  Administrative Assessment of Civil Penalties Against Federal
               Agencies Under the Clean Air Act

T he C lean Air A ct authorizes the E nvironm ental Protection A gency adm inistratively to assess civil
    penalties against federal agencies for violations of the Act or its im plem enting regulations.

Separation of pow ers concerns do not bar E P A ’s exercise o f this authority, because it can be exercised
   consistent with the C onstitution.


                                                                                                 July 16, 1997


                       M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
                                E n v ir o n m e n t a l P r o t e c t io n A g e n c y
                                                        and

                                          the    G eneral C ounsel
                                         D epa r tm en t o f D efen se



   Y o u have asked for our opinion resolving a dispute between the Environmental
Protection Agency (“ EPA” ) and the Department of Defense ( “ DOD” ) con­
cerning whether the Clean Air Act (“ the Act” ), 42 U.S.C. §§ 7401-7671q (1994),
authorizes EPA administratively to assess civil penalties against federal agencies
for violations of the Act or its implementing regulations, and if so, whether this
authority can be exercised consistent with the Constitution.1 Applying the “ clear
statement” rule of statutory construction, which is applicable where a particular
interpretation or application of an Act of Congress would raise separation of
powers concerns, we conclude that the Act does provide EPA such authority. We
also conclude that these separation of powers concerns do not bar EPA’s exercise
of this authority because it can be exercised consistent with the Constitution.

                                                          I.

                                                         A.

   EPA’s authority to initiate enforcement proceedings under the Clean Air Act
is set forth in section 113 of the Act, entitled “ Federal Enforcement,” 42 U.S.C.

   1 See Letter for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jonathan Z. Cannon,
Assistant Administrator (General Counsel), EPA (Oct 3, 1995), enclosing Memorandum on Assessment o f Adm inistra­
tive Penalties Against Federal Facilities under the Clean A ir Act (Sept 11, 1995) ( “ EPA M emorandum” ), Letter
for W alter Dellinger, from Judith A Miller, General Counsel, DOD (Dec 15, 1995), enclosing DOD Response
Memorandum • Assessment o f Administrative Penalties Against Executive Branch Agencies Under Section II3{d) o f
the Clean A ir Act (Dec 15, 1995) ( ‘‘DOD Response” ), Letter for Christopher Schroeder, Acting Assistant Attorney
General, Office o f Legal Counsel, from Jonathan Z Cannon (Oct 18, 1996), enclosing EPA Memorandum in Reply
to Department o f Defense Concerning Administrative Assessment o f Civil Penalties Against Federal Facilities Under
the Clean Air Act (Sept. 16, 1996) ( “ EPA Reply” )


                                                         109
                           O pinions o f the O ffice o f L egal C ounsel in V olum e 21


§7413 (1994). As summarized in section 113(a)(3),2 section 113 provides that
when EPA finds that “ any person has violated, or is in violation o f ’ the Act
or its implementing regulations, EPA may issue an administrative penalty order
or a compliance order, bring a civil action, or request the Attorney General to
commence a criminal action. The questions presented to us are whether the Act
authorizes EPA to issue an administrative penalty order to a federal agency under
section 113(d), and if so, whether that authority can be exercised consistent with
the Constitution.3
   The Act authorizes EPA to issue two kinds of administrative penalty orders.
Section 113(d)(1) authorizes EPA to “ issue an administrative order against any
person assessing a civil administrative penalty of up to $25,000, per day of viola­
tion” when EPA “ finds that such person” has violated the Act or its imple­
menting regulations. 42 U.S.C. § 7413(d)(1). Such a penalty may be assessed only
after opportunity for a hearing on the record in accordance with the Administrative
Procedure Act (“ APA” ), 5 U.S.C. §§554, 556 (1994). 42 U.S.C. § 7413(d)(2).
   In addition, section 113(d)(3) authorizes EPA to implement a field citation pro­
gram under which “ persons” who commit minor violations of the Act or the
regulations may receive field citations assessing civil penalties not to exceed
$5,000 per day. Id. § 7413(d)(3). Field citations may be issued without a hearing,
but persons who have received citations may request a hearing. “ Such hearing
shall not be subject to [the APA], but shall provide a reasonable opportunity to
be heard and to present evidence.” Id. The Act provides for the two types of
administrative penalty orders to be litigated in the courts in a variety of ways.
Persons against whom either kind o f penalty is imposed may seek judicial review
in federal district court, and in any such proceeding the United States may seek
an order requiring that the penalties be paid. Id. § 7413(d)(4). In addition, if a
person fails to pay any penalty after receiving an order or assessment from EPA,
“ the Administrator shall request the Attorney General to bring a civil action in
an appropriate district court to enforce the order or to recover the amount ordered
or assessed.” Id. § 7413(d)(5).

