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Bar Journal - December 1, 2001

Discretionary Function Sovereign Immunity for Environmental Regulation & Administration


In April 1947, two ships loaded with ammonium nitrate fertilizer caught fire and exploded at the docks in Texas City, Texas, killing hundreds of people and destroying much of the town. March, 1982, EPA workers and contractors cleaning up a contaminated site near Lock Haven, Pennsylvania that included a railroad tank car containing oleum, a solution of sulfur trioxide in concentrated sulfuric acid, created a chemical cloud that escaped into Lock Haven causing extensive property damage. In 1982, road workers near Times Beach, Missouri were exposed to dangerous levels of dioxin. All of these situations resulted in claims being brought against the government. In each of these cases, however, the government was protected by sovereign immunity.

Claims against the government for "bad governing" that led to personal injury, death and property damage are made every day. Such claims allege negligence in doing things directly, in supervising contractors, or negligence in regulating the activities of private parties. In New Hampshire these kinds of claims are usually barred by RSA 541-B:19. As a matter of good sense and policy -and nothing to do with the maxim "the King can do no wrong"- sovereign immunity for discretionary acts protects environmental regulators and administrators from liability.1 

It is "the law of the state" that the doctrine of sovereign immunity of the state and of its officials and employees protects against actions taken within the scope of their official duty. RSA 99-D:1.2 The state's sovereign immunity is jurisdictional and can only be waived by the legislature and in the manner indicated by the legislature.3 The state's sovereign immunity survived the abrogation of sovereign immunity for municipalities.4

In 1985, the New Hampshire legislature enacted RSA 541-B making it possible for injured parties to make claims against the state and its employees for harms suffered by them. Chapter 541-B did not create an unrestricted right against the state, however, and reserved significant protections of immunity for certain state governmental activities.

RSA 541-B:19 provides in pertinent part as follows:

I. Without otherwise limiting or defining the sovereign immunity of the state and its agencies, the provisions of this chapter shall not apply to:

    1. Any claim based upon an act or omission of a state officer, employee, or official when such . . . is exercising due care in the execution of any statute or any rule of a state agency.
    2. Any claim based upon the exercise or performance or the failure to exercise or perform a discretionary executive or planning function or duty on the part of the state or any state agency or a state officer, employee, or official acting within the scope of his office or employment.

The immunity of state environmental staff encompasses, at a minimum, immunity "from liability for conduct that involves . . . 'the exercise of an executive or planning function involving the making of a basic policy decision which is characterized by a high degree of official judgment or discretion.'" Significantly, the application of this protection also goes to those carrying out the policy decision through ordinary acts of government work.6 Conversely, government workers who negligently deviate from specific plans or determinable standards will not enjoy the protection of immunity.7 

How 541-B:19, I, (b) Fits In . . .

Plaintiffs with claims against the state will be tempted to claim that RSA 541-B:19, I, (b) imposes a duty of care on state officials in the execution of any law. Such an argument would effectively wipe away the discretionary functions immunity by imposing a standard of care for the exercise of discretion. But RSA 541-B:19, I, (b) is not a codification of the common law duty of care. Instead it is another source of sovereign immunity for state employees. See In re Opinion of the Justices, 126 N.H. 554, 565 (1985) (discussing purposes of Chapter 541-B and in particular part :19, I, (b)). This section would appear to apply in cases where the state employee does not have any discretion in how he performs his duties.

These provisions are not redundant: (b) seems to protect the state employee who has no discretion - if he exercised due care; (c), on the other hand, protects the official who has discretion in the choices made in exercising that discretion, regardless of negligence.8 The official in the "no discretion" case needs protection because he has no real choice about being there and doing the job. See In re Opinion of the Justices, 126 N.H. at 559-60 and 564. The official in the discretionary case needs protection so that he has the room to make choices and does not have to operate under a cloud of guessing whether a particular choice would be considered "due care" or ceaselessly calculate his exposure to liability for the choice that he made. Id. State employees are immune from claims made in discretionary cases because exposure to liability for those decisions would make the administrative and executive functions far too unwieldy to serve the people of the State of New Hampshire. See In re Opinion of the Justices, 126 N.H. at 559-60.


