            Ability of the Environmental Protection Agency
                  to Sue Another Government Agency

Before a lawsuit is justiciable under Article III of the Constitution, there must be a genuine
  controversy appropriate for judicial resolution. There must be a concrete adversity o f interest
  between the opposing parties, because an Article III court may not decide a collusive suit or
  render an advisory opinion. Accordingly, courts must insist that the real party in interest
  challenging the Executive Branch’s position not itself be an agency of the Executive Branch.
  In this way, courts will avoid hearing potentially collusive lawsuits and performing functions
  committed by the Constitution to the President.

There are no cases in which disputes between two agencies, both of whose heads serve at the
  pleasure o f the President, have been found to be justiciable. In two recent Superfund enforce­
  ment actions initiated by the Environmental Protection Agency, the defendants attempted to
  join other federal agencies as co-defendants. In both cases, the courts rebuffed the attem pts on
  the ground that the United States may not sue itself. Accordingly, a suit brought by the EPA
  against the Department o f Energy, or any other Executive Branch agency whose head serves
  as the pleasure of the President, would be nonjusticiable.

                                                                                           December 4, 1985

        Letter      for th e     C   h a ir m a n ,   S u b c o m m it t e e   on   O   v e r s ig h t a n d

  In v e s t ig a t io n s   of the    H o u s e C o m m it t e e     on   Energy         and    C om m erce


   The Environmental Protection Agency (EPA) has referred the first question
in your letter of October 21, 1985 to this Department for response. You request
a legal analysis of the question whether a suit by one Executive Branch agency
against another presents a “justiciable controversy” that an Article III court
may decide. Specifically, you ask for our comments on the conclusion in an
August 3, 1983 memorandum from Region IV, EPA, that “failure by [the
Department of Energy (DOE)] to comply with applicable RCRA [Resource
Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.] require­
ments would create a constitutionally ‘justiciable controversy’ so that EPA
could bring suit in federal district court to enforce such requirements.”
   The Region IV memorandum states that it “could find no case in which a
court had declined to hear a case based on an intra-branch dispute because of
lack of a ‘case or controversy’ under the Constitution.” 1 It then cites a number
   1 The author o f the mem orandum was apparently not aw are o f D efense Supplies Corp v United States
Lines Co., 148 F.2d 311 (2d C ir.), cert, d enied, 326 U .S. 746 (1945), in which the court o f appeals affirm ed
dism issal o f a carg o libel brought against the U nited States by a corporation whose stock was wholly ow ned
by the R econstruction Finance Corporation, on grounds that “this [is] nothing more than an action by the
U nited States against the U nited States." Id. at 312. In this regard, see also U nited States v. Easem ent & Right
o f Way, 204 F. Supp. 837 (E.D. Tenn. 1962), in which the district court refused the Tennessee Valley
A uthority's attem pt to join the Farm ers Home A dm inistration as a party defendant in a condem nation suit,
holding that “any differences betw een these agencies would at most be inter-agency disputes which are not
subject to settlem ent by adjudication." Id. at 839.

