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The Clean Air Act (CAA) includes enforcement provisions by which violators of the Act can be held civilly liable for penalties. When federal agencies violate the CAA, however, the Constitution and the sovereign immunity doctrine serve as obstacles to civil enforcement. Federal agencies contend that the Constitution's separation of powers doctrine, unitary executive theory, and "case or controversy" justiciability requirement bar the United States Environmental Protection Agency (EPA) from proceeding against them in civil enforcement actions. This Article addresses these arguments and examines the executive branch's approach to enforcing the Act against federal agencies. Federal agencies also have asserted the sovereign immunity doctrine as a defense to civil suits by states, local governments, and citizens. This doctrine protects the federal government from lawsuits unless Congress has explicitly waived sovereign immunity in a statute. While there is some evidence that Congress has intended to waive federal immunity in the CAA, federal courts have inconsistently applied such waivers. This Article examines the developing judicial applicability of the CAA's sovereign immunity waiver by comparing its language and legislative history to that of other environmental statutes. This Article provides a similar review of federal employee liability for civil penalties under the CAA and concludes that federal employees also enjoy a qualified common law and statutory immunity. Based upon an evaluation of the obstacles various entities face in bringing a civil suit against a federal agency or an agency's employee, this Article concludes that civil liability is not the optimal means of enforcing the Act and proposes an alternate method of gaining federal facility compliance. It recommends that enforcement authorities and federal agencies establish a negotiation system designed to produce bilateral agreements. Through this system, parties could bargain towards the achievement of the ultimate shared goal of environmental preservation.

GW Paper Series

GWU Law School Public Law Research Paper No. 2013-17; GWU Legal Studies Research Paper No. 2013-17

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