The following have been held by New Hampshire courts to be within discretionary functions immunity and provide a practical guide to how the law has been applied:

  • The decision to place or abandon an alleyway9
  • The decision of where to place public lighting and parking spaces10
  • The setting of road maintenance standards11
  • The decision of whether or where to place a guardrail on a state highway12
  • A planning board's approval of a subdivision plan without adequate drainage13
  • The enforcement of laws14
  • A town selectman's decision not to lay out certain roads15
  • Traffic control and parking regulations16
  • The decision to have a particular school sports program17
  • The decisions regarding the amount of training and supervision to provide those running such a program18
  • The management of safety precautions on state roads, and the decision of how to control traffic at an intersection19
  • The level of scrutiny applied by inspectors conducting a workplace safety inspection20 
  • The decision to criminally prosecute for environmental crimes contrary to agency policies21

  • The determination of pollution discharge limits for a particular facility22

What becomes clear from this review is that the courts favor granting discretionary immunity for routine acts of law enforcement and program administration. On the other hand, where standards of performance have been set, a failure to adhere to those standards, if negligent, can expose the state to liability.


The New Hampshire discretionary functions exception to the waiver of sovereign immunity is substantially similar to the discretionary functions exception to the Federal Tort Claims Act that is found at 28 U.S.C. 2680(a) and which provides immunity to the federal government from:

(a) Any claim . . . based upon the exercise or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government . . ..

(28 U.S.C. 2680(a))

The United States Supreme Court has interpreted this section in a series of seminal cases that provide a thoughtful framework of analysis for many discretionary functions immunity cases.23 That framework has three parts. The first is the determination of what kind of act was involved, i.e. was it one which was susceptible to being a policy or planning type function. Secondly, the Court looks to see if the action taken or omitted was contrary to some mandatory directive in the law. Finally, when a regulatory program allows for discretion

it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory scheme.

(United States v. Gaubert, 499 U.S. 315, 324-25 (1991)).

Many federal courts around the country have held that the United States Environmental Protection Agency is immune from suits alleging that it failed adequately to do its job in protecting the environment and the health of those exposed to pollutants and hazardous wastes.24 In New Hampshire, the same doctrine was also applied with respect to the liability of the Occupational Safety and Health Administration upon the same logic and to the same result. See Irving v. United States, 162 F.3d 154 (1st Cir. 1998). These precedents, while not binding in state courts here, are amply persuasive when taken together with existing New Hampshire laws and cases to protect New Hampshire's environmental administrators and enforcers.

Several state courts have also ruled that state governmental agencies charged with the administration and enforcement of environmental laws were protected from tort suits by discretionary function immunity.25 Thus, the cases around the country overwhelmingly support the grant of immunity to officials engaged in the administration and enforcement of environmental laws. An appellate court in Florida succinctly stated the core principle: "Government cannot become the insurer of those injured when its laws and regulations are broken or safety measures it imposes are ignored by others." Neumann, 433 So.2d at 563.26 The suits are rejected because to hold otherwise would effectively make environmental regulators insurers of public health and safety, not merely guardians. In the decision of United States v. Varig Airlines, a unanimous Supreme Court found:

When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind.

(United States v. Varig Airlines, 467 U.S. at 819-20).27

There is little doubt that much of environmental protection law and its enforcement and administration is simply the regulation of the safety practices employed by private parties.


There has been a lot of discussion over the past few years about frivolous lawsuits brought by the plaintiffs bar on behalf of clients unwilling to accept their own responsibility, accident, or the mysteries of mortal existence and the "hazards of life." Unfortunately, there is not enough attention paid to the notion that government is not the guarantor of our health and safety, and courts are not the fixer of all wrongs. Few of us in this Live Free or Die state would want to see government environmental inspectors spread out over the landscape eagerly and rapaciously seeking out every violation lest one left undetected expose the state to liability for negligent administration. There are many, in fact, who worry that this is already true. Few would want to remove the element of discretion from law enforcement, where environmental officials can weigh the degree of environmental harm, the culpability of the polluter and the utility of the practice, against the expenditure of governmental resources required for the case in determining which ones to prosecute. And few would want to fund such a huge government at the level it would take to have each agency live up to a standard of due care in administering its program or enforcing the laws. But discretion is a tricky thing. We hope that environmental regulators and administrators are competent and well-meaning people who use their discretion fairly and justly. Our system depends upon it. See Sirrell v. State of New Hampshire, __N.H. __ (Slip Op. at 12) (May 3, 2001) ("The people of this State should be able to rely upon the good faith and common sense of the executive and legislative branches to take the necessary action, not just because by doing so the State may avoid future successful legal challenges, but because that is the essence of our constitutional form of government.")

A good way to accomplish this already exists in the form of discretionary functions sovereign immunity under RSA 541-B:19, I, (c). Could the statute be clearer, more specific? Perhaps. Some states set forth line by line those specific agencies and their specific duties intended to be protected by immunity. This is certainly a valid approach; and environmental regulators and administrators would be more comfortable in their roles in knowing what the precise standard is. Plaintiffs would better know when suits would be a certain waste of time and effort. But for now the cases around the country and the law already in place provide protection when it is needed, if not clarity.


