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 enforcement 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 attempts on 

the ground that the United States may not sue itself. Accordingly, a suit brought by the EPA 

against the Department of Energy, or any other Executive Branch agency whose head serves 

as the pleasure of the President, would be nonjusticiable.

December 4, 1985

L e t t e r f o r t h e C h a i r m a n , S u b c o m m i t t e e o n O v e r s i g h t a n d

In v e s t i g a t i o n s o f t h e H o u s e C o m m i t t e e o n E n e r g y a n d C o m m e r c e

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.] requirements 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 memorandum was apparently not aware of Defense Supplies Corp v United States

Lines Co., 148 F.2d 311 (2d Cir.), cert, denied, 326 U.S. 746 (1945), in which the court of appeals affirmed 

dismissal of a cargo libel brought against the United States by a corporation whose stock was wholly owned 

by the Reconstruction Finance Corporation, on grounds that “this [is] nothing more than an action by the 

United States against the United States." Id. at 312. In this regard, see also United States v. Easement & 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 Farmers Home Administration as a party defendant in a condem nation suit, 

holding that “any differences between these agencies would at most be inter-agency disputes which are not 

subject to settlement by adjudication." Id. at 839.

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of cases to support its conclusion that there is no constitutional barrier to a 

court’s adjudication of an enforcement action brought by EPA against DOE. 

None of 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 jurisdiction, 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 resolution. There must be a concrete adversity of 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. Where 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 of separation of 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 Constitution 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 of suits brought by or against one of the so-called “independent 

regulatory agencies.” E.g., Udall v. Federal Power Comm’n, 387 U.S. 428 

(1967); Secretary o f Agriculture v. United States, 347 U.S. 645 (1954) (ICC); 

United States v. ICC, 337 U.S. 426 (1949); ICC 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. Marine Bancorporation, 418 U.S. 602 

(1974); United States v. Connecticut National Bank, 418 U.S. 656 (1974). In 

the third category are two suits between the government and an individual 

officer of the government. Powell v. McCormack, 395 U.S. 486 (1969); United

States v. Nixon, 418 U.S. 683 (1975).

In every one of these cases, the Supreme Court found, implicitly or explicitly, 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 of 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 participated on the defendant’s side against the Justice Department, 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, Powell v. McCormack and United States

v. Nixon, both involved unique situations in which personal rather than governmental 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 Nixon case, it would have been against President Nixon’s personal, as opposed to official, selfinterest to resolve the dispute in favor of 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 with a dispute between EPA and another executive agency. Although many political considerations may 

influence his decision (as is the case with every Presidential decision), the President does not have a personal 

stake in the outcome. Furthermore, with respect to ordinary environmental disputes between EPA and other 

government agencies, the President labors under no disability whatever 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 “enforcement” 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 of RCRA and CERCLA. The question is what enforcement 

tools can constitutionally be used against them. We maintain that the constitutional 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 i l l i p D . B r a d y

Acting Assistant Attorney General

Office o f Legislative and

Intergovernmental Affairs*

* NOTE: This letter was drafted by the O ffice of Legal Counsel for the signature of the Acting Assistant 

Attorney General for the O ffice of Legislative and Intergovernm ental Affairs.