Has South Carolina legally waived its sovereign immunity so the federal government can enforce its highway environmental-review duties in federal court?

Plain-English summary

The U.S. Secretary of Transportation and the Federal Highway Administration asked the South Carolina Attorney General to confirm, in writing, that the State has properly waived its sovereign immunity and agreed to be sued in federal court over its handling of environmental-review duties it took on under the National Environmental Policy Act (NEPA) Assignment Program. Under that federal program, states can take over some of the federal government's own environmental-review responsibilities for highway projects, but doing so requires the state to accept federal court jurisdiction for related disputes.

The Attorney General confirmed the waiver is valid. South Carolina's 2026 Act 244 added a new statute, Section 57-3-790, in which the State waives its Eleventh Amendment immunity and consents to be sued in federal court over the Department of Transportation's compliance, discharge, or enforcement of the assigned NEPA responsibilities, but only if four conditions are all met: the state Secretary of Transportation signs a memorandum of understanding with the federal DOT, the state Attorney General issues an opinion letter (this one) confirming the waiver is valid before that memorandum is signed, the lawsuit actually arises from the assigned NEPA responsibilities, and the memorandum is in effect when the underlying act or omission occurred.

What this means for you

Federal Highway Administration and U.S. DOT officials overseeing the NEPA Assignment Program

The opinion confirms South Carolina has satisfied its end of the federal program's jurisdictional requirement: a validly enacted state law waiving Eleventh Amendment immunity and consenting to federal court jurisdiction for the specific category of NEPA-assignment disputes, conditioned on a memorandum of understanding being executed and in effect.

South Carolina Department of Transportation staff and counsel

The opinion holds that the State's waiver of immunity under Section 57-3-790 is limited: it applies only to lawsuits arising from the department's compliance, discharge, or enforcement of the specific responsibilities it assumed under 23 U.S.C. Sections 326 and 327, and only while the memorandum of understanding is in effect.

Attorneys litigating disputes over state-assumed federal highway environmental reviews

The opinion confirms the South Carolina Supreme Court has not questioned the General Assembly's authority to waive sovereign immunity by statute, and treats Section 57-3-790 as a clear and specifically limited waiver, consistent with the pattern recognized in prior sovereign-immunity cases like the Tort Claims Act.

Common questions

Q: Can South Carolina be sued in federal court over highway environmental reviews it took over from the federal government?
A: Yes, according to this opinion, but only for lawsuits arising from the specific responsibilities assumed under 23 U.S.C. Sections 326 and 327, and only once all of Act 244's conditions (including a signed memorandum of understanding and this AG opinion letter) are satisfied.

Q: What has to happen before this waiver of immunity actually takes effect?
A: Based on the opinion, four things: the state Secretary of Transportation must sign a memorandum of understanding with the federal DOT, the South Carolina Attorney General must have already issued an opinion letter confirming the waiver's validity, the lawsuit must arise from the assigned NEPA duties, and the memorandum must be in effect when the relevant act or omission occurred.

Q: Can South Carolina's legislature waive sovereign immunity by statute?
A: Yes. The opinion notes South Carolina's appellate courts have not questioned the General Assembly's authority to waive sovereign immunity by statute, citing the state's Tort Claims Act and other examples of clear statutory waivers.

Background and statutory framework

Congress's NEPA Assignment Program, codified at 23 U.S.C. Sections 326 and 327, lets a state department of transportation take over certain federal environmental-review responsibilities for highway projects, provided the state accepts federal court jurisdiction over disputes arising from that assumed role. South Carolina's 2026 Act 244 added Section 57-3-790 to state law to satisfy that requirement, waiving Eleventh Amendment immunity and consenting to suit in federal court, subject to the memorandum-of-understanding and opinion-letter conditions described in the statute. The South Carolina Constitution's Article X, Section 10 gives the General Assembly authority to direct by law how claims against the State may be established and adjusted, and state courts have consistently upheld the Legislature's power to waive immunity through clear statutory language.