1. See Mahan v. New Hampshire Dept. of Admin. Servs., 141 N.H. 747, 749-50 (1997) (explaining broad principals behind discretionary function sovereign immunity).
2. See La Roche v. Doe, 134 N.H. 562, 567 (1991)
3. La Roche, 134 N.H. at 566-68. 
4. Niles v. Healy, 115 N.H. 370, 371-72 (1975); Sousa v. State of New Hampshire, 115 N.H. 340 (1975).
5. Bergeron v. City of Manchester, 140 N.H. 417, 421 (1995) (quoting Gardner v. City of Concord, 137 N.H. 253, 256 (1993)); Opinion of the Justices, 126 N.H. 554, 563 (1985) (adopting test from Whitney v. Worcester, 373 Mass. 208 (1977).
6. See, e.g., Bergeron, 140 N.H. at 424; Gardner, 137 N.H. at 258 ("We refuse to adopt a rule that automatically would make a municipality liable for torts that result from the actions of those who carry out a plan. It is possible for workers to implement a faulty design or plan, for which no tort liability should result."); Sorenson v. City of Manchester, 136 N.H. 692, 694 (1993).
7. Mahan, 141 N.H. at 750-51; Gardner, 137 N.H. at 258; DiFruscia v. New Hampshire Dept. of Public Works & Hwys., 136 N.H. 202, 205 (1992).
8. See, e.g., Bergeron, 140 N.H. at 422, 424 (once question of immunity is answered, actual negligence does not remove immunity).
9. Gardner, 137 N.H. at 258.
10. Sorenson, 136 N.H. at 694.
11. Opinion of the Justices, 134 N.H. 266, 278-79 (1991).
12. DiFruscia, 136 N.H. at 205.
13. Hurley v. Hudson, 112 N.H. 365, 369 (1972).
14. Hurley, 112 N.H. at 370.
15. Rockhouse Mountain Property Owners Ass'n v, Town of Conway, 127 N.H. 593, 599-600 (1986).
16. Sorenson, 136 N.H. at 694.
17. Hacking v. Town of Belmont, 143 N.H. 546, 550 (1999).
18. Hacking, 143 N.H. at 550.
19. Bergeron, 140 N.H. at 424.
20. See Irving v. United States, 162 F.3d 154 (1st Cir. 1998), cert. denied, 528 U.S. 812 (1999).
21. K.W. Thompson Tool Co. v. United States, 656 F. Supp. 1077, 1084 (D.N.H. 1987) (Devine, C.J.) (applying federal discretionary functions exception), aff'd, 836 F.2d 721 (1st Cir. 1988).
22. K.W. Thompson Tool Co., 656 F. Supp. at 1085.
23. See, e.g., United States v. Gaubert, 499 U.S. 315 (1991) (discretionary function exception bars claims against government for negligent supervision of savings and loan associations); Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary function exception not complete bar to claim against government for breach of mandatory duties in licensing of oral polio vaccine); United States v. Varig, 467 U.S. 797 (1984) (discretionary function exception bars claims against government for negligent safety inspection and enforcement); Dalehite v. United States, 346 U.S. 15 (1953) (discretionary function exception bars claims against government for negligent regulation of fertilizer production program and negligent response to fertilizer disaster); cf. State v. Brosseau, 124 N.H. 184, 202 (1983) (Douglas and Batchelder concurring) (commenting favorably on federal discretionary function exception).
24. See, e.g., Lockett v. United States, 938 F.2d 630, 638 (6th Cir. 1991) (EPA decision not to take action and instead pursue other priorities held immune from tort suit); Wells v. United States, 851 F.2d 1471, 1477-78 (D.C. Cir. 1988) (EPA choice to conduct further study rather than undertake environmental cleanup action held protected by immunity from suit), cert. denied, 488 U.S. 1029 (1989); K.W. Thompson Tool Co. v. United States, 836 F.2d 721, 727-28 (1st Cir. 1988) (affirming NH federal court's dismissal of complaint against US-EPA on basis of discretionary function immunity); Employers Ins. of Wausau v. United States, 27 F.3d 245, 248 (7th Cir. 1994) (EPA immune from claim that it negligently enforced federal hazardous waste law); Daigle v. Shell Oil Co., 972 F.2d 1527, 1540-42 (10th Cir. 1992) (United States immune from liability for negligent administration of hazardous waste remediation program and for failing to protect neighbors from noxious odors associated with remediation); United States Fidelity & Guaranty Co. v. United States, 837 F.2d 116, 119-23 (3d Cir. 1988) (EPA protected by discretionary act immunity from suit for damages caused