Petition for Writ of Certiorari — Pennsylvania v. Union Gas Co.
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871241.
No.
, Supreme Court US.
EILED
JAN 211988
SEPH F. SPANIOL, JR.
STATES «
*
IN THE SUPREME COURT OF THE UNI
‘
OCTOBER TERM, 1987
COMMONWEALTH OF PENNSYLVANIA,
Petitioner
v.
UNION GAS COMPANY,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
LeROY S. ZIMMERMAN
Attorney General
By: ANDREW S. GORDON
Chief Deputy Attorney General
Chief, Litigation Section
(Counsel of Record)
JOHN G. KNORR, III
Senior Deputy Attorney General
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
(717) 783-1471
QUESTIONS PRESENTED
1. Whether amendments to a
definitional section of the Superfund
Act, which make no mention of the
Eleventh Amendment and which refer to
State liability only in narrow
circumstances not applicable here,
contain the unmistakeable expression of
Congressional intent necessary to
override the Eleventh Amendment.
2. Whether, assuming that the
amendments lift Eleventh Amendment pro-
tection, the rule that, in Commerce
Clause enactments Congress may affect
the states' Eleventh Amendment immunity
only if States waive their immunity by
continuing to operate in the federally
regulated sphere, bars Congress from
retroactively eliminating Eleventh
Amendment protections.
3. Whether Congress' power to
override Eleventh Amendment immunity
under the Commerce Clause is limited by
the States' right to provide vital
services without subjecting themselves
to federal court jurisdiction, particu-
larly where the events forming the basis
for suit occurred long before the federal
scheme was enacted.
5
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED............-. i
TABLE OF CITATIOOWB ess. iv
OPINIONS BBL. 1
err 2
STATUTE INWOLVUBᷣUDDDPDbb:ꝛ 2
„„ „„ „„ „ „ „ 4
REASONS FOR GRANTING
// Ww . 11
„„ „ 37
APPENDIX:
Opinion On Remand From The
Supreme Court Dated November
„„ 1a
Opinion Of The Court Dat ed
June 10, 19930 03“u 74a
Memorandum Dated November
, ˖ÜĩܹÜD⅛Xlnn . gees 139
-iii-
Cases Page
Atascadero State Hospital
v. Scanlon,
473 U.S. 234 (1985).......... passim
County of Oneida, New York
Oneida Indi Nati ;
New York State,
470 U.S. 226 (1985).......... 26
415 U.S. 651 (1974).......... 22, 25
28, 30
Employees of Dept. of Pub. —
Health & Welfare v. Missouri
Dept. of Pub Health & Welfare,
411 U.S. 279 (1972).......... passim
Ex Parte State of New York
No. 1,
256 U.S. 490 (1921)...,...... 31,. 32
G * 8 0 t * :
469 U.S. 528 (1985)....... 29
437 U.S. 678, 698 n.31
"amt ate eee a 15
i ;
292 U.S. 313 (1934).......... 21
377 U.S. 184 (1964).......... . 23
-iv-
TABLE OF CITATIONS
(Continued )
Cases Page
Pennhurst State School
451 U.S. 1 (1581). 25
Pennhurst State School
465 U.S. 89 (1984)........... 14
440 U.S. 332 (1979).......... 14, 15
State of New York v.
759 F.2d 1032 (2d Cir.
. .. 19
100 U.S. 303 (1880).......... 35
No. 86-597 (January 12,
PWW TU wwhwwe es bee wees 8
Civil Action No. 86-748-E
] ] Ü 12
United States v. Schooner
Peggy,
5 U.S. (1 Cranch) 103
, ne ˙ 21
Welch v. Texas Department
Of Highways and Public
Transportation,
No. 85-1716 (June 25, 1987),
eee 14, 21,
23, 26,
29
92
TABLE OF CITATIONS
(Continued )
Page
Statutes
Comprehensive Environmental
Response, Compensation and
Liability Act, 42 U.S.C.
R passim
Federal Employees' Liability
Act, 45 U.S.C. §51 et seg........ 22
Superfund Amendments and
Reauthorization Act of 1986,
Pub. L. No. 99-499, §101(b),
100 Stat. 1613 (1986)............ passim
42 U.S.C. §9601(10)(D)........... 19
42 U.S.C. §9601(20)(D)........... 8, 17
United Stat ; bituti
Commerce Clause, U.S. Const. .
BEE. 1. . l. . pass in
Eleventh Amendment............... passim
Fourteenth Amendment............. 7. ae
-vi-
(Continued )
* zuthax iti
Comments of Senator Stafford,
131 Cong. Rec. 11619 (daily
ed. Sept. 17, 19850)
H. Rep. No. 99-926, p. 185-186
-vii-
IN THE SUPREME COURT OF
THE UNITED STATES
OCTOBER TERM, 1987
No.
COMMONWEALTH OF PENNSYLVANIA,
Petitioner
V.
UNION GAS COMPANY,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
OPINIONS BELOW
The second opinion of the Court
of Appeals (Pet. App. la.-73a.) is
reported 832 at 1343 F.2d (1987). The
initial opinion of the Court of Appeals
(Pet. App. 74a.-138a.) is reported at
792 F.2d 372 (1986). The opinion of the
District Court (Pet. App. 139a.- 158a.)
is reported at 575 F.Supp. 949 (1983).
JURISDICTION
The judgment of the Court of
Appeals vas entered on November 3,
1987. Pet. App. la. This petition is
filed within 90 days of the judgment.
STATUTE INVOLVED
STATE OR LOCAL GOVERNMENT
LIMITATION — Paragraph (20) section 101
of CERCLA (defining “owner or operator“)
is amended as follows:
1) Add the following new sub-
. paragraph at the end thereof:
"(D) The term ‘owner or oper-
ator' does not include a unit
of State or local government
which acquired ownership or
control involuntarily through
bankruptcy, tax delinquency,
abandonment, or other cir-
cumstances in which the gov-
ernment involuntarily acquires
title by virtue of its func-
tion as sovereign. The exclu-
sion provided under this para-
graph shall not apply to any
State or local government
which has caused or con-
tributed to the release or
threatened release of a haz-
ardous substance from the
facility, and such a State or
local government shall be
subject to the provisions of
this Act in the same manner
and to the same extent, both
procedurally and substan-
tively as any nongovernmental
entity, including liability
under section 107."
2) Amend clause (iii) of subpara-
graph (A) to read as follows:
"(i1li) in the case of any
facility, title or control of
which was conveyed due to
bankruptcy, foreclosure, tax
delinquency, abandonment, or
Similar means to a unit of
State or local government,
any person who owned, oper-
ated, or otherwise controlled
activities at such facility
immediately beforehand."
Superfund Amendments and Reauthorization
Act of 1986, Pub. L. No. 99-499, §101(b),
100 Stat. 1613 (1986).
STATEMENT
This case began with a com-
plaint filed in the United States
District Court for the Eastern District
of Pennsylvania in which the United
States sought to recover from Union Gas
Co. the costs incurred to clean up coal
tar which had seeped into a creek. Pet.
App. 10a Suit was brought pursuant to
Sections 104 and 107 of the Compre-
hensive Environmental Response, Compen-
sation and Liability Act (CERCLA or
Superfund), 42 U.S.C. 559604, 9607.
Pet. App. 10a. Union Gas filed third-
party claims against the Commonwealth of
Pennsylvania and a Pennsylvania munic-
ipality, the Borough of Stroudsburg.