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 o f cases to support its conclusion that there is no constitutional barrier to a
 court’s adjudication o f an enforcement action brought by EPA against DOE.
 None o f these cases is directly on point, however, because none of them
 involved a suit initiated by one Executive Branch agency against another. More
 importantly, as we will show below, none of them provides any support for the
 conclusion that a court may adjudicate enforcement action under RCRA or the
 Comprehensive Environmental Response, Compensation, and Liability Act of
 1980, 42 U.S.C. § 9601 et seq. (CERCLA), brought by EPA against DOE (or
 indeed against any other Executive Branch agency whose head serves at the
 pleasure of the President).
    It may be helpful at the outset briefly to review the constitutional concerns
 underlying the justiciability question in this context. In order to find that a
controversy is “justiciable” so as to permit the exercise of Article III jurisdic­
tion, a court must satisfy itself that there is a genuine controversy between the
parties to a lawsuit, and that the controversy is appropriate for judicial resolu­
tion. There must be a concrete adversity o f interest between the opposing
parties; an Article III court may not decide a collusive suit or render an
advisory opinion. Where government agencies appear on both sides of a suit, a
court must therefore assure itself that it is not being asked to decide a question
that is properly addressed to the branch of government to which those agencies
belong. W here two Executive Branch agencies appear on opposing sides of a
lawsuit, and where the issue in litigation involves both agencies’ obligation to
execute the law, the principle o f separation o f powers makes these inquiries
particularly sensitive. Accordingly, the courts must insist that the “real party in
interest” challenging the Executive’s position in court not itself be an agency of
the Executive. If it is, the court is not only faced with a potentially collusive
lawsuit, it is also being asked to perform a function committed by the Constitu­
tion to the President.
    The cases cited by the Region IV memorandum in support of its conclusion
that EPA may sue DOE fall generally into three categories. One category
consists o f suits brought by or against one of the so-called “independent
regulatory agencies.” E.g., U dall v. F ederal Pow er Com m ’n, 387 U.S. 428
(1967); Secretary o f Agriculture v. United States, 347 U.S. 645 (1954) (ICC);
U nited States v. ICC, 337 U.S. 426 (1949); IC C v. Jersey City, 322 U.S. 503
(1944); M itchell v. United States, 313 U.S. 80 (1941) (ICC). The second
category consists of two suits in which the Comptroller of the Currency
intervened on the side of the defendant in antitrust actions brought by the
Justice Department. United States v. M arine Bancorporation, 418 U.S. 602
(1974); U nited States v. Connecticut N ational Bank, 418 U.S. 656 (1974). In
the third category are two suits between the government and an individual
officer of the government. P ow ell v. M cCormack, 395 U.S. 486 (1969); United
S tates v. Nixon, 418 U.S. 683 (1975).
    In every one o f these cases, the Supreme Court found, implicitly or explic­
itly, sufficient adversity of interest between the parties to make the controversy
a justiciable one. In none was the Court asked to decide, nor did it decide, a
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legal controversy between two agencies both of whose heads serve at the
pleasure o f the President, as do the heads of EPA and DOE. Even where an
independent regulatory agency appears in opposition to an Executive Branch
agency represented by the Department of Justice, the Court finds it important to
emphasize that the interests at issue in the suit are such as to ensure the
constitutionally necessary adversity between the parties. For example, in United
States v. ICC, the Court held the suit justiciable because certain railroads, not
the ICC, were the “real parties in interest” opposing the government. 337 U.S.
at 432. And in Secretary o f Agriculture v. United States, the Court was at pains
to point out that the Secretary of Agriculture was appearing in the litigation in
opposition to the Interstate Commerce Commission “on behalf of the affected
agricultural interests,” pursuant to specific statutory authorization. 347 U.S. at 645.
   In the two antitrust suits in which the Comptroller of the Currency partici­
pated on the defendant’s side against the Justice Departm ent, M arine
Bancorporation and Connecticut National Bank, it does not appear that the two
governmental entities involved were true adversaries in the judicial process.
There was a real party in interest, namely the bank defendant, in each of the two
cases; the Comptroller, having approved a proposed merger under the Bank
Merger Act pursuant to statutory authority, intervened on the bank’s side to
enable the courts to have the benefit of its reasoning.
   The two cases in the third category, Pow ell v. M cCormack and United States
v. Nixon, both involved unique situations in which personal rather than govern­
mental interests were at stake for one of the parties. In Powell, an elected
officer of the Legislative Branch challenged the House of Representative’s
refusal to seat him. In the Nixon case, the Court appears to have been persuaded
that the President’s personal interest in the matter precluded his acting to
resolve the matter at issue within the branch of government that he headed.2
   In addition, there have been some recent developments in the case law of
which the 1983 Region IV memorandum could not have been aware. The
justiciability issue has recently arisen in two EPA Superfund enforcement
actions, in which defendants attempted to join government agencies as party
defendants. Both courts have refused to do so, reasoning that the United States
may not sue itself. United States v. Shell, 605 F. Supp. 1064,1081-84 (D. Colo.
 1985); United States v. Conservation Chemical Co., No. 82-0983 (W.D. Mo.
Mar. 13, 1985). In Shell, the court refused to join the Department of the Army
as a party defendant, on the ground that the plaintiff “United States” was itself
the Army. 605 F. Supp. at 1082. In Conservation Chemical, the court granted
the Special Master’s recommendation to dismiss a third-party complaint against
several Executive Branch agencies, holding that because the United States was
  2 In the N ixon case, it w ould have been against President N ixon’s personal, as opposed to official, self-
interest to resolve the dispute in favor o f the Special Prosecutor. Therefore, there was sufficient reason to
suspect that he could not “faithfully” execute the law because o f a personal conflict o f interest. That is not the
case w ith a dispute betw een EPA and another executive agency. A lthough many political considerations may
influence his decision (as is the case w ith every Presidential decision), the President does not have a personal
stake in the outcom e. Furtherm ore, w ith respect to ordinary environm ental disputes betw een EPA and other
governm ent agencies, the President labors under no disability w hatever He is in a position to act.

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already a party to the action, the defendants’ claims should have been raised by
counterclaim.
   The Region IV memorandum argues finally that Executive Order No. 12088
(Oct. 13, 1978), reprinted in 42 U.S.C. §4321 note, contemplates judicial
enforcement actions against federal agencies by EPA. Just as the term “en­
forcement” does not have to mean judicial enforcement, neither does the term
“sanctions” in Executive Order No. 12088 necessarily contemplate judicial
sanctions. Certainly, we agree that Executive Branch agencies are subject to
the requirements o f RCRA and CERCLA. The question is what enforcement
tools can constitutionally be used against them. We maintain that the constitu­
tional scheme established by Article II and Article III calls for achieving
compliance with RCRA and CERCLA within the Executive Branch and not in
a judicial forum.

                                                                       P h il l ip D . B r a d y
                                                           Acting A ssistant Attorney General
                                                                Office o f Legislative and
                                                              Intergovernmental Affairs*




   * N O TE: T his letter w as drafted by the O ffice o f Legal C ounsel for the signature o f the A cting Assistant
A ttorney G eneral for the O ffice of Legislative and Intergovernm ental A ffairs.
