Do TN state agencies have to get local air-pollution permits from cities and counties with certified local programs (Davidson, Hamilton, Knox, Shelby)?

Plain-English summary

The Tennessee Department of Environment and Conservation's Underground Storage Tank Division remediates contaminated petroleum-release sites across Tennessee. Some of those cleanup activities release small amounts of air pollution. Four Tennessee counties (Davidson, Hamilton, Knox, and Shelby) operate their own certified local air-pollution-control programs and had told the Division it needed local air permits before working at sites in those counties. The TDEC Commissioner asked the AG two questions:

Does Tenn. Code Ann. § 68-201-115 give local air programs authority to require permits from state agencies? No. Sovereign immunity protects the State and its agencies from suit and from being subjected to local regulatory authority unless the General Assembly clearly waives that immunity. The Tennessee Air Quality Act (Tenn. Code Ann. §§ 68-201-101 et seq.) waives sovereign immunity only to a limited extent: § 68-201-102(7) includes state agencies in the definition of "person," and § 68-201-116(a)-(b) authorizes the Technical Secretary of the Air Pollution Control Board to issue orders for correction and assess civil penalties against any "person" who violates the Act. That waiver covers state-level enforcement by the Technical Secretary, not local enforcement by qualified local programs. Tenn. Code Ann. § 68-201-115 (the local-program certification provision) contains no language subjecting state agencies to local programs.

Can the Tennessee Air Pollution Control Board waive sovereign immunity by certifying a local program? No. The authority to waive sovereign immunity is vested in the General Assembly by Tenn. Const. art. I, § 17 (and statutorily reinforced by Tenn. Code Ann. § 20-13-102(a)). The Board cannot delegate or expand the State's waiver by approving a local program; the local program operates only against the persons against whom the General Assembly has authorized it to operate, which does not include state agencies.

The AG contrasts the Tennessee scheme with the federal Clean Air Act, which expressly subjects federal agencies to local air-pollution requirements (42 U.S.C. § 7418(a)). Tennessee's General Assembly could write a similar waiver into the Air Quality Act but has not done so.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What is sovereign immunity?
A: A common-law doctrine that the State cannot be sued or subjected to regulatory authority without its own consent. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 848 (Tenn. 2008), traces it back to the maxim that "the king is not bound by any statute, if he be not expressly named to be so bound." In Tennessee, the doctrine is grounded in Tenn. Const. art. I, § 17 ("Suits may be brought against the State in such manner and in such courts as the Legislature may by law direct") and reinforced by Tenn. Code Ann. § 20-13-102(a). It extends to state agencies and state officers acting in their official capacity.

Q: What does "waiver must be explicit, not implicit" mean?
A: Sovereign immunity can be waived only by clear statutory language; courts will not infer a waiver from general provisions. Wells v. Tennessee Board of Regents, 231 S.W.3d 912, 917 (Tenn. 2007), requires "plain, clear, and unmistakable terms." State ex rel. Allen v. Cook, 171 Tenn. 605, 611 (1937), demands that any waiver be drawn so as to leave "nothing to surmise or conjecture" about the manner and form in which suits may proceed.

Q: Doesn't including state agencies in "person" under § 68-201-102(7) waive sovereign immunity?
A: It waives immunity only to the extent of the enforcement provisions that operate against "persons." The Technical Secretary's order-and-civil-penalty authority under § 68-201-116(a)-(b) thus reaches state agencies. But the local-program provision (§ 68-201-115) does not operate against "persons" by giving local programs enforcement authority over them. § 68-201-116(b)(2)(A) lets a local program issue assessments against "any person responsible for the violation," but the AG reads this as limited to violations of state law (which local programs cannot enforce against state agencies) and not as a waiver of immunity for local-law violations.

Q: What about the federal Clean Air Act?
A: 42 U.S.C. § 7418(a) expressly provides that federal agencies "shall be subject to, and comply with . . . local requirements respecting the control and abatement of air pollution." That is the kind of plain language that creates a waiver. Tennessee's Air Quality Act does not contain a parallel provision for state agencies and local programs.