Pet. App. 10a, 79a.
Irne borough is not a party to
this appeal. Pet. App. 80a n. 3.
The District Court dismissed the claim
on Eleventh Amendment grounds? Pet.
App. 158a. Initially, the Court of
Appeals affirmed (Pet. App. 118a), but
following remand from this Court to
reconsider the question in light of
intervening amendments to CERCLA, the
Third Circuit reversed. Pet. App. 73a.
1. The pleadings disclose that
predecessors of Union Gas owned and
operated a facility which produced coal
tar as a byproduct of its operation.
Pet. App. 76a-77a. Long after the plant
was closed the Commonwealth acquired
portions of Union Gas' land and, through
2Following the dismissal, the
United States filed an amended com-
plaint, Union Gas filed a new third-
party claim, the Commonwealth moved to
dismiss and the District Court dismissed
the third party claim, relying on its
initial opinion. Pet. App. 8la.
the borough, also acquired easements
near a creek for flood control. Pet.
App. 9a, 76a-77a. In the 1950's, the
State, together with the Army Corps of
Engineers, dug levees, erected dikes and
changed the flow of the creek to aid in
flood protection. Pet. App. 77a. In
October of 1980, the State again was
engaged in excavation along the creek
when coal tar began to seep into the
water. Pet. App. 77a.
The Environmental Protection
Agency (EPA) found that the coal tar was
a hazardous substance thus triggering
the protections of CERCLA. Pet. App.
77a. The Commonwealth in cooperation
with federal authorities cleaned up the
spill. Pet. App. 9a. After reimbursing
the Commonwealth for its costs, the
United States sued Union Gas.
Pet.
App. 9a-10a.
The District Court concluded
that the third-party claim was barred by
the Eleventh Amendment because CERCLA
lacked clear language eliminating the
States“ immunity. Pet. App. 15la-152a.
Following a settlement between the
United States and Union Gas, Union Gas
appealed dismissal of its third-party
Claim. Pet. App. lla.
2. In its first opinion, the
Court of Appeals agreed with the District
Court. The court found in CERCLA, as it
read at that time, no clear language
overturning Eleventh Amendment immunity.
The legislative history similarly was
3The United States alleged that it
had spent $1,400,00 on the clean-up and
sought recovery from Union Gas for
$720,000. Pet. App. 8la.
silent on the subject. The Court of
Appeals affirmed.
3. Union Gas filed a petition
for certiorari and soon thereafter CERCLA
was amended by the Superfund Amendments
and Reauthorization Act of 1986, Pub.
L.No. 99-499, 100 Stat. 1613 (1986)
(SARA). Eventually, the Court vacated
the judgment of the Court of Appeals and
remanded the case for reconsideration in
light of SARA. Union Gas Co. v. Pennsyl-
vania, No. 86-597 (January 12, 1987).
This time the Third Circuit
discerned in SARA a clear Congressional
intent to eliminate Eleventh Amendment
immunity. Specifically, the court found
that amendments to the definitional
section of CERCLA, 42 U.S.C. §9601(20)
(D), now made it plain that States are
liable under the statute. Pet. App.
2la-23a. Aside from the language of
the amendments, the Court of Appeals
found support for its conclusion in
sovereign
provisions eliminating the
immunity of the United States and
providing for citizens suits. Pet. App.
23a-28a.
Having resolved the statutory
interpretation question, the Court of
Appeals faced the question whether
Congress had the power under the Con-
merce Clause to alter Eleventh Amendment
protections. First, the court concluded
that the extent of Congress' power to
affect Eleventh Amendment immunity did
not vary depending upon whether Congress
was acting pursuant to its Article I
powers or its power to enforce the
Fourteenth Amendment. Pet. App. 66a.
The court then decided that, so long as
=
Congress expressed itself clearly, there
were no constraints on its ability to
eliminate the Eleventh Amendment
safeguards when it was acting under the
Commerce Clause. Pet. App. 66a-67a.
Finally, the court ruled that the SARA
retro-
amendments could be applied
actively because the case still was on
appeal when the law was amended. Pet.
App. 67a-72a.°
“The Court of Appeals stayed the
mandate pending disposition of this
petition.
-10- 0
REASONS FOR GRANTING THE WRIT
The decision of the Court of
Appeals raises issues of substantial
nationwide importance concerning the
scope of liability under the Superfund
Act and the nature of Congress' power to
affect the States' Eleventh Amendment .
immunity. Despite the fact that the
statute makes no mention of the Eleventh
Amendment, refers to State liability only
in a definitional provision and nowhere
indicates clearly that Congress focused
precisely on state liability to private
parties, the Third Circuit has opened
the States' coffers. This in itself
presents immediate, serious consequences
for all the States. EPA has listed
22,000 sites as potential Superfund
sites, H. Rep. No. 99-253(V)(1986),
p. 2, with cleanup costs estimated to
-ll-
approach $100 billion. H. Rep. No.
99-253(I) (1985), p. 55. As the amici
States explain more particularly, even
before the Third Circuit's decision,
numerous third-party claims have been
pressed against States, some as seemingly
bizarre as the assertion that a State is
liable for hazardous releases from a
site cordoned off by police because it
was the scene of a suspected er ine.
This trend can be expected to intensify,
encouraged by the decision in this case.
The Third Circuit's decision
raises disturbing questions not only
about Superfund liability, but also
regarding the vitality of the Eleventh
Amendment. The Court of Appeals failed
SSee United States v. Freeman,
Civil Action No. 86-748-E (W.D.N.Y.),
which is discussed more fully in the
States' amicus brief.
ait.
to address adequately the question,
posed in this case as well as a legion
of others arising under CERCLA before
the SARA amendments, whether the
Eleventh Amendment permits Congress to
sweep aside immunity retroactively.
Certainly, it is of immediate importance
that the question of retroactive
liability be settled so that States do
not incur needlessly the enormous
litigation costs associated with
Superfund cases.
The Third Circuit's decision is
of critical importance for à final
reason. The court, by refusing to
recognize any substantive limits on
Congress' authority to iimit Eleventh
Amendment immunity, has eliminated
almost entirely any meaningful role for
that provision. In so holding, the
Court of Appeals swept aside without
more than a passing glance this Court's
—13—
repeated adnonit ion, often in the face \
of vigorous dissent, that the Eleventh
Amendment embodies the fundamental
values of sovereign immunity. This
sharp break in Eleventh Amendment
jurisprudence justifies review at this
time.
l. Just last term the Court
reaffirmed that States are immune from
suit in federal court in the absence of
"an unequivocal expression that Congress
intended to override Eleventh Amendment
immunity." Welch v. Texas Department of
Highways and Public Transportation, No.
85-1716 (June 25, 1987), slip op. at 8,
citing Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 242 (1985);
Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 99 (1984); and,
Quern v. Jordan, 440 U.S. 332, 342-345
-14-
(1979). The Third Circuit, although it
paid lip service to this rule (Pet.
App. 14a-17a), failed to heed it.
Nothing in CERCLA as originally
enacted demonstrates that Congress
"focused directly'' on unrestricted State
liability to private parties. See Hutto
vy. Finney, 437 U.S. 678, 698, 698 n.31
(1978). Prior to SARA, the Superfund
Act made no explicit reference to the
possibility of State liability to
private parties. In its first opinion,
the Court of Appeals held quite correctly
that it was not enough to override the
Eleventh Amendment for States to be
literally included within the terms of a
regulatory statute. Pet. App. 10la.
