4th Circuit Issues Mixed Decision in North Carolina Environmental Case Against Marines

The United States Marine Corps cannot take advantage of sovereign immunity to evade an $8,000 environmental fine levied against it by the state of North Carolina, according to the Fourth Circuit Court of Appeals. The fine originated from an air quality permit violation at Marine Corps Air Station Cherry Point.

The opinion, authored by Judge Diana Gibbon Motz, was issued Thursday, and partially overruled the district court. The appellate panel sided with the Marines as to where the case should be heard – federal, as opposed to state court – but favored North Carolina’s interpretation of the Clean Air Act’s waiver of sovereign immunity, a doctrine which normally bars suits against government entities.

Key to both of the issues heard by the Fourth Circuit is ยง 7604(e) of the Clean Air Act, which North Carolina argued both bars the removal of suits against the federal government under the Act to federal court and waives sovereign immunity.

The statute states that “Nothing in this section or in any other law of the United States shall be construed to prohibit, exclude, or restrict any State, local, or interstate authority from…bringing any enforcement action…against the United States…under State or local law respecting control and abatement of air pollution.”

The case was originally filed in state court by North Carolina but was subsequently removed by the federal government to federal court, the opinion explained. The state then moved for remand of the case back to state court, arguing that the Clean Air Act bars removal to federal court by implication. The Fourth Circuit panel disagreed, finding that neither the statute’s text, context, nor legislative history support an implied bar on removal.

The Fourth Circuit did find that the same statute clearly waived the Marine Corps’ right to sovereign immunity, even for punitive penalties such as the one at issue in this case, and rejected the Marines’ arguments as to the contrary.