Q: So the local programs can't do anything about state pollution at remediation sites?
A: Not directly. State pollution from these activities is enforced by the Technical Secretary at the state level under § 68-201-116. The local programs cannot directly assess or order corrective action against the state agency. The local-program counties retain control of all the non-state polluters in their jurisdictions.

Q: Could the legislature change this?
A: Yes. As Lanius v. Nashville Electric Service, 181 S.W.3d 661, 664 (Tenn. 2005), and Hawkins v. Tennessee Department of Correction, 127 S.W.3d 749, 754 (Tenn. Ct. App. 2002), make clear, only the General Assembly has the constitutional authority to determine how and whether lawsuits may proceed against the State. A statute that plainly and unmistakably subjected state agencies to local air-pollution requirements would do the job, just as 42 U.S.C. § 7418(a) does at the federal level.

Background and statutory framework

The Tennessee Air Quality Act (Tenn. Code Ann. §§ 68-201-101 et seq.) sets statewide air-quality standards and authorizes the Tennessee Air Pollution Control Board to administer the Act. Under § 68-201-115(a), any municipality or county may enact "air pollution control regulations not less stringent than the standards adopted for the state." Before such regulations take effect, the locality must apply for and receive a certificate of exemption from the Board, demonstrating that its standards are at least as stringent as the Act's and will be adequately enforced. § 68-201-115(b). The Act preserves the State's residual enforcement authority if a locality fails to obtain compliance. § 68-201-115(b)(5). The Tennessee Court of Appeals construed the "not less stringent" requirement to apply to standards rather than to enforcement methods in General Portland v. Chattanooga-Hamilton County Air Pollution Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976), and Blaylock & Brown Construction Co. v. Collierville Bd. of Mayor and Aldermen, 23 S.W.3d 316, 322 (Tenn. Ct. App. 1999). Op. Tenn. Att'y Gen. 83-404 (Dec. 6, 1983) described the local-program mechanism as allowing cities and counties to take "primary responsibility" for air-pollution regulation in their boundaries.

The sovereign-immunity framework is set out at length in Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 848-53 (Tenn. 2008), which restates the constitutional and statutory grounding of immunity, the rule that any waiver must be "plain, clear, and unmistakable" (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 731 (Tenn. 2007)), and the principle that immunity extends to state agencies and officers. Beare Company v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986), and State ex rel. Allen v. Cook, 171 Tenn. 605, 608 (1937), require strict construction of any purported waiver, with the lone exception (Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000)) for waivers the legislature has expressly directed to be liberally construed.

The Act's waiver does this: § 68-201-102(7) defines "person" to include "an agency, authority, commission, or department . . . of the state of Tennessee government." § 68-201-116(a)-(b) then authorizes the Technical Secretary to issue orders for correction and assess civil penalties against any "person" who violates the Act. Together those provisions waive sovereign immunity for state-level enforcement of the Act and its implementing regulations.

The Act does not contain a parallel waiver for local-level enforcement. § 68-201-115 grants local programs operational authority but does not say that state agencies are subject to those local programs. § 68-201-116(b)(2)(A) gives a certified local program authority to issue assessments against "any person responsible for the violation or damages," but the AG reads this as referring to violations within the local program's enforcement scope, which does not include state law (the State retains that authority). Because the question whether state agencies are subject to local programs is left to "surmise or conjecture," it cannot be a waiver under Cook.

Article I, § 17 of the Tennessee Constitution lodges the waiver power in the General Assembly. The Board cannot manufacture a waiver by certifying a local program with provisions that would, on their face, reach state agencies. Lanius and Hawkins underscore that any waiver-of-immunity authority belongs to the legislature alone.

Citations and references

Constitutional provisions:

• Tenn. Const. art. I, § 17 (suits against the State by legislative direction)

State statutes:

• Tenn. Code Ann. § 20-13-102(a) (statutory bar on suits absent waiver)
• Tenn. Code Ann. §§ 68-201-101 et seq. (Tennessee Air Quality Act)
• Tenn. Code Ann. § 68-201-102(7) ("person" includes state agencies)
• Tenn. Code Ann. § 68-201-115 (local program certification)
• Tenn. Code Ann. § 68-201-115(a), (b), (b)(3), (b)(5) (local-program operation)
• Tenn. Code Ann. § 68-201-116(a), (b), (b)(2)(A) (Technical Secretary enforcement)
• Tenn. Code Ann. § 68-201-117 (companion enforcement)