This is particularly true where, as
here, the States' inclusion subjects
them to liability to the United States.
-15-
Pet. App. 104a. SARA's limited alter-
nation of the statutory scheme should
not have altered this result.
SARA makes no explicit refer-
ence to the Eleventh Amendment and does
not by its terms clearly lift the bar of
immunity. In fact, the plain language
of the amendment on which the Court of
Appeals focused makes it abundantly
clear that State liability was confined
to a carefully limited set of circun-
stances not applicable here. The
amendment to CERCLA's definition of
“owner or operator, is entitled "State
or Local Government Limitation."
(Emphasis supplied). According to the
sponsor of the amendment, it was
intended to narrow, not expand, the
scope of State liability as it stood
7
under the original version of
CERCLA. © See Comments of Senator
Stafford, 131 Cong. Rec. 11619 (daily
ed. Sept. 17, 1985).
The amendment deals entirely
with the circumstances under which a
State or local government can be heid
liable for releases from sites which the
government entities acquire involuntar-
ily. Generally, government units are
not liable for releases fron sites
acquired unwillingly. But this "exclu-
sion" does not apply if the government
agency caused or contributed to the
release." [s Juch a State or local
government," that is, one which has
cause or contributed to a release from a
site acquired involuntarily, is subject
to liability under the statute. 42 U.S.C.
§9601(20)(D).
6The amendment is reproduced in
full on pages 2-3 of this petition.
217
About the only things clear
from this rather convoluted definitional
amendment is that it applies only to
sites acquired by governments invol-
untarily and that it severely restricts
governmental liability for releases from
those sites. It says nothing about the
Eleventh Amendment and it does not
clearly subject States to unlimited
liability to private parties The
obvious purpose of this change in law
was to protect State and local govern-
ments from liability, even to the United
States, if they acquired a site unwill-
ingly. The Conference Committee's report
confirms this view. H.Rep. No. 99-926,
p. 185-186 (1986).
The error in the Third Circuit's
interpretation of SARA becomes apparent
when its implications are fully explored.
-18-
We must remember that the Court of
Appeals relies entirely on the language
of §101(20)(d), 42 U.S.C. §9601(10)(D),
for its conclusion that States generally
are liable to private parties in federal
court. But the new §101(20)(D) imposes
liability on State and local governments
only if they caused or contributed“ to
the release. This "fault" standard
contrasts dramatically with the strict
liability standard which CERCLA always
has been understood to impose. See,
e.g., State of New York v. Shore Realty
Corp., 759 F.2d 1032, 1042 (2d Cir.
1985). In fact, the legislative history
of SARA itself demonstrates that Con-
gress intended for CERCLA liability to
be "strict ... In other words, liabil-
ity may be imposed without fault . 0
H. Rep. 99-253 (119) (1985), p. 15. The
fact that Third Circuit's interpretation
-19-
of the statute would result in a stan-
dard of liability totally at odds with
the one Congress plainly intended to
apply is strong evidence that the court
has misread the statute.
However one reads SARA one
conclusion is inescapable - it hardly is
a clear expression of Congressional
intent to override State immunity from
federal court suit. The Court should
take this early opportunity to set the
matter straight before substantial
resources are wasted in litigation over
claims for which the federal courts lack
jurisdiction.
2. The events which gave rise
to Union Gas' claim occurred in 1980,
many years before CERCLA was amended by
SARA 1986. Yet the Court of Appeals
apparently had no difficulty with
applying the new law retroactively. The
-20-
court analyzed (Pet. App. 67a-72a) the
retroactivity question as if it were a
garden variety one to be judged against
the normal rule - namely, that appellate
courts must apply the law in effect when
the appeal is decided. See, e.g.-,
United States v. Schooner Peggy, 5 U.S.
(1 Cranch) 103, 110 (1801). But the
Court of Appeals made a serious misstep
when it failed to appreciate that the
usual rule is inapplicable where the new
law purports to eliminate pre-existing
Eleventh Amendment immunity.
a. "(T)he Eleventh Amendment
embodies a broad constitutional
principle of sovereign immunity." Welch
vy. Texas Department of Highways and
Public Transportation, slip op. at 16.
"(Tjhe States, in the absence of consent,
are immune from suits brought against
them [in federal court]." Monaco v.
Mississippi, 292 U.S. 313, 329 (1934).
21
The Court repeatedly has emphasized the
central role of consent or waiver in
Eleventh Amendment jurisprudence. See
Atascadero State Hospital v. Scanlon,
473 U.S. 234, 139-240, 246 (1985);
Edelman X. Jordan, 415 U.S. 651, 672
(1974); Employees v. Missouri Dept. of
Public Health and Welfare, 411 U.S. 279,
280-281 n. 1. 285 (1973). The Court's
decisions which address federal schemes
erected, like the one here, pursuant to
Congress' power to regulate commerce,
routinely have looked for evidence of
consent or waiver. ä :
In Parden x. Terminal Ry. Co.,
377 U.S. 184 (1964), the Court concluded
that the Eleventh Amendment was not a
bar to federal jurisdiction under the
Federal Employees' Liability Act, 45
V3. C. §51 et geg because
22
Congress conditioned the right
to operate a railroad in
interstate commerce upon
amenability to suit in federal
court as provided by the Act;
by thereafter operating 4
railroad in interstate con-
merce, Alabama must be taken
to have accepted that condi-
tion and thus to have con-
sented to suit.
Id. at 192. The Court carefully ex-
plained that Congress may not at its
whim make the Eleventh Amendment
disappear. "It remains the law that a
State may not be sued by an individual
without its consent . Alabama, when
it began operation of an interstate
railway .. . necessarily consented to
„„ Ibid.’
The particular result in Parden
was overruled by Welch v. Texas Depart-
tion. The Court did not, however,
overrule Parden's discussion of the need
for State consent. The Court, instead,
reserved the question. Slip op. at 6.
1 *
The idea that a Commerce Clause
statute can eliminate Eleventh Amendment
immunity only if a State can be said to
have waived it by engaging in federally
regulated conduct was reinforced in
Employees of Dept. of Pub. Health &
Welfare v. Missouri Dept. of Pub. Health
& Welfare, 411 U.S. 279 (1972). The
Court noted that Congress certainly has
the power to determine that activities
conducted by the States have such an
effect on interstate commerce as to call
for a uniform national approach. Id. at
284. But it must appear clearly "that
Congress conditioned the operation of
these [State] facilities on the
forfeiture of immunity from suit in a
federal forum." Id. at 285.
The spending power cases have a
included similar analysis. The question
has been viewed as one of waiver or
consent - a court must satisfy itself
that Congress intended to subject States
to suit in federal court and that "the
State by its participation in the program
authorized by Congress had in effect
consented" to suit. Edelman v. Jordan,
415 U.S. 651, 672 (1974). Obviously,
there can be "no knowing acceptance" by
the States of conditions imposed by
Congress, unless they are "cognizant of
the consequences of participation."
Pennhurst State School & Hospital v.
Halderman, 451 U.S. 1, 17 (1981); see
also Atascadero, 479 U.S. at 246-247 and
n.5.