                                                        B.

  EPA presents a straightforward position that section 113(d) authorizes EPA to
assess administrative penalties against federal agencies. That subsection authorizes
EPA to assess penalties against “ persons.” Although the term “ person” is not
   2 See 42 U.S.C § 7 4 l3 (a )(3 ) (where it finds a violation, EPA may “ (A) issue an administrative penalty order
in accordance with subsection (d) o f this section, (B) issue an order requiring such person to comply with such
requirement o r prohibition, (C) bring a civil action in accordance with subsection (b) of this section or section
7605 o f this title, or (D) request the Attorney G eneral to commence a criminal action m accordance with subsection
(c) o f this section” )
   3 W e intend that o u r resolution o f the questions concerning section 113(d) will also apply to the comparable
authority provided to EPA with respect to mobile sources by sections 205(c) and 211(d)(1) o f the Act, 42 U.S.C.
§§ 7524(c), 7545(d)(1) (1994). See EPA Memorandum at 2-3.


                                                        110
    Adm inistrative A ssessm ent o f C ivil P enalties A gainst F ederal A gencies Under the Clean A ir A ct


defined in section 113, which is the Act’s federal enforcement section, the term
is defined in the Act’s general definitions section, section 302(e), which provides
that the term includes “ any agency, department, or instrumentality of the United
States and any office, agent or employee thereof.” 42 U.S.C. § 7602(e) (1994).
EPA concludes that “ [s]ince federal facilities expressly fall within the Act’s defi­
nition of person, [section 113(d)] unambiguously demonstratefs] that EPA has
authority to issue administrative penalties against federal facilities.” EPA Memo­
randum at 3.
   DOD argues in response that EPA’s interpretation would raise significant sepa­
ration of powers concerns, because it would authorize civil litigation proceedings
between federal agencies, and therefore it can be adopted only if there is an
express statement of congressional intent to provide such authority that is suffi­
cient to meet the high standard applied by the courts and this Office with respect
to statutory interpretation questions involving separation of powers concerns.4
DOD argues that “ [s]ection 113(d) fails to provide clear and express authority
for EPA to impose administrative penalties against Executive Branch agencies.”
DOD Response at 4. DOD rejects EPA’s argument that the inclusion of federal
agencies in the Act’s general definition of “ person” constitutes “ a sufficiently
express statement to allow [EPA] to exercise enforcement authority against other
Executive Branch agencies.” Id. at 5.

                                                         II.

   We agree with DOD that the interpretation of the Clean Air Act advanced by
EPA — that EPA is authorized to initiate enforcement proceedings under section
 113(d) against federal agencies — raises substantial separation of powers concerns,
thus warranting application of the clear statement principle.
   in 1994, this Office was asked whether the Department of Housing and Urban
Development ( “ HUD” ) has the authority under the Fair Housing Act to initiate
enforcement proceedings against other federal agencies. We concluded that such
an interpretation of the Fair Housing Act would raise substantial separation of
powers concerns “ relat[ing] to both the President’s authority under Article II of
the Constitution to supervise and direct executive branch agencies and the Article
III limitation that the jurisdiction of the federal courts extends only to actual cases
and controversies.” Fair Housing Act Opinion, 18 Op. O.L.C. at 105. We stated
that “ [w]ith respect to the Article III issue, this Office has consistently said that
‘lawsuits between two federal agencies are not generally justiciable,’ ” id. at 106

