Under common law, the government could not be sued. In many instances, including most federal environmental statutes, the United States has waived its sovereign immunity to suit. The Supreme Court has stated that such waivers must be unequivocal, are to be construed in favor of the government, and should not be enlarged beyond what the language of the waiver requires.
Both the Clean Water Act (CWA) and the Resource Conservation and Recovery Act (RCRA) include provisions which allow citizens to sue any “person” for violations of those statutes. In addition, both statutes state that federal agencies are subject to and must comply with all federal, State, interstate, and local requirements regarding water pollution and solid waste management. Under both the CWA and RCRA, an equivalent State-law program may be authorized by EPA to operate in the State in place of the federal statute.
In 1986, the State of Ohio sued the Department of Energy (DOE) regarding DOE’s operation of a uranium-processing facility in Fernald, Ohio. That case was brought in the United States District Court, where Environmental Defense Section attorney J. Steven Rogers represented DOE. The parties agreed that the CWA and RCRA require federal agencies to obtain permits under those statutes like any other entities, and that they are subject to injunctive relief. However, the Supreme Court in Department of Energy v. Ohio agreed with the United States that the federal government has not waived sovereign immunity against claims for “punitive penalties” levied on account of past violations of those statutes or of state statutes enacted in place of the CWA or RCRA.