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4th Circuit rules Marine Corps must face lawsuit over refusal to pay air pollution fines

Partially reversing a district court decision, the Fourth Circuit ruled that federal government entities are not immune to lawsuits seeking civil penalties for violating state air pollution laws.

RICHMOND, Va. (CN) — The federal government is not immune from punitive civil penalties under the Clean Air Act, the Fourth Circuit ruled on Thursday.

North Carolina imposed a $8,000 civil penalty against the Cherry Point Marine Corps Air Station in Havelock for failing to pass an air quality compliance test.

But the government refused to pay the penalty and the additional $472 in environmental investigation fees.

The facility had obtained a state-issued permit in 2014 to operate coal-powered steam boilers for heat, which set a cap on the emission of certain hazardous air pollutants. A mandatory compliance test in 2016 revealed that the site “dramatically exceeded” the emissions limit, causing a violation of the permit. 

The state, alongside its Department of Environmental Quality, filed a lawsuit in 2018 against the federal government, Navy, Marine Corps and the 13,164-acre Cherry Point site in order to recover the penalty funds. 

The government defendants later removed the case to federal court and attempted to dismiss the lawsuit, claiming they are immune to punitive civil penalties. 

North Carolina attorneys argued however that the Clean Air Act waives immunity. North Carolina also contested the government’s ability to move the case to federal court and asked to send it back to the state level. 

The district court sided with the government and fully dismissed the case, but the Fourth Circuit on Thursday revived the lawsuit with a partial reversal of that decision. 

“Because the Clean Air Act does not preclude removal but does waive sovereign immunity as to the penalty at issue here, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion,” wrote U.S. Circuit Judge Diana Gribbon Motz in a 20-page opinion

Motz, a Bill Clinton nominee, said a provision of the Clean Air Act that the state relied on in its arguments does not prohibit the government from removing the case to the federal level.

It does, however, “constitute an unambiguous waiver of sovereign immunity that encompasses this case,” she said. 

Judge Robert Bruce King, also a Clinton nominee, joined the majority opinion on Thursday.

After reviewing legislative history related to the Clean Air Act, the Richmond-based court found that Congress intended to grant states “robust tools” for air pollution law enforcement.

“Congress sought to remove all barriers preventing states from 'obtaining any judicial remedy or sanction' against federal facilities, including penalties that Congress believed were necessary to deter noncompliance,” Motz wrote. 

 Judge G. Steven Agee wrote his own opinion, partially dissenting and concurring with the majority decision.

The George W. Bush nominee said he agreed with his colleagues’ decision to allow the government to move the case to federal court.

“However, I disagree with its conclusion that the Clean Air Act ('CAA' or 'the Act') contains an unequivocal waiver of sovereign immunity for claims seeking purely punitive relief,” he wrote in an 18-page opinion. 

Agee said he would affirm the lower court’s decision, arguing that the court lacks jurisdiction to enforce punitive penalties levied against the government.  

“But just because North Carolina wants to recover punitive relief from the United States does not mean it can. As a sovereign, the United States enjoys immunity from suit unless it has consented to be sued,” he wrote, adding that the Marine Corps station has since replaced the hazardous boilers.

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Categories:Appeals, Courts, Environment, Government

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