   4See DOD Response at 4 ( “ The assessment o f administrative penalties against Executive Branch agencies by
EPA is based on a statutory scheme that contemplates judicial intervention into what should be a purely Executive
Branch function, thus raising significant constitutional separation o f powers concerns, warranting the high standard
o f review ” ) (citing Authority o f Department o f Housing and Urban Development to Initiate Enforcement Actions
Under the Fair Housing Act Against Other Executive Branch Agencies, 18 Op O L C 101 (1994) (“ Fair Housing
Act Opinion” )


                                                        in
                    O pinions o f the O ffice o f L egal C ounsel m Volum e 21


(quoting Constitutionality o f Nuclear Regulatory Commission’s Imposition o f Civil
Penalties on the Air Force, 13 Op. O.L.C. 131, 138 (1989) (“ NRC Opinion” )),
and that “ [w]ith respect to Article II, we have indicated that construing a statute
to authorize an executive branch agency to obtain judicial resolution of a dispute
with another executive branch agency implicates ‘the President’s authority under
Article II of the Constitution to supervise his subordinates and resolve disputes
among them.’ ” Id. (quoting Review of Final Order in Alien Employer Sanctions
Cases, 13 Op. O.L.C. 370, 371 (1989)).
  We observed in our Fair Housing Act opinion that these separation of powers
concerns

        are the essential backdrop for our analysis of whether the Fair
        Housing Act authorizes HUD to initiate enforcement proceedings
        against other executive branch agencies. Like the Supreme Court,
        we are “ loath to conclude that Congress intended to press ahead
        into dangerous constitutional thickets in the absence of firm evi­
        dence that it courted those perils.”

Id. at 106-07 (quoting Public Citizen v. Department o f Justice, 491 U.S. 440,
466 (1989)). Accordingly, we applied a clear statement rule and concluded that
the statute did not provide HUD this authority:

           Applying the standard the Supreme Court has used when a par­
        ticular interpretation or application of an Act of Congress would
        raise separation of powers or federalism concerns, we believe that
        because substantial separation of powers concerns would be raised
        by construing the Act to authorize HUD to initiate enforcement pro­
        ceedings against other executive branch agencies, we cannot so con­
        strue the Act unless it contains an express statement that Congress
        intended HUD to have such authority. Because the Act does not
        contain such an express statement, we conclude that it does not
        grant HUD this authority.

Id. at 101.
   Our insistence in the Fair Housing Act Opinion that the statute must ‘‘contain[ ]
an express statement that Congress intended HUD to have such authority” was
consistent with a long line of opinions of the Supreme Court and this Office that
require a clear statement of congressional intent when separation of powers or
federalism concerns would be raised. Many of these opinions are cited in an
opinion that we issued subsequent to the Fair Housing Act Opinion. See Applica­
tion o f 28 U.S.C. §458 to Presidential Appointments o f Federal Judges, 19 Op.
O.L.C. 350 (1995) (concluding that 28 U.S.C. §458 (1994), which prohibits
appointment or employment of relatives of judges in same court, does not apply

                                              112
    A d m inistrative A ssessm ent o f C ivil P enalties'A gainst F ederal A g en cies Under the Clean A ir A ct


to presidential appointments of judges). We stated in that opinion that “ [g]iven
the central position that the doctrines of federalism and separation of powers
occupy in the Constitution’s design, [the clear statement rule] serves to ‘assure[]
that the legislature has in fact faced, and intended to bring into issue, the critical
matters’ of the balance of power among the three branches of the federal govern­
ment, in the context of separation of powers, and between the federal and state
governments, in the context of federalism.” Id. at 352 (quoting Gregory v.
Ashcroft, 501 U.S. 452, 461 (1991)). See also Will v. Michigan Dep't o f State
Police, 491 U.S. 58, 65 (1989); United States v. Bass, 404 U.S. 336, 349 (1971).