Federal statutes:

• 42 U.S.C. § 7418(a) (Clean Air Act: federal agencies subject to local requirements)

Cases:

• Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008) (sovereign immunity framework)
• N. British & Mercantile Co. v. Craig, 62 S.W. 155 (Tenn. 1900) (suits against State only by explicit authorization)
• Wells v. Tennessee Board of Regents, 231 S.W.3d 912 (Tenn. 2007) (plain, clear, unmistakable waiver)
• Northland Ins. Co. v. State, 33 S.W.3d 727 (Tenn. 2007) (waiver standard)
• Beare Company v. Olsen, 711 S.W.2d 603 (Tenn. 1986) (strict construction of waiver)
• State ex rel. Allen v. Cook, 106 S.W.2d 858 (Tenn. 1937) (no surmise or conjecture)
• Stewart v. State, 33 S.W.3d 785 (Tenn. 2000) (liberal construction exception)
• Lanius v. Nashville Electric Service, 181 S.W.3d 661 (Tenn. 2005) (waiver power in legislature)
• Hawkins v. Tennessee Department of Correction, 127 S.W.3d 749 (Tenn. Ct. App. 2002) (legislature alone determines suits against State)
• Lynn v. City of Jackson, 63 S.W.3d 332 (Tenn. 2001) (same)
• General Portland v. Chattanooga-Hamilton County Air Pollution Control Bd., 560 S.W.2d 910 (Tenn. Ct. App. 1976) (local-program standards vs. enforcement)
• Blaylock & Brown Construction Co. v. Collierville Bd. of Mayor and Aldermen, 23 S.W.3d 316 (Tenn. Ct. App. 1999) (same)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-086.pdf

Original opinion text

July 13, 2010
Opinion No. 10-86

The State's Sovereign Immunity From Local Air Pollution Control Requirements

QUESTIONS

1. Does Tenn. Code Ann. § 68-201-115 grant qualified local air pollution control programs any authority to require permits or refuse to issue permits for activities of the State of Tennessee, in particular, the Underground Storage Tank Division of the Tennessee Department of Environment and Conservation?

2. Does the above referenced statute allow the Tennessee Air Pollution Control Board to bestow any powers that would waive the State's immunity to suit from such local programs?

OPINIONS

1. No. While the waiver of sovereign immunity in the Tennessee Air Quality Act, Tenn. Code Ann. §§ 68-201-101 et seq., subjects state agencies to this state air pollution control law, neither Tenn. Code Ann. § 68-201-115 nor any other provision of the Act waives sovereign immunity by explicitly making state agencies subject to qualified local air pollution control programs. The Tennessee Air Quality Act and the implementing regulations, not local law, would govern whether the Underground Storage Tank Division needed a permit for an activity conducted in a city or county with a qualified air pollution control program.

2. No. The Tennessee Air Pollution Control Board, pursuant to Tenn. Code Ann. § 68-201-115, does not have the authority to waive the State's sovereign immunity as that authority is reserved solely to the General Assembly under the Tennessee Constitution.

ANALYSIS

1. This opinion request concerns the authority of municipalities and counties, which have established local air pollution control programs and received certificates of exemption under Tenn. Code Ann. § 68-201-115, to impose local air pollution control requirements on a state agency, the Tennessee Department of Environment and Conservation's Division of Underground Storage Tanks ("Division"). According to the opinion request, the Division is currently contracting to remediate numerous sites that have been contaminated with petroleum releases from leaking underground storage tanks. The request states these cleanup activities will result in a small amount of air pollution at these sites. Some of the sites where the Division is planning to conduct work are located in counties that have established local air pollution control programs and received certificates of exemption under Tenn. Code Ann. § 68-201-115. These counties include Davidson, Hamilton, Knox, and Shelby. According to the opinion request, all of these programs have indicated to the Division that they have the authority to require the Division to obtain local air pollution control permits prior to commencing any cleanup in such counties.