Citations and references

Statutes:
- Act No. 244, 2026 S.C. Acts, adding S.C. Code § 57-3-790, waiver of immunity for the NEPA Assignment Program
- 23 U.S.C. §§ 326, 327, federal NEPA responsibilities assignable to states
- S.C. Const. art. X, § 10, General Assembly's authority over claims against the State

Cases:
- Murphy v. Richland Mem'l Hosp., 317 S.C. 560, 455 S.E.2d 688 (1995), rational limits on a statutory waiver of immunity
- Hodges v. Rainey, 341 S.C. 79, 533 S.E.2d 578 (2000), the Tort Claims Act as a statutory waiver of sovereign immunity
- Thompson v. Killian, 447 S.C. 177, 924 S.E.2d 606 (2025), clear and widely understood legal terms used to waive immunity for a specific category of claims

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-regarding-waiver-of-sovereign-immunity/
• Original PDF: https://www.scag.gov/media/tlfi40o1/duffy-final.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

June 15, 2026

The Honorable Sean P. Duffy

Secretary

United States Department of Transportation
1200 New Jersey Ave., SE

Washington, DC 20590

The Honorable Sean McMaster
Administrator

Federal Highway Administration
1200 New Jersey Ave., S.E.
Washington, D.C. 20590

Re: Act No. 244, 2026 S.C. Acts
Dear Mr. Duffy and Mr. McMaster

You have requested that this Office provide a letter confirming that the State has waived
sovereign immunity and accepted exclusive Federal court jurisdiction with respect to
compliance, discharge, and enforcement of an assignment under the National Environmental
Policy Act (NEPA) Assignment Program.

Act No. 244, 2026 S.C. Acts, the title to which references NEPA, provides as follows as
to waiver of immunity and consent to federal court jurisdiction under that program:

Section 57-3-790. (A) The State waives its immunity under the 11th Amendment of the
United States Constitution and consents to suit in a federal court for lawsuits arising out
of the department's compliance, discharge, or enforcement of responsibilities assumed
pursuant to 23 U.S.C. Sections 326 and 327. The waiver of immunity under this section is
valid only if:

REMBERT C. DENNIS BUILDING e POST OFFICE BOX 11549 « COLUMBIA, SC 29211-1549 ¢ TELEPHONE 803-734-3970 ¢ FACSIMILE 803-253-6283

The Honorable Sean P. Duffy
The Honorable Sean McMaster
June 15, 2026

Page 2

(1) the Secretary of Transportation executes a memorandum of understanding with the
United States Department of Transportation accepting the jurisdiction of the federal
courts as required by 23 U.S.C. Sections 326(c) and 327(c);

(2) before execution of the memorandum of understanding under subsection (A), the
South Carolina Attorney General has issued an opinion letter to the Secretary of
Transportation and the administrator of the Federal Highway Administration that the
memorandum of understanding and the waiver of immunity are valid and binding
upon the State;

(3) the act or omission that is the subject of the lawsuit arises out of or relates to
compliance, discharge, or enforcement of responsibilities assumed by the department
pursuant to 23 U.S.C. Sections 326 and 327; and

(4) the memorandum of understanding is in effect when the act or omission that is the
subject of the federal lawsuit occurred.

The Office of the Attorney General has determined that the State of South Carolina has
waived its immunity from suit and accepted the jurisdiction of the federal courts under the terms
of Act 244 provided that all of the above conditions are met under that statute.!

Sincerely,

J. Emory Smith, Jr.
General Counsel

1 “The General Assembly may direct, by law, in what manner claims against the State may be
established and adjusted.” SC. Const. art. X, §10. The Appellate Courts have not questioned the
authority of the General Assembly to waive sovereign immunity by statute. See,eg, Murphy v.
Richland Mem'I Hosp., 317 S.C. 560, 563-64, 455 S.E.2d 688, 690 (1995)( “In enacting such a
limited waiver of immunity, it appears to us rational for the state to limit actions to those
instances when the governmental entity is given reasonably early notice of the claim.”); Hodges
v. Rainey, 341 S.C. 79, 92, 533 S.E.2d 578, 585 (2000)(‘“the legislature passed the Tort Claims
Act, which waived sovereign immunity under certain circumstances.”); Thompson v. Killian, 447
S.C. 177, 194, 924 S.E.2d 606, 615 (2025), reh'g denied (Jan. 16, 2026)(“‘an example of the
General Assembly using a clear and widely understood legal term to waive sovereign immunity
only for contract claims in a statute.”).

The Honorable Sean P. Duffy
The Honorable Sean McMaster
June 15, 2026

Page 3
Reviewed and approved by:
Robert D. Cook
Solicitor General Emeritus
cc: Mr. Jermaine R. Hannon, Division Administrator, Federal Highway Administration

The Honorable Justin P. Powell, South Carolina Secretary of Transportation
Ms. Barbara M. Wessinger, Chief Counsel, South Carolina Department of Transportation