                                                          III.

   Based on the foregoing discussion, we must find a clear statement of congres­
sional intent before we can conclude that the Clean Air Act authorizes EPA to
initiate enforcement proceedings against other executive branch agencies. As dis­
cussed below, we believe that the statutory text provides a very strong basis for
finding a clear statement of such intent and that this conclusion is fully supported
by the legislative history of the Act, particularly the 1977 amendment of the defi­
nition of “ person” to include federal agencies.
   A straightforward review of the relevant provisions of the Clean Air Act’s statu­
tory text supports EPA’s position that the statute gives EPA authority to assess
civil penalties against federal agencies administratively. EPA’s authority under
section 113(d) is available with respect to “ persons” who violate the Act.5 The
term “ person” is defined in section 302(e): “ When used in [the Clean Air Act]
. . . [t]he term ‘person’ includes an individual, corporation, partnership, associa­
tion, State, municipality, political subdivision of a State, and any agency, depart­
ment, or instrumentality o f the United States and any officer, agent, or employee
thereof.” 42 U.S.C. § 7602(e) (emphasis added).
  EPA rests its argument on the plain meaning of these two provisions. EPA
does so with good justification, because read together sections 113(d) and 302(e)
expressly provide that EPA may issue administrative penalty assessments against
federal agencies. We have also reviewed the evolution of the relevant provisions
of the Clean Air Act as reflected by various amendments to the Act over the
years. As discussed below, that history fully supports the conclusion that Congress
contemplated EPA enforcement against other federal agencies.

   5 Section 113(d)(1) provides for assessment o f civil penalties against “ persons” . ‘‘The Administrator may issue
an administrative order against any person           ” 42 U S C § 7413(d)( 1) Section 113(d)(3) achieves the same
result, but uses indirect language “ The Administrator may implement              a field citation program . . . [under]
which field citations        may be issued by officers or employees designated by the Administrator Any person
to whom a field citation is assessed may .        elect to pay the penalty assessment or lo request a hearing on the
field citation ” Id. § 7413(d)(3). The plain language o f these provisions refutes DOD’s position that this language
“ cannot fairly be read to constitute an affirmative grant of authority to issue a field citation against ‘any person ’ ”
DOD Response at 5.


                                                          113
                             O pinions o f the O ffice o f L egal C ounsel in Volum e 21


  The administrative enforcement provisions set forth in section 113(d) were
enacted as part of the Clean Air Act Amendments of 1990 (“ the 1990 Amend­
ments” ), Pub. L. No. 101-549, §701, 104 Stat. 2399, 2677-79. We have reviewed
the legislative history of the 1990 Amendments and have found no discussion
of the application of those provisions to federal agencies. We have not limited
our legislative history review to the 1990 Amendments, however, because the
administrative enforcement authorities provided by those amendments merely
supplemented the enforcement authorities EPA already had with respect to “ per­
sons” under the other provisions of section 113. Thus, Congress’s intent in pro­
viding EPA those other authorities is controlling.
  EPA’s other enforcement authorities under section 113 originated with the Clean
Air Act Amendments of 1970 (“ the 1970 Amendments” ), Pub. L. No. 91-604,
§4(a), 84 Stat. 1676, 1686-87. As with the current version of section 113, the
1970 version authorized federal enforcement against “ persons.” However, at that
time the Act’s definition of “person” did not include agencies of the federal
government.6 The 1970 Amendments also revised section 118 of the Act to make
federal agencies subject to the substantive requirements of the Act: “ [Federal
agencies] shall comply with Federal, State, interstate, and local requirements
respecting control and abatement o f air pollution to the same extent that any per­
son is subject to such requirements.” Id. §5, 84 Stat. at 1689.7 Thus, the 1970
version of section 118 referred only to federal agencies complying with sub­
stantive requirements; it did not contain any language subjecting federal agencies
to enforcement authority.
  In 1977, the definition of “person” was expanded to include “ any agency,
department, or instrumentality of the United States.” Clean Air Act Amendments
of 1977 (“ the 1977 Amendments” ), Pub. L. No. 95-95, § 301(b), 91 Stat. 685,
770. This amendment was contained in the House-passed version of the 1977
Amendments, which was accepted by the conference committee. See H.R. 6161,
§ 113(d), 95th Cong., 1st Sess. (1977) (“ House Bill” ); H.R. Conf. Rep. No. 95-
564, at 137, 172 (1977), reprinted in 1977 U.S.C.C.A.N. 1502, 1517-18, 1552-
53. The committee report accompanying the House Bill expressly stated that the
specific purpose of the expansion of the definition of “ person” was to make it
clear that section 113 enforcement was available with respect to federal agencies:

   6 “ Person” was lim ited to “ an individual, corporation, partnership, association, State, municipality, and political
subdivision o f a State ” Pub. L No 88-206, §9 (e), 77 Stat 392, 400 (1963)
   7The previous version o f section 118, enacted in 1959, merely requested federal agencies to “ cooperate” with
air pollution enforcement control agencies See A ct o f Sept. 22, 1959 ( “ the 1959 Amendments” ), Pub. L No 86-
365, §2 , 73 Stat 646 ( “ It is hereby declared to be the intent o f the Congress that any Federal department or agency
  . . shall, to the extent practicable and consistent with the interests of the United States and within any available
appropriations, cooperate with the Department o f Health, Education, and W elfare, and with any interstate agency
or any State or local government air pollution control agency in preventing or controlling the pollution o f the air
. . . ”).


                                                          114
    A dm inistrative A ssessm ent o f Civil P enalties A gainst F ederal A gencies U nder th e Clean A ir A ct


          Finally, in defining the term “ person” for the purpose of section
          113 of the act to include Federal agencies, departments, instrumen­
          talities, officers, agents, or employees, the committee is expressing
          its unambiguous intent that the enforcement authorities of section
          113 may be used to insure compliance and/or to impose sanctions
          against any Federal violator of the act.

H.R. Rep. No. 95-294, at 200 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1279
(“ House Report” ).8
  In sum, the expansion of the definition of “ person” to include federal agencies,
together with the statement in the House Report that the definitional change was
for the express purpose of subjecting federal agencies to EPA enforcement under
section 113, leave no room for doubt that Congress clearly indicated in 1977 its
intent to authorize EPA to use its section 113 enforcement authorities against fed­
eral agencies.

                                                       IV.

  EPA takes the position that its authority under the Clean Air Act to assess civil
penalties against federal agencies administratively can be exercised consistent with
Articles II and III of the Constitution. EPA bases its position on the view that
the Act

          provides sufficient discretion to the affected parties so that complete
          resolution of the dispute may occur within the Executive Branch,
          up to and including referral to the President of any issues that are
          not otherwise resolved, and the President is not deprived of his
          opportunity to review the matter in dispute.

EPA Memorandum at 1. We agree with EPA’s position. We will discuss the
Article II and Article III issues separately.

                                                       A.

  EPA asserts that it can exercise its administrative enforcement authority under
the Act in a way that is consistent with the President’s supervisory authority under
Article II. EPA emphasizes that the Act

          provides a federal facility with the right to a hearing before final
          assessment of a penalty, and therefore . . . provides federal facili­
  8The quotation from the House Report indicates that the House Bill “ defin[ed] the term ‘person’ for the purpose
of section 113 ” The House Bill accomplished that purpose by amending the A ct’s general definition o f “ person,”
not by creating a special definition applicable only to section 113. See H R 6161, supra, § 113(d).


                                                      115
                    O pinions o f the O ffice o f Legal C ounsel in V olum e 21


       ties with sufficient opportunity to raise any dispute to the President
       where considered appropriate. Nothing in the Act would prevent
       a federal facility from exercising this opportunity to raise any dis­
       pute to the President.