The Tennessee Air Quality Act, Tenn. Code Ann. §§ 68-201-101 et seq. ("Act"), allows any municipality or county in Tennessee to enact by ordinance or by resolution "air pollution control regulations not less stringent than the standards adopted for the state" pursuant to the Act. See Tenn. Code Ann. § 68-201-115(a). Before such ordinances or resolutions become effective, the municipality or county must apply for and receive from the Tennessee Air Pollution Control Board ("Board") a certificate of exemption. See Tenn. Code Ann. § 68-201-115(b). The Board shall grant the exemption if the Board determines that the municipality or county's regulations controlling air pollution are "not less stringent" than the provisions of the Act and will be adequately enforced. See Tenn. Code. Ann. § 68-201-115(b)(3). Courts have construed the "not less stringent" language in this provision as pertaining to the Act's standards and not to enforcement methods. See General Portland v. Chattanooga-Hamilton County Air Pollution Control Bd., 560 S.W.2d 910, 914 (Tenn. Ct. App. 1976); See also Blaylock & Brown Construction Co. v. Collierville Bd. of Mayor and Aldermen, 23 S.W.3d 316, 322 (Tenn. Ct. App. 1999). Tenn. Code Ann. § 68-201-115 essentially provides a mechanism whereby the State may allow cities and counties to have the primary responsibility for regulating air pollution control within their boundaries. See Tenn. Op. Att'y Gen. 83-404 (Dec. 6, 1983). Even when a certificate of exemption is granted, the Act reserves to the State the right to enforce such local provisions if the municipality or county fails to obtain compliance with those requirements. See Tenn. Code Ann. § 68-201-115(b)(5).

Because the question posed in this opinion request concerns the authority of local governments to impose restrictions on a state agency, this question necessarily implicates principles of sovereign immunity. Sovereign immunity is "a principle of the common law as old as the law itself, that the king is not bound by any statute, if he be not expressly named to be so bound." Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 848 (Tenn. 2008) (citations omitted). "[S]overeign immunity encompasses both the principle of immunity from suit and the principle of immunity from liability." Colonial Pipeline, 263 S.W.3d at 851 (citing 81A Am.Jur.2d States § 534 (2004)). The doctrine of sovereign immunity is embodied in the Tennessee Constitution, which provides that "[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct." See id. at 849 (quoting Tenn. Const. art. I, § 17). Courts have construed this provision of the Tennessee Constitution to mean that suits against the State may not be brought "unless explicitly authorized by statute." Id. (citing N. British & Mercantile Co. v. Craig, 106 Tenn. 621, 62 S.W. 155, 157 (1900) (citation omitted)). The doctrine of sovereign immunity is reinforced by a statute enacted by the General Assembly that prevents state courts from hearing suits against the State absent a waiver of sovereign immunity. See Tenn. Code Ann. § 20-13-102(a). "The doctrine of sovereign immunity, therefore, has both a constitutional and statutory basis." Wells v. Tennessee Board of Regents, 231 S.W.3d 912, 916 (Tenn. 2007) (citation omitted). Finally, the sovereign immunity of the State "generally extends to state agencies and state officers acting in their official capacity." Colonial Pipeline, 263 S.W.3d at 849 (citing 81A Am.Jur.2d States § 533 (2004)).

While the legislature may waive the State's sovereign immunity, such waiver "must be explicit, not implicit." Id. at 853 (citations omitted). See also Wells v. Tenn. Bd. of Regents, 231 S.W.3d 912, 917 (Tenn. 2007) (quoting Northland Ins. Co. v. State, 33 S.W.3d 727, 731 (Tenn. 2007) (waiver of sovereign immunity must be provided for in "plain, clear, and unmistakable terms")). As a general rule, a statute waiving sovereign immunity is "strictly construed" by the courts. Beare Company v. Olsen, 711 S.W.2d 603, 605 (Tenn. 1986) (citing State ex rel. Allen v. Cook, 171 Tenn. 605, 608, 106 S.W.2d 858, 860 (1937)). [The only exception to the strict construction rule is when the General Assembly has expressly provided for a sovereign immunity waiver to be liberally construed. See Stewart v. State, 33 S.W.3d 785, 791 (Tenn. 2000) ("If the legislature intends that its statutes waiving sovereign immunity are to 'be liberally construed,' then the courts should generally defer to this expressed intention in cases where the statutory language legitimately admits of various interpretations").]

