Abstract

This Article argues that the pattern of legislative reversals of Supreme Court decisions indicates that the judiciary has been interpreting the environmental statutes by applying principles of statutory construction that are ill suited to a public law regime. The Article describes why this has impeded the implementation and enforcement of public law, focusing on the DOE v. Ohio decision and the traditional rule that waivers of sovereign immunity should be narrowly construed. Part I discusses the history of efforts to subject public entities to the environmental laws. Part II examines enforcement problems at federal facilities. The article then analyzes the Supreme Court's opinion in DOE v. Ohio in part III, and in part IV discusses the enactment of the Federal Facility Compliance Act. The article finds that, although Congress has responded to narrow judicial interpretations of waivers of sovereign immunity by enacting clarifying legislation, such narrow readings have impeded the effective implementation of the environmental statutes and forced greater accommodation of interests that did not prevail in the initial legislative process.

Keywords

Environmental law, Legal formalism, Law -- Interpretation & construction, Government liability