Id. at 5 (footnote omitted). Nor are federal agencies limited to using the hearing
process to raise a dispute to the appropriate level within the executive branch:
federal agencies will have the opportunity to consult with the EPA Administrator
before any assessment is final, see id., and the Attorney General could seek to
resolve the matter if either EPA or the respondent federal agency sought to litigate
the matter, see id. at 6.
   The critical point for constitutional purposes is that the Act does not preclude
the President from authorizing any process he chooses to resolve disputes between
EPA and other federal agencies regarding the assessment of administrative pen­
alties. “ [I]t is not inconsistent with the Constitution for an executive agency to
impose a penalty on another executive agency pursuant to its statutory authority
so long as the President is not deprived of his opportunity to review the matter.”
NRC Opinion, 13 Op. O.L.C. at 136-37.
   DOD attempts to distinguish our NRC Opinion, which concluded that the
administrative enforcement authority of the Nuclear Regulatory Commission
(“ NRC” ) under the Atomic Energy Act, see 42 U.S.C. §2282 (1994), could be
exercised against federal agencies consistent with Article II. DOD suggests that
the statutory regimes are different, arguing principally that they differ with respect
to the Attorney General’s authority to resolve a dispute. It notes that the Atomic
Energy Act contains an express authorization to the Attorney General, in cir­
cumstances where the NRC has requested that the Attorney General institute a
civil action to collect a penalty, “ to compromise, mitigate, or remit such civil
penalties.” 42 U.S.C. §2282(c). See DOD Response at 10-11. DOD then asserts
that the Clean Air Act is different because it ‘‘limits the discretion of the Attorney
General to compromise, mitigate or remit a penalty assessment.” Id. DOD appar­
ently bases that assertion on the language in section 113(d)(5) stating that in any
civil action ‘‘the validity, amount, and appropriateness of such order or assessment
shall not be subject to review.” 42 U.S.C. § 7413(d)(5).
   DOD’s assertion that the Clean Air Act limits the Attorney General’s discretion
is incorrect. Section 113(d)(5) acts as a limitation only on the authority of the
courts in any action that is brought before the courts. It is not a limitation on
the Attorney General, acting under Executive Order No. 12146 or any litigation
review process, o r— more to the point — the President acting through whatever
executive branch process he may authorize. The absence of any limitation on the
President’s discretion is the dispositive factor for constitutional purposes, and in
that respect the two statutory regimes are the same. Neither statute precludes reso­

                                               116
    A dm inistrative A ssessm ent o f Civil P enalties A gainst F ederal A gencies Under the Clean A ir A ct


lution within the executive branch, including resolution by the President, of dis­
putes between the enforcement agency and other federal agencies.9

                                                          B.