by escaped cloud of toxic gas released during hazardous waste remediation), cert. denied, 487 U.S. 1235 (1988); Bacon v. United States, 810 F.2d 827, 829-30 (8th Cir. 1987) (EPA decision on whether to regulate dioxin protected by discretionary function immunity from suit by those harmed by Times Beach, Missouri contamination); Cisco v. United States, 768 F.2d 788, 789-90 (7th Cir. 1985); Harper v. Lockheed Martin Energy Sys., Inc., 73 F. Supp. 2d 917, 920-22 (E.D. Tenn. 1999) (United States has discretionary act immunity from suit for injuries allegedly caused by emission from hazardous waste disposal operations of private contractor); Stewman v. Mid-South Wood Prods. of Mena, Inc., 784 F. Supp. 611, 617-18 (W.D. Ark. 1992) (EPA immune from claim that it negligently undertook remediation of hazardous waste site).
25. See, e.g., Brady v. Alaska, 965 P.2d 1, 17 (Alaska 1998) (state immune for discretionary function of forest management and response to epidemic of destructive beetles), cert. denied, 526 U.S. 1026 (1999); Pack v. Blankenship, 612 So.2d 399, 403 (Ala. 1992) (official immune for discretionary functions in determining whether to permit septic tank); Attorney General v. Ankersen, 148 Mich. App. 524, 559, 385 N.W.2d 658, 674 (1986) (state agency immune under discretionary functions exception for administering and enforcing hazardous waste management laws); Neumann v. Davis Water and Waste, Inc., 433 So.2d 559, 563 (Fla Dist. Ct. App. 1983) (state agency immune from suit under discretionary act immunity for not preventing injury caused by private waste treatment and disposal facility), petition for review denied, 441 So.2d 632 (Fla. 11/15/83); see also United States v. Rohm and Haas Co., 939 F. Supp. 1157, 1164 (D.N.J. 1996) (dismissing counterclaim against State of New Jersey for failing to prevent pollution under discretionary act immunity); Jasa v. Douglas County, 244 Neb. 944, 962-63, 510 N.W.2d 281, 291-92 (1994) (government immune from suit for failing to prevent spread of infectious disease at private daycare center under discretionary function immunity); Kenney v. Scientific, Inc., 204 N.J. Super. 228, 497 A.2d 1310 (1985) (state immune from liability for torts against neighbors caused by private waste disposal facility).
26. See Varig, 467 U.S. at 816-17 (regulated entity has duty of compliance; government polices compliance to promote agency goals, not ensure them); Carib Gas Corp. of St. Thomas v. Delaware Valley Indus. Gases, Inc., 660 F. Supp. 419, 422 (D.V.I. 1987) (government agency not "an insurer of the safety" of industry over which it has "broad discretion to investigate and prosecute"), aff'd,, 838 F.2d 459 (3d Cir. 1987).
27. There are many cases where courts have denied claims on the grounds of immunity based on the government's failure to protect safety. See Reed v. United States Dept. of the Interior, 231 F.3d 501, 506-507 (9th Cir. 2000) (man run over by car while sleeping in tent at Burning Man Festival on federal land); Bacon v. United States, 810 F.2d 827, 830 (8th Cir. 1987) (dioxins from Times Beach site); Wysinger v. United States, 784 F.2d 1252, 1254 (5th Cir. 1980) (drowning at swimming site in National Forest); People of Three Mile Island v. Nuclear Regulatory Comm'rs., 747 F.2d 139, 145 (3d Cir. 1984) (radioactive gas cloud from damaged power plant); General Public Utils. Corp. v. United States, 745 F.2d 239, 248 (3d Cir. 1984) (nuclear reactor meltdown), cert. denied, 469 U.S. 1228 (1985); Green v. United States, 629 F.2d 581, 586 (9th Cir. 1980) (DDT used for moth extermination); First Nat'l Bank in Albuquerque v. United States, 552 F.2d 370, 371, 376-77 (10th Cir. 1977) (mercury poisoning by fungicide in meat), cert. denied, 434 U.S. 835 (1977); Vallier v. Jet Propulsion Lab., 120 F. Supp. 2d 887, 913-14 (C.D. Cal. 2000) (hazardous waste disposal that contaminated drinking water wells).

The Author

Attorney Peter C.L. Roth is an Assistant Attorney General in the Environmental Protection Bureau of the Attorney General's Office, Concord, New Hampshire.

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