The Sovereign Is Immune

In 1976, President Jimmy Carter issued an executive order directing all federal agencies to comply with environmental laws, but a tenacious doctrine of sovereign immunity-that the government can not be held liable for damages caused by its official actions-hindered real enforcement. Ten years later, Ronald Reagan issued yet another executive order, reiterating the federal cleanup mandate, but during the same years the Justice Department ruled that one branch of the federal government could not sue another, which further stymied the Environmental Protection Agency's enforcement efforts.

The Resource Conservation Recovery Act (RCRA) in 1984, and amendments to the Superfund law (CERCLA) in 1986, brought the DoD and the Department of Energy more specifically under those laws. In 1989, responding to the unprecedented conviction of three civilian DoD employees for illegal hazardous waste disposal, Secretary of Defense Dick Cheney called for enhanced DoD environmental accountability. But not until the passage of the 1992 Federal Facilities Compliance Act did Congress clarify federal, state and local environmental jurisdiction over DoD.

The FFCA aimed to place DoD on the same regulatory footing as industry, but legally the federal government still holds a trump card, known as the discretionary function exception or DFE. The DFE, added by amendment to the Federal Tort Claims Act (FTCA) in 1948, persists as one of the last surviving remnants of sovereign immunity. The discretionary function exception limits accountability for acts performed under federal policy, by a federal agency, or an employee of the government.