State of Missouri v. St. Louis Sewer District

Jun 9: In the U.S. Court of Appeals, Eighth Circuit, Case No. 08-3399. The United States and the State of Missouri filed this enforcement action against the Metropolitan St. Louis Sewer District (District) under the Clean Water Act (Act). They sought Federal civil penalties and injunctive relief to limit discharges of untreated wastewater and sewage by the District. The District raised several affirmative defenses claiming financial inability to comply with the Act's requirements and filed two counterclaims. The State then moved to strike the District's affirmative defenses and to dismiss its counterclaims, arguing that they were barred by sovereign immunity and the Eleventh Amendment.

The district court denied the motion and Missouri appeals, arguing that it did not waive its sovereign immunity by filing this action since the Act requires its participation. The Appeals Court affirmed the district court decision. The Appeals Court said, "Though Missouri did not add any state law claims to those brought by the United States, the fact is that it affirmatively joined in asserting the federal claims. As a result the State will be entitled to participate in negotiating and enforcing any judgment or consent decree entered against the District. Were the State to assert the defense of sovereign immunity against the District's counterclaims while exercising the rights of a plaintiff, we would be condoning the selective invocation of immunity that the Supreme Court recognized as unfair in Lapides."

Further, the Appeals Court said, "Section 309(e) undoubtedly compels a state to become a party in federal court, but it does not compel the state to take any action that would waive its sovereign immunity. A state required to join a federal enforcement action under § 309(e) can preserve its potential sovereign immunity defense by aligning as a defendant and taking no other actions inconsistent with the assertion of sovereign immunity."

Access the complete opinion (click here).