   EPA acknowledges that the civil action provisions contained in sections
 113(d)(4) and 113(d)(5) of the Act, see 42 U.S.C. §§ 7413(d)(4), 7413(d)(5),
“ raise the possibility of one executive branch agency suing another in federal
court over the administrative penalty,” EPA Memorandum at 9, but it takes the
position that “ [t]he constitutional concerns . . . could be avoided by an interpreta­
tion that the general reference to review in federal district court reasonably means
only judicial review that was otherwise constitutional.” Id. In particular, EPA
emphasizes that “ nothing in the Clean Air Act mandates that two executive branch
agencies end up in federal court. There is at most an opportunity for any agency
to seek judicial review, and a requirement that EPA ‘request’ that the Attorney
General file a collection action.” Id. EPA concludes that “ the mere possibility
that an interagency lawsuit might result does not invalidate an agency’s ability
to assess civil penalties against another executive branch agency, where the
Attorney General has adequate discretion to control the filing of such a lawsuit.”
Id. at 10.
   As stated in Section II of this opinion, “ this Office has consistently said that
‘lawsuits between two federal agencies are not generally justiciable.’ ” Fair
Housing Act Opinion, 18 Op. O.L.C. at 106 (quoting NRC Opinion, 13 Op. O.L.C.
at 138). “ We have reasoned that federal courts may adjudicate only actual cases
and controversies, that a lawsuit involving the same person as both plaintiff and
defendant does not constitute an actual controversy, and that this principle applies
to suits between two agencies of the executive branch.” Id. We agree with EPA,
however, that this Article III barrier to use of the civil action remedies of section
 113(d) is not a barrier to EPA’s exercise of its administrative enforcement
authority under the Act. Put another way, we agree that the administrative
authority can be exercised consistent with Article HI. The Act does not require
that civil actions be brought in the event of a dispute of an assessment by EPA;
it merely authorizes the bringing of such actions.
   Thus, as is the case with the comparable provisions contained in the Atomic
Energy Act, which we concluded in our NRC opinion could be applied consistent
with Article III, “ this constitutional issue need not arise, because the framework
   9 Nor does ihe Clean Air A ct’s citizen suit provision operate to preclude resolution within the executive branch
Section 304 provides thai “ any person may commence a civil action on his own behalf . . against any person
(including        the United States    ) who is alleged       to be in violation of .    (B) an order issued by [EPAJ
      with respect to (an emission) standard or limitation” under the Act. 42 U S C. § "7604(a)(1) (1994) T he filing
of a citizen suit during the pendency o f a dispute between EPA and a federal agency would not prevent the President
from directing EPA to suspend, withdraw or modify the order it had issued to the agency. Such direction could
be provided specifically in individual cases or generally by operation o f a standing directive setting forth procedures
for resolution o f enforcement proceedings under section 113.


                                                         117
                            O pinions o f the O ffice o f Legal C ounsel in Volum e 21


of the Act clearly permits [a] dispute over civil penalties to be resolved within
the executive branch, and without recourse to the judiciary.” NRC Opinion, 13
Op. O.L.C. at 141.10 To the extent that the civil action provision of the two stat­
utes are parallel, in that the Attorney General rather than the enforcement agency
has control over whether to bring the civil action, our analysis in the NRC Opinion
is directly controlling here:

             It is therefore clear that the Attorney General may exercise [her]
          discretion to ensure that no lawsuits are filed by [EPA] against
          other agencies of the executive branch. If the Attorney General and
          the President determine that no civil penalties should be collected,
          the Attorney General may simply refrain from bringing a lawsuit.
          If the Attorney General determines that certain civil penalties are
          appropriate, however, the Attorney General would still not bring
          a lawsuit because of the constitutional problems noted above.
          Rather, procedures internal to the executive branch are adequate
          to resolve the dispute through the determination that [the federal
          agency responsible for the federal facility] is liable.

Id. at 143.
   The only difference between the two statutes that is relevant to the Article III
question is that section 113(d)(4) of the Clean Air Act would also authorize the
agency responsible for the federal facility to initiate a civil action to contest an
EPA administrative order. See 42 U.S.C. § 7413(d)(4). The difference is not
significant for constitutional purposes, however, because, as we have explained,
the Act is permissive only and does not require any federal agency to bring a
civil action. Moreover, the Attorney General and the President possess the
authority to forestall litigation between executive branch entities. The Attorney
General is responsible for conducting litigation on behalf of most federal agencies
and therefore can ensure that no civil action is filed by those agencies against
another federal entity. We would expect that the relatively few federal agencies
that have relevant independent litigating authority similarly would decline to file
civil actions, consistent with the conclusions set forth in this memorandum. In
any event, the President could direct the agency head not to bring an action or
to withdraw any action that might be filed.

                                                                            DAWN E. JOHNSEN
                                                                   Acting Assistant Attorney General
                                                                        Office of Legal Counsel

   xoSee also id. at 143 (“ We thus conclude that a lawsuit between two agencies of the executive branch would
involve substantial constitutional problems, but that the statutory scheme permits resolution of the interagency dispute
within the executive branch.” ).

                                                         118