In State ex rel. Allen v. Cook, the Tennessee Supreme Court, in strictly construing a statute subjecting the State to garnishment, held that the statute was insufficient as a waiver of sovereign immunity. In that enactment, the legislature had expressly provided for the garnishment of salaries, wages, or other compensation due from the State to any of its officers or employees. 171 Tenn. at 607-08. Although the General Assembly made the State subject to the substantive provisions of the garnishment law, the enactment was inadequate to waive sovereign immunity because the "Legislature failed to designate a full and complete 'manner' in which the state can be sued in a garnishment proceeding." Id. at 610. As held by the Court, a statute "authorizing suits against the state must strictly pursue the constitutional requirements, and be so plain, clear, and unmistakable in its provisions as to the manner and form in which such suits may be brought as to leave nothing to surmise or conjecture." Id. at 611.

In the Act, the General Assembly has defined "person" to specifically include "an agency, authority, commission, or department . . . of the state of Tennessee government." Tenn. Code Ann. § 68-201-102(7). When a violation of the substantive provisions of the Act or the implementing regulations occurs, the Technical Secretary of the Board is authorized to "issue an order for correction to the responsible person." Tenn. Code Ann. § 68-201-116(a). That "person" is also subject to civil penalties and damages assessed by the Technical Secretary. Tenn. Code Ann. § 68-201-116(b). In defining "person" to include agencies of the State, the legislature has waived sovereign immunity by plainly, clearly, and unmistakably subjecting these agencies to the substantive air pollution control requirements of the Act and the regulations, and to enforcement by the Technical Secretary for violations thereof.

But neither Tenn. Code Ann. § 68-201-115 nor any other provision of the Act waives sovereign immunity by explicitly making state agencies subject to the air pollution control laws of municipalities and counties receiving certificates of exemption under the Act. [In contrast, the federal Clean Air Act does contain a sovereign immunity waiver expressly providing that federal agencies "shall be subject to, and comply with, . . . local requirements . . . respecting the control and abatement of air pollution." 42 U.S.C. § 7418(a).] Thus, the Act and the implementing regulations, not local law, would govern whether the Underground Storage Tank Division, or any other state agency, would need a permit from the Technical Secretary for an activity conducted in a city or county with a certificate of exemption. [Tenn. Code Ann. § 68-201-116(b)(2)(A) does provide that a "municipality or county operating under a certificate of exemption under Tenn. Code Ann. § 68-201-115 may issue an assessment against any person responsible for the violation or damages." (Emphasis supplied). See also Tenn. Code Ann. § 68-201-117. But cities and counties with qualified air pollution control programs are not authorized to enforce violations of state law under the Act. And although state agencies are within the Act's definition of "person," the Act does not subject these agencies to the substantive requirements of qualified local air pollution control programs. If state agencies are not subject to local substantive requirements, then they cannot be subject to local assessments. Thus, as regards state agencies, the intent of this provision is subject to "surmise or conjecture." Cook, 171 Tenn. at 611. And as a result, this provision cannot be a "plain, clear, and unmistakable" expression of the General Assembly's intent to waive sovereign immunity. Id.]

2. The authority to waive the State's sovereign immunity is vested with the General Assembly under Article I, Section 17, of the Tennessee Constitution. See Lanius v. Nashville Electric Service, 181 S.W.3d 661, 664 (Tenn. 2005). See also Hawkins v. Tennessee Department of Correction, 127 S.W.3d 749, 754 (Tenn. Ct. App. 2002) ("[o]nly the legislature has constitutional authority to determine how, or even if, lawsuits against the State may be brought.") (citing Lynn v. City of Jackson, 63 S.W.3d 332, 337 (Tenn. 2001)). Because only the General Assembly has the authority to waive the State's sovereign immunity, the Board under Tenn. Code Ann. § 68-201-115 does not have the authority to waive the State's sovereign immunity and subject the State or its agencies to local air pollution control requirements.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GINA J. BARHAM
Deputy Attorney General

WILSON S. BUNTIN
Assistant Attorney General

Requested by:

Commissioner James H. Fyke
Tennessee Department of Environment and Conservation
401 Church Street
Nashville, TN 37243