to recover civil penalties.’ But again, as cautioned by DOE v. Ohio, the “use of the term [sanction] carries no necessary implication that a reference to punitive fines is intended.” 503 U.S. at 621. The state suit provision explicitly references and incorporates the federal facilities provision, limiting its scope. § 7604(e) (“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 [the federal facilities provision] of this title.”). The Court has concluded that the federal facilities provision excludes punitive sanctions. “Given this finding, without express intent from Congress to indicate The State urges the Court to adopt the reasoning of United States v. Tenn. Air Pollution Control Bd.. 185 F.3d 529 (6" Cir. 1999), which held that § 7604(e) waives sovereign immunity for civil penalties.