Despite this apparently uniform
approach to Eleventh Amendment questions,
the Court recently has declined to decide
in advance of the necessity whether
State consent is an integral feature of
the immunity analysis in cases involving
28
Congress Article I powers. First, in
U.S. 226, 252 (1985), and more recently,
in Welch v. Texas Department of Highways
and Public Transportation, slip op. at
6, the Court put off the question for
another day. Should the Court conclude
that CERCLA, as amended by SARA, provides
a clear expression of Congress' intention
to override the Eleventh Amendment, then
the question of Congressional authority
to abrogate immunity under the Commerce
Clause absent State consent is squarely
presented.
b. The Court of Appeals per-
ceived the constitutional question to be
"whether Congress Article I commerce
clause powers are sufficient to abrogate
the states' eleventh amendment immunity."
26
Pet. App. 34a. But this is a misper-
ception, for the initial constitutional
issue is far narrower: whether, assuming
Congressional power to eliminate Eleventh
Amendment immunity in laws such as
CERCLA, Congress has the power to do so
retrospectively. The Court of Appeals
failed to address this important
question.
The Eleventh Amendment strikes
a balance between the federal and state
governments * b ly guaranteeing the
sovereign immunity of the States against
suit in federal court Atascadero
State Hospital v. Scanlon, 473 U.S. at
242. While the Court of Appeals quite
correctly observed that all provisions
of the Constitution are of equal
validity, Pet. App. 40a, the court's
decision has the effect, not of reading
27
the Eleventh Amendment together with
Article I, but of sanctioning the
nullification of the Eleventh
Amendment. Although the Third Circuit
believed that its conclusion vas
necessary to give life to Congress'
power to regulate commerce, Pet.
App. 56a-57a, in fact, such a radical
approach hardly is necessary to preserve
Congress' power.
The Eleventh Amendment concepts
of consent and waiver, as developed in
Parden, Employees, Edelman and
Atascadero, properly accommodate
Congressional power exercised under
Article I with the States' historic
immunity. Congress, despite the
Eleventh Amendment, retains the power to
regulate State activities and subject
the States which operate within the
federally regulated domain to federal
court jurisdiction. To accomplish this,
28
Congress must make its intentions known
with unmistakable clarity. Atascadero
State Hospital v. Scanlon, 473 U.S. at
243.
The clear statement rule serves
two purposes. First, it insures that
Congress consciously has focused on the
question of State immunity and resolved
it in favor of subjecting States to
federal court jurisdiction. Welch v.
Texas Department of Highways and Public
Transportation, slip op. at 8. ‘Secondly,
consistent with "the fundamental rule of
jurisprudence" "that a State may not be
sued without its consent, Ex Parte
State of New York No. 1, 256 U.S. 490,
497 (1921), the clear statement require-
ment preserves the States' freedom of
choice. The States are notified that
they may maintain their sovereign
protection by steering clear of the
federally regulated sphere; but, if they
-29-
engage in activities which Congress has
chosen to regulate, the States are deemed
to have consented to federal court juris-
diction. See Edelman v. Jordan, 415 U.S.
at 672-673.
In this case, Pennsylvania
never had a choice. The coal tar was
released in 1980, but the law purporting
to eliminate State immunity was not
passed until 1986. By glossing over
this problem, the Court of Appeals
effectively has read out of the Consti-
tution any vestige of State sovereign
immunity, as that concept has been
understood since the Eleventh Amendment
was added to the Constitution. This
departure from the course of prior
decisions justifies the Court's review.
3. Should the Court reject the
marrow ground for reversal discussed
above, then it must confront the question
fit»
which the Court of Appeals addressed at
length - what if any limitations does
the Eleventh Amendment place on
Congress' Article I power to regulate
commerce? The Third Circuit's
conclusion - that the sole function of
the Eleventh Amendment is to require
that Congress speak clearly when
eliminating its protections - flies in
the face of the Court's unwavering
efforts to preserve real protection for
State sovereignity. At the very least,
the question is of tremendous immediate
importance for all fifty States and the
Federal Government alike. Review at
this time is essential.
Recently, the Court, in the
face of the virtual elimination of the
Tenth Amendment as a source of
judicially enforceable States rights,
„9 8 io MM Lit
effin
Transit Authority, 469 U.S. 528 (1985),
stated in the strongest terms possible
that the Eleventh Amendment continues to
protect the balance of power between the
States and the Federal Government which
is necessary to safeguard our funda-
mental freedoms. Atascadero State
Hospital v. Scanlon, 473 U.S. at 242.
Because “the Commerce Clause das
grown to [such] vast proportions in its
applications ...," Employees v. Missouri
Public Health & Welfare Dept., 411 U.S.
at 285, it effectively writes the
Eleventh Amendment out of the Consti-
tution to conclude that, so long as
Congress makes it intention clear, it
can act under its Commerce Clause power
to regulate virtually every facet of
State government and then subject
recalcitrant States to suit in federal
court.
=32-
In his separate opinion in the
Employees case, Justice Marshall recog-
nized that the power of Congress to
regulate commerce did not necessarily
give Congress the added power to subject
States to suit in federal court absent
their consent. 411 U.S. at 290-298
(Marshall, J., concurring in the result).
He viewed the question as involving, not
some general question of immunity from
regulation, "but merely the suscepti-
bility of the States to suit before a
federal tribunal. Because of the
problems of federalism inherent in
making one sovereign appear against its
will in the courts of the other
federal judicial power has been
restricted to take account of the
interests of federalism. Id. at 294.
This analysis should have informed the
-33-
decision of the Court of Appeals and
moved it to resolve the case in favor of
the Commonwealth.
As Justice Marshall again
observed in Employees, it is impossible
to square with any reasonable notion of
consent or waiver the idea that a State
may be required to choose between
discontinuing "vital public services"
carried out by facilities in place long
before the federal law was passed and
submitting to suit in federal court.
Id. at 296 (opinion concurring in
result). This observation applies even
with greater force here, where not only
was the public apparatus for flood
control in operation before SARA was
enacted, but the specific acts allegedly
giving rise to liability were completed
long before the statute was put into
effect.
*
The Third Circuit's comparison
between Congress' powers under Article I
and under the Fourteenth Amendment (Pet
App. 40a-47a) is inapt. This Court has
held quite clearly that the Fourteenth
Amendment gives Congress the power to
subject unconsent ing States to federal
court jurisdiction. See Atascadero
State Hospital v. Scanlon, 473 U.S. at
238. The Fourteenth Amendment is unique
in this regard - not because it was
ratified after the Eleventh Amendment -
but because it operates as a direct
source for restraints on State activi-
ties which infringe on individual
rights. See Strauder v. West Virginia,
100 U.S. 303, 306-308 (1880). By
contrast, the other powers entrusted to
Congress are primarily for the purpose
of protecting the federal system from
State incursion. It makes sense to tell
-35-
States that they must choose either to
stay out of a federally regulated sphere
or consent to federal court juris-
diction; such a choice makes no sense
when the concern is for protection of
individuals civil rights.
The Third Circuit's revolu-
tionary conclusions, sweeping as broadly
as they do, effectively reduce the
Eleventh Amendment to a requirement for
sharp draftsmanship. In so doing, the
Court of Appeals has emasculated this
important protection for State
sovereignty. The Court should review
this remarkable conclusion.
*
CONCLUSION
The petition for writ of
certiorari should be granted.
Respectfully submitted,
LeROY S$. ZIMMERMAN
Attorney General
By: ANDREW S GORDON
Chief Deput: Attorney General
Chief, Litigation Section
—
Counsel of Record
JOHN G. KNORR
Senior Deputy Attorney General
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
(717) 783-1471
Date: January 21, 1988
1
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-1177
UNITED STATES OF AMERICA,
v.
UNION GAS COMPANY,
v.
COMMONWEALTH OF PENNSYLVANIA
and THE BOROUGH OF STROUDSBURG
UNION GAS COMPANY,
Appellant
On Appeal from the United States
District Court for the Eastern
District of Pennsylvania
(D.C. Civil No. 83-2456)
Argued January 7, 1986
Reargued Following Remand
From the Supreme Court
June 22, 1987
Before: WEIS, HIGGINBOTHAM,
BECKER, Circuit Judges
(Filed November 3, 1987)
-la-
ROBERT A. SWIFT (Argued)
DAVID H. MARION
Kohn, Savett, Marion & Graf
2400 One Reading Center
1101 Market Street
Philadelphia, PA 19107
LAWRENCE A. DEMASE
Rose, Schmidt, Chapman, Duff
& Hasley
900 Oliver Building
Pittsburgh, PA 15222
Attorneys for Appellant
LeROY S. ZIMMERMAN
Attorney General
ANDREW S. GORDON(Argued )
Chief Deputy Attorney General
Chief, Litigation Section
Office of the Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Attorneys for Appellee
ELAINE GAIL SUCHMAN (Argued)
Assistant Attorney General
ROBERT ABRAMS
Attorney General
State of New York
Department of Law
Environmental Protection
120 Broadway
New York, NY 10271
-2a-
JOHN K. VAN DE KAMP
Attorney General
State of California
CLIFFORD L. RECHTSCHAFFEN
Assistant Attorney General
350 McAllister Street
Room 6000
San Francisco, CA 94102
JOSEPH I. LIEBERMAN
Attorney General
State of Connecticut
KENNETH N. TEDFORD
Assistant Attorney General
State Office Building
Room 147
Hartford, CT 06106
LINLEY E. PEARSON
Attorney General
State of Indiana
JACK WATSON
Assistant Attorney General
219 State House
Indianapolis, IN 46204
THOMAS J. MILLER
Attorney General
State of Iowa
JOHN P. SARCONE
Assistant Attorney General
Hoover Building 2nd Floor
Des Moines, IA 50319
-3a-
DAVID L. ARMSTRONG
Attorney General
State of Kentucky
DENNIS J. CONNIFF
Attorney Chief
Office of General Counsel
Kentucky Natural Resources
and Environmental Protection
Cabinet
Capitol Plaza Tower, 5th Floor
Frankfort, KY 40601
J. JOSEPH CURRAN, JR.
Attorney General
State of Maryland
RICHARD M. HALL
Assistant Attorney General
300 W. Preston Street
Baltimore, MD 20201
WILLIAM L. WEBSTER
Attorney General
State of Missouri
SHELLEY A. WOODS
Assistant Attorney General
P. 0. Box 899
Jefferson City, MO 65102
W. CARY EDWARDS
Attorney General
State of New Jersey
JOHN J. MAIORANA
Deputy Attorney General
Richard J. Hughes Justice
Complex
7th Floor CN114
Trenton, NJ 08625
LACY H. THORNBURG
Attorney General
State of North Carolina
P. 0. Box 629
Raleigh, NC 27602
ANTHONY J. CELEBREZZE, JR.
Attorney General
State of Ohio
PAUL D. HANCOCK
Assistant Attorney General
Environmental Enforcement Section
30 E. Broad Street
17th Floor
Columbus, OH 43266
ROBERT H. HENRY
Attorney General
State of Oklahoma
SARA J. DRAKE
Assistant Attorney General
State Capitol
Room 112
Oklahoma City, OK 73105
DAVID L. WILKINSON
Attorney General
State of Utah
FRED G. NELSON
Assistant Attorney General
State Capitol Building
Room 124
Salt Lake City, UT 84114
Attorneys for Amici Curiae
-5a-
OPINION ON REMAND
FROM THE SUPREME COURT
BECKER, Circuit Judge.
This ap veal is before us for a
second time, following remand by the
Supreme Court. It presents the same
ultimate question that we addressed
earlier: does the eleventh amendment bar
defendant-third party plaintiff Union
Gas Company from suing the Commonwealth
of Pennsylvania in federal court for
monetary damages in an action arising
under the Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA, or Superfund), 42 U.S.C.
§ 9601 et seq. (1982). See United States
v. Union Gas, 792 F.2d 372 (3d Cir. 1986)
(Union Gas I). In our earlier decision,
we affirmed the district court's judg-
ment determining that the eleventh
amendment barred the suit. The Supreme
-6a-
Court granted certiorari, vacated our
earlier decision, and remanded the case
“for further consideration in light of
the Superfund Amendments and Reauthori-
zation Act of 1986 [SARA], Pub. L.No.
99-499." Union Gas X. Pennsylvania, 107
S. Ct. 865, 865 (1987).
We now reverse the district
court's judgment, concluding that, in
contrast to the legislative language
upon which we based Union Gag I, SARA
CERCLA with the
unmistakably clear language needed to
provides requisite
abrogate the states' eleventh amendment
1
immunity. This conclusion on speci-
ficity requires us to reach an important,
1. Congressional "abrogation" does not
refer to an impermissible attempt to
override a constitutional guarantee by a
(FOOTNOTE CONTINUED ON NEXT PAGE)
-7a-
—ů ee OMe tay me oe
difficult and controversial issue -- the
power of Congress to abrogate the
eleventh amendment not dy the later
fourteenth amendment but by the commerce
power of the earlier Article I. We
conclude that Congress possessed the
constitutional power to abrogate the
immunity and that we must apply this
valid congressional enactment to the
present case.
(FOOTNOTE CONTINUED )
statutory decree. Rather, in traditional
eleventh amendment Lance, abrogation
refers to the ability of Congress to
create a cause of action for money
damages enforceable by a citizen suit
against a state in federal court. See
, 812 F.2d 311, 314
n.3 (7th Cir. 1987), for cert.
filed, 56 U.S.L.W. 3028 (U.S. July 28,
1987). The issue is thus not congres-
sional power to legislate, but the
effectiveness of a congressional grant
of urisdiction despite the eleventh
amendment s limitation on Article III.
I. FACTS AND PROCEDURAL HISTORY
Our earlier opinion, Union Gas
I, set forth both the facts and the
procedural history of the case in detail.
See 792 F.2d at 374-75. We briefly
review them here.
Predecessors of Union Gas
Company owned and operated a facility
that allegedly released hazardous sub-
stances at a site near Brodhead Creek in
Stroudsburg, Pennsylvania. Long after
the plant had been closed and dismantled,
the Commonwealth of Pennsylvania, acting
pursuant to an easement for flood
control, excavated at the former Union
Gas site and struck a large deposit of
hazardous substances that began to seep
into Brodhead Creek. Alerted to the
seepage, the Environmental Protection
Agency (EPA) ordered a clean-up, which
Pennsylvania and the United States
performed jointly. The United States,
expending a total of approximately
$720,000, reimbursed the Commonwealth
for all of its costs.
The United States sued Union
Gas in the district court for the Eastern
District of Pennsylvania under CERCLA,
42 U.S.C. §§ 9604, 9607 (1982), for
recoupment of costs incurred in cleaning
up the Brodhead Creek spill. Union Gas,
in turn, filed a third-party complaint
against Pennsylvania, alleging that the
Commonwealth had “negligently caused, or
contributed to, the discharge” and
should therefore shoulder at least part
of the clean-up costs. 792 F.2d at 375.
Believing that the eleventh amendment
barred Union Gas' suit against it, the
Commonwealth moved to dismiss, and the
10
district court granted the Common-
wealth's motion. Subsequently, the
United States and Union Gas settled the
principal action and the district court
dismissed the lawsuit.
Union Gas thereupon appealed
the district court's dismissal of
Pennsylvania as a defendant, and a
divided panel of this Court affirmed.*
Noting that the Supreme Court requires
that “Congress must express its inten-
tion to abrogate the Eleventh Amendment
in unmistakable language in the statute
2 Judge Higginbotham dissented,
noting that
“(t)he basic issue is whether
the (CERCLA) definitional
section is sufficiently ade-
quate in itself to find legis-
lative intent to abrogate sov-
X immunity. I think it
9. *
792 F.2d at 384 (Higginbotham, J dis-
senting). On remand he reaffirms the
views expressed therein.
-lla-
itself," Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 243 (1985) (foot-
note omitted), the panel found no such
unmistakable expression of intent to
abrogate in CERCLA.
Union Gas petitioned for
— on October 8, 1986. On
October 17, the President signed the
SARA amendments to CERCLA. Thereafter,
the Supreme Court vacated our prior
opinion and judgment and remanded the
case for reconsideration in light
thereof
II.
The eleventh amendment provides
that:
The Judicial power of the
United States shall not be
construed to extend to any
suit in law or equity, com-
menced or prosecuted against
-12a-
one of the United States by
Citizens of another State, or
by Citizens or Subjects of
any Foreign State.
U. S8. Const. amend. XI. Although the
amendment does not expressly address
suits against a state by its own citi-
zens, the Supreme Court has interpreted
it as embodying state sovereign immunity
and has therefore constructed a presump-
tive bar against suits by citizens of
the defendant state. See Welch v. State
— tat High i Public T x
portation, 107 S. Ct. 2941 (1987); Penn-
hurst State School & Hospital v. Halder-
man, 465 U.S. 89 (1984) (Pennhurst II);
Edelman v. Jordan, 415 U.S. 651 (1974);
Hans v. Louisiana, 134 U.S. 1 (1890);
dee also infra typescript at 27-28
(discussing extent of presumption),
-l3a-
——— Ä— Oe Ann tl ale Renn me a cate am ae alt wee
f
:
1
4
:
A. Standards for Imputing
Congressional Intent to
Abrogate the Eleventh
Amendment
In our original panel opinion,
we noted that eleventh amendment immunity
"can be avoided in only two ways: (a)
Congress can abrogate it by providing
through statute for suits against states,
or (b) states can waive their sovereign
immunity and consent to be sued." Union
Gas I, 792 F.2d at 376 (emphasis in
original). After the vacatur of our
previous opinion, the Supreme Court
decided Welch and noted the same two
exceptions to the eleventh amendment's
reach. See 107 S.Ct. at 2945-46.
We also explained in Union Gas I
that, because of "the eleventh amend-
ment's importance in maintaining the
balance of power between state and
federal interests, 792 F.2d at 376,
-l4a-
the Supreme Court requires Congress to
“express its intention to abrogate the
Eleventh Amendment in unmistakable lan-
guage in the statute itself." Id.
(quoting Atascadero State Hospital v.
Scanlon, 473 U.S. at 243); gee also
Pennhurst II, 465 U.S. 89, 99 (1984);
Quern _v. Jordan, 440 U.S. 332, 342-45
(1979):
The Court has insisted that
the statute, when read liter-
ally, not merely allow suits
against the state, but that
it do so with such specificity
that it is clear that Congress
consciously and directly fo-
cused on the issue of state
sovereign immunity and chose
to abrogate it.
792 F.2d at 376 (citations omitted).
The Supreme Court reaffirmed
these principles in Welch, which empha-
sized that Congress can create an excep-
tion to the reach of the eleventh amend-
ment only if it expresses its intent to
do so in unmistakable language in the
-15a-
|
.
statute itself. Welch overturned, at
least in part, the decision in Parden v.
Terminal Railway of Ala. Docks Dept.,
377 U.S. 184 (1964), in which the Court
had found that Congress had intended to
abrogate states' eleventh amendment
immunity when it enacted the Federal
Employers Liability Act (FELA) and regu-
lated J[elvery common carrier by rail-
road while engaging in commerce between
any of the several States 45
U.S.C. § 51
carrier, held Parden, included state-
owned railroads and thus abrogated their
immunity. Welch
explicitly overruled this holding in
(1982). “Every common
eleventh amendment
Parden, reinterpreting the very same
provision of the FELA as it was
incorporated by reference in the Jones
Act.
-l6a-
Although our later decisions
do not expressly overrule
Parden, they leave no doubt
that Parden's discussion of
congressional intent to negate
Eleventh Amendment immunity is
no longer good law .... In
subsequent cases the Court
consistently has required an
unequivocal expression that
Congress intended to override
Eleventh Amendment immunity.
Accordingly, to the extent
that -
Way is inconsistent with
the requirement that an abro-
ation of Eleventh Amendment
mmunity by Congress must be
expressed in unmistakably clear
language, it is overruled.
107 S. Ct. at 2948 (citations and foot-
note omitted).
B. CERCLA and the Eleventh
Amendment
In Union Gas I, we found that
the language and structure of CERCLA did
not sufficiently evince Congress' inten-
tion to abrogate the states' eleventh
-l7a-
)
.
amendment immunity. SARA has now
changed both the language and structure
of CERCLA, and, as we explain below,
SARA demonstrates Congress' unmistakable
intent to subject the states to suit in
federal court.
In Union Gas I, we acknowledged
both that the liability section of CERCLA
allows those who have incurred clean-up
costs to sue any person“ who owned or
operated the waste site for all costs
incurred in the removal effort, 42
U.S.C. § 9607(a) (1982), and that the
definitional section defines person to
include the "United States Government,
Ca! State, municipality, commission,
political subdivision of a State, or any
interstate body." 42 U.S.C. § 9601(21)
(1982). We found this language insuf-
ficient to abrogate the eleventh amend-
ment for two reasons.
-18a-
First, the inclusion of a state
in the § 9601(21) definition of persons
allows the United States, which does the
vast bulk of clean-up work, to sue states
for reimbursement under § 9607(a). We
concluded that, because of the structure
of CERCLA, the language that allows the
federal government to sue states cannot
be deemed to express Congress unmistak-
able intention to abrogate the states
eleventh amendment immunity from suits
by individuals against state govern-
ment.” Second, we noted the significance
Irne eleventh amendment clearly
2 statutes that provide for suits
y the federal government against the
states, see,
„ United States X
Wiseiseipgl 380 US. 128, 140-41 (1965)
yet such statutes do not operate to
abrogate the states’ constitutional
immunity from suits in federal court
brought by ‘individuals. {See Employees
, 285-86 (1972).
194
{
of § 9607(g), which explicitly waives
the United States' sovereign immunity.”
We interpreted the existence of this
explicit waiver of federal sovereign
immunity as a further indication that
the definitional section was insuffi-
cient, in and of itself, to subject a
at the time, f 9607(g) read in its
entirety:
Each department, agency, or
instrumentality of the execu-
tive, legislative, and judicial
branches of the Federal Govern-
ment shall be subject to, and
comply with, this chapter in
the same manner and to the same
extent, both procedurally and
substantively, as any non-
overnmental entity, including
iability under this section.
42 U.S.C. § 9607(g) (1982). This waiver
was amended and recodified at 42 U.S.C.A.
§ 9620(a)(1) (West Supp. 1987) by SARA.
In order to avoid c usion, we continue
to refer to that provision as § 9607(g).
-20a-
state governmental body to suit, for
reading CERCLA's definitional section to
waive federal sovereign immunity would
render § 9607(g) superfluous. We there-
fore reasoned that to impute to Congress
the intention to abrogate states immu-
nity we would require a specific refer-
ence to states' immunity or some other
explicit indication of abrogation. See
Union Gag I, 792 F.2d at 380 ("abrogation
of states' eleverth amendment immunity
requires no less a showing of congres-
sional intent than does waiver of federal
sovereign immunity").
In SARA, however, Congress
enacted the unmistakably clear statutory
language that demonstrates its intent to
abrogate the states' eleventh amendment
212
immunity. Section 101 of SARA, entitled
"Amendments to Definitions,” adds a new
paragraph to CERCLA which defines "owner
or operator":
rue term “owner or operator”
does not include a unit of
State or local government
which acquired ownership or
control involuntarily through
bankruptcy, tax delinquency,
abandonment, or other circum-
stances in which the government
involuntarily acquires title
by virtue of its function as
— 8 The exclusion
provid under this paragraph
shall not apply to any State
or local government which has
caused or contributed to the
release or threatened release
of a substance hazardous from
the facility, and such a State
cost
recovery actions).
42 U.S.C.A. § 9601(20)(D)(West Supp. 1987)
(emphasis supplied).
-22a-
Two points of analysis support
our conclusion that the amendment to
§ 9601 provides the requisite unmistak-
ably clear language. First, the plain
language of the statute indicates a clear
intention to abrogate. Congress provided
that a state “shall be subject to the
provisions of this Act in the same manner
and the same extent" as any nongovern-
mental entity. As the emphasized portion
of § 9601(20)(D) demonstrates, Congress,
in amending CERCLA, specifically contem-
plated the unique position of states in
the constitutional scheme and, in cer-
tain circumstances, chose to make them
liable to suit by individuals in federal
court.
Second, SARA now applies exactly
the same waiver to states that it applies
to the federal government. The language
-23a-
of the final portion of § 9601(20)(D)
replicates for all practical purposes
§ 9607(g), which waives the sovereign
immunity of the federal government.
Thus, CERCLA, as amended by SARA, treats
the United States and the states simi-
larly -- enumerating both as "persons"
and withdrawing the immunity from both.
Even if we were to require a greater
showing of congressional intent to
abrogate the states’ eleventh amendment
immunity than is necessary to waive the
federal government's sovereign immunity,
gee Union Gas I, 792 F.2d at 380 n. 13.
this higher threshold would be satisfied
by SARA. SA..\'s definitional section,
which replicates the federal waiver and
which specifically contemplates the func-
tion of the states as separate sover-
eigns, addresses this concern.
-24a-
*
In Union Gag I. the panel,
relying on the special federal waiver
section of CERCLA, believed that Con-
gress, by explicitly waiving federal
sovereign immunity in § 9607(g), demon-
strated that more than enumeration in a
definitional section was required to
achieve governmental immunity. Although
this argument based on § 9607(g) is no
longer tenable, given the SARA amend-
ments to that section, we gust neverthe-
less grapple with the question of whether
definitional language alone may express
congressional intent as to abrogation.
As a general matter, we believe that mere
enumeration in a definitional section
remains insufficient as evidence of
congressional intent to abrogate. In
our case, however, the definitional
section contains a substantive direction
that “state or local government shall be
-25a-
subject to the provision of [CERCLA] in
the same manner and to the same extent,
both procedurally and substantively, as
any nongovernmental entity including
liability under section 107." 42 U.S.C.A.
§ 9601(20)(D)(West Supp. 1987). Although
found in a definitional section, the
language is not definitional in charac-
ter; it far exceeds the bare enumeration
we found insufficient to indicate con-
gressional intent to abrogate in Union
Gas I On the contrary, its clear
mandate, replicating the language of the
federal waiver, satisfies our concerns
about congressional intent to render the
states amenable to suit.
A third point arises from SARA's
amendment of the act's federal immunity
waiver in § 9607(g). In Union Gag I, we
-26a-
found that the existence of a special
section waiving federal immunity indi-
cated that Congress had given special
thought to waiving federal immunity and
had not given equivalent attention to
the question of state immunity. Essen-
tially we inferred that Congress, by not
providing an analogous state waiver, did
not intend to abrogate the eleventh
amendment. This federal waiver, now
codified at 42 U.S. C. A. 5 9620(a) (1)
(West Supp. 1987), has been amended,
however, to provide that "(njothing in
this section shall be construed to affect
the liability of any person or entity
under sections 9606 [i.e., abatement
actions] and 107 [i.e., cost recovery
actions] This amendment precludes the
reading of § 9607(g) employed in Union
Gas I, which construed the federal waiver
"to affect the liability of" states.
-27a-
|
|
|
The explicit abrogation of the
eleventh amendment in SARA distinguishes
this case from Employees of Department
of Public Health & Welfare v. Missouri
Department of Public Health & Welfare,
411 U.S. 279 <1972). As we noted in
Union Gas I, Employees demonstrates that
the statutory suggestion that states
might be sued, when found in a provision
separate from the one that creates dhe
cause of action, may be insufficient to
demonstrate congressional intent. Here,
too, there are separate provisions con-
cerning liability and amenability of
states to suit in federal court. How-
ever, the clear congressional language
provided by SARA overcomes this concern.
In Union Gas I, we did not
confine our examination to the words of
CERCLA. Rather, because these sections
-28a-
had not by their language evinced the
congressional intent to abrogate, we
canvassed other areas of the statute for
such an indication. Having found that
Congress in SARA has now enacted clear
statutory language to abrogate the
states' eleventh amendment immunity in
§§ 9601(20)(D), 9620¢a)(1), we need not
address the other areas. Even if they
remain inconclusive after SARA, they do
not operate to nullify the clear statu-
tory language found in other provisions.
For example, SARA adds a citizen
suit provision to CERCLA that provides
for suits “against any person (including
the United States and any other govern-
mental instrumentality or agency, to the
extent permitted by the eleventh amend-
ment to the constitution) 42 U.S.C.A.
§ 9659(a)(1)(West Supp. 1987). Waile
this provision
expressly prevents
abrogation of eleventh amendment immunity
-29a-
:
in citizen suits under CERCLA, it does
not operate to nullify such abrogation
in § 9607 liability actions. To the
contrary, its inclusion implies that
CERCLA had elsewhere abrogated states
eleventh amendment immunity, but did not
extend that § 9659
abrogation to
citizen's suits. Congress had no reason
to declare the states immune from
citizens' suits unless it had abrogated
the states' eleventh amendment immunity
elsewhere in the act. By holding that
Congress abrogated the eleventh amend-
ment for some provisions of CERCLA, we
give effect to the § 9659(a)(1) limita-
tion on citizen's suits. See 2A Suther-
land Statutory Construction § 46.06 (4th
ed. 1984 rev.)("A statute should be con-
strued so that effect is given to all its
-30a-
provisions, so that no part will be
inoperative or superfluous.").
Moreover, distinguishing citi-
zens' suits from liability actions for
amendment purposes makes
perfect sense in light of the differing
eleventh
functions of the two provisions.
Section 9659 suits are designed to allow
citizens, acting as private attorneys
general to bring civil actions to ensrre
CERCLA.
effective implementation of
Section 9706 suits, on the other hand,
provide compensation for liability, and
hence are more defined ard circumscribed
by actual harms already suffered.
Therefore, it is perfectly reasonable to
assume that Congress intentionally
limited the reach of citizen actions but
chose not to do so for liability suits.
We read the applicable Supreme
Court precedent to instruct is to look
-3la-
first at Congress' statutory language as
the best indication of intent to abrogate
the eleventh amendment; only in the
absence of clear language are we to rely
on the legislative history of an enact-
ment. See Hutto v. Finney, 437 U.S. 678,
698 n.31 (1978). Although we need not
rely on the legislative history of SARA
because we find that the amendments have
provided the requisite clear language,
the legislative history supports our
holding and would sustain it even were
the statutory language less clear.
Originally, neither the Senate
nor House version of SARA § 101(b)(1)
copied the waiver language of § 9607 (g)
eleventh amendment
to abrogate state
immunity. However, the conference com-
mittee inserted language that replicated
the federal waiver into the definition
section, stating that its purpose was
-32a-
"to clarify that if the unit of govern-
ment caused or contributed to the release
Or threatened release in question, then
such unit is subject to the provisions
Of CERCLA, both procedurally and sub-
stantially, as any non-governmental
entity, including liability under section
107 and contribution under section 113.
"H.R. Conf. Rep. No. 962, 99th Cong.,
2d Sess. 185-86, reprinted in 1986 U.S.
Code Cong. & Admin. News 3276, 3278-79.
To the extent that the added language
serves to clarify“ CERCLA, it amounts
to a subsequent declaration of congres-
sional intent that deserves great weight.
Red Lion Broadcasting v. EC. C.. 395
U.S. 367, 380-82 (1969).
In sum, SARA contains statutory
language that demonstrates the requisite
intent to
unmistakable congressional
abrogate the states' eleventh amendment
-33a-
ote ae
immunity from suit, and SARA's legis-
lative history corroborates this view.
III. CONGRESSIONAL POWER TO ABROGATE
Appellee Commonwealth of Penn-
sylvania and the amici states correctly
note that, if we find that Congress has
clearly indicated its intent to abrogate
the eleventh amendment, we must face a
constitutional issue: whether Congress'
Article I commerce clause powers are
sufficient to abrogate the states' elev-
enth amendment immunity. As Justice
Marshall structured the question, abro-
gation concerns a two-step inquiry:
(1) did Congress . effec-
tively lift the State's pro-
tective veil of sovereign
immunity; and (2) even f
Congress did lift the State's
general immunity, is the exer-
cise of federal judicial power
-34a-
barred in the context of this
case in light of Art. III and
the Eleventh Amendment?
Employees, 411 U.S. at 287-88 (Marshall,
J., concurring in the result); see also
Edelman, 415 U.S. at 672 (inquiring into
"threshold fact of congressional author-
ization"); cf. In re McVey Trucking, 812
F.2d 311, 314 (7th Cir. 1987) (reversing
the order of this two-step inquiry),
petition for cert. filed, 56 U.S.L.W.
3028 (U.S. July 28, 1987). We therefore
turn to the issue of Congress' power to
allow citizen suits against the states
pursuant to CERCLA, despite the eleventh
amendment's limitation on Article III
federal jurisdiction.
5In Union Gas I, we first decided
the statutory issue of congressional
intent to abrogate. Having found no
such intent, we did not need to reach
(FOOTNOTE CONTINUED ON NEXT PAGE)
-35a-
:
4
4
:
i
:
i
;
4
i
:
:
4
:
;
)
}
i
{
The Commonwealth and amici argue
that only certain types of exercise of
congressional power may abrogate the
eleventh amendment, and that the Consti-
tution does not grant Congress the power
to create an exception to the eleventh
amendment in CERCLA. They argue that
Congress may only directly abrogate the
eleventh amendment when it acts pursuant
to constitutional amendments passed after
the eleventh. The Commonwealth and amici
argue that, "because of the unique char-
acter of the Fourteenth Amendment,
Congress may, through an unequivocal
expression of its intent, subject an
unconsenting state to a private suit in
(FOOTNOTE CONTINUED )
the constitutional issue. See Ashwander
„„ ae Gene eee
v. Tennessee Valley Auth
347 (1936) (Brandeis, J., concurring)
(avoiding unnecessary constitutional
issues); Siler v. Louisville & Nashville
R. R., 213 U.S. 175, 193 (1909) (same).
-36a-
federal court when seeking to enforce
the Fourteenth Amendment."' Brief of Amici
at 9. According to this reasoning, the
thirteenth, nineteenth, and twenty-
fourth amendments would also allow Con-
gress to limit the eleventh amendment
because they (1) were ratified with an
awareness of the eleventh amendment, (2)
restrict the powers of states, and (3)
grant authority to Congress to enact
enforcing legislation.
We fully agree with the conten-
tion that Congress may override the
eleventh amendment when acting pursuant
to the powers enumerated above. We dis-
agree, however, with the argument that
congressional power to abrogate the
eleventh amendment is limited only to
those powers granted by the Constitution
to Congress after the ratification of
the eleventh amendment. Our reasoning
is set forth below.
-37a-
The Supreme Court has explicitly
recognized that the fourteenth amendment
grants Congress the power to subject
states to suit in federal court notwith-
standing the limitations of the eleventh
Fitzpatrick v. Bitzer, 427
(1976).
amendment.
U.S. 445 enacted
Congress
CERCLA, however, pursuant to its Article
I commerce clause power, gee Hodel v.
Virginia Surf Mini i Rec] +
Association, 452 U.S. 264, 282 (1981);
Wickland Oil Terminals v. Asarco, Inc.,
654 F.Supp. 955, 957 (N.D. Cal. 1987),
not its power under section five of the
fourteenth amendment. We must therefore
decide whether Congress may subject
states to private suits in federal court
when acting pursuant to its Article I
commerce clause powers. This question
has never been directly answered by the
Supreme Court, which has chosen either
-38a-
to expressly reserve the question, gee
U.S. 226, 252, (1985), or to “assume,
without deciding or intimating a view of
the question, that the authority of
Congress to subject consenting States to
suit in federal court is not confined to
§ 5 of the Fourteenth Amendment."' Welch,
107 S. cc. at 2946. Our analysis of
Congress authority to subject states to
suit under Article I requires an examina-
tion of the significance of distinctions
between Article I and the fourteenth
amendment, the history and language of
the eleventh amendment, and the inherent
protections offered to state sovereignty
in the constitutional framework.
-39a-
Amendment: Must We Read
the Constitution on a Time-
line?
As a threshold matter, we dis-
agree with Appellee's submission that
only the amendments following the elev-
enth may override it. This reasoning
would require that we read the Constitu-
tion on a timeline, a proposition we
reject. Rather, we believe that we must
interpret every provision in the Consti-
tution in the light of the entire docu-
ment. As the Supreme Court recognized
long ago,
[the Constitution of the
United States, with the several
amendments thereof, must be
regarded as one instrument,
all of whose provisions are to
be deemed of equal validity.
It would, indeed, be most un-
fortunate if the immunity of
the individual states from
suits by citizens of other
states, provided for in the
-40a-
Eleventh Amendment, were to be
interpreted as nullifying those
other provisions which confer
power on Congress to regulate
commerce among the several
states, which forbid the states
from entering into any treaty,
alliance or confederation, from
