Judges: Robert A. Butterworth Attorney General
Filed Date: 7/13/1994
Status: Precedential
Modified Date: 7/5/2016
Ms. Virginia B. Wetherell Secretary, Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dear Ms. Wetherell:
You ask substantially the following question:
Does Chapter
In sum:
Chapter
The Supremacy Clause of the United States Constitution has been interpreted by the courts to preclude a state from requiring a federal employee to be licensed by that state in the absence of a waiver.1 The federal government, however, has waived federal supremacy under several environmental protection statutes.2
Based upon such waivers, the Board of Professional Engineers has stated that federal engineers in this state must comply with the licensure requirements of Chapter
Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government . . . (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, 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 water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges. The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State, or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner.
As an exception from the Supremacy Clause, the above waiver should be narrowly construed.4 While the Clean Water Act subjects the federal government to state requirements respecting the abatement and control of water pollution, the courts have held that Congress intended the word "requirements" to relate only to pollution standards that a state might impose as part of its environmental program.5
Chapter
No person other than a duly registered engineer shall practice engineering or use the name or title of "registered engineer"6 or any other title, designation, words, letters, abbreviations, or device tending to indicate that such person holds an active registration as an engineer in this state.
Section
The Legislature has stated that the purpose of the licensure requirement in Chapter
While the federal government has waived its supremacy for purposes of state requirements relating to abatement and control of water pollution, no federal law has been brought to my attention that subjects federal employees, such as those of the Corps, to the licensing requirements in Chapter
Section
All applications for a Department permit shall be certified by a professional engineer registered in the State of Florida except . . . where professional engineering is not required by Chapter
However, as discussed in State of Florida, Department of Environmental Regulation v. Silvex Corporations,8 the legislative history and case law interpreting analogous waivers have strictly defined the type of state "requirements" respecting the abatement and control of water pollution that may be applied under the waiver of federal sovereignty. Such requirements would include, for example, state pollution standards or limitations, compliance schedules, emission standards, and control requirements. A requirement that applications for permits be certified only by licensed Florida engineers does not relate to water pollution control but rather relates to the regulatory power of the state over licensed professionals.
Accordingly, I am of the opinion that the waiver of sovereignty under
Sincerely,
Robert A. Butterworth Attorney General
RAB/tjw
This Constitution, and the laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
And see, Johnson v. Maryland,
richard-mitzelfelt-director-of-the-environmental-improvement-division-of , 903 F.2d 1293 ( 1990 )
STATE OF FLA. DEPT. OF ENVIR. REG. v. Silvex Corp. , 606 F. Supp. 159 ( 1985 )
Johnson v. Maryland , 41 S. Ct. 16 ( 1920 )
Arizona v. California , 51 S. Ct. 522 ( 1931 )
United States Department of Energy v. Ohio , 112 S. Ct. 1627 ( 1992 )
NEW YORK ST. DEPT. OF ENV. CONS. v. Dept. of Energy , 772 F. Supp. 91 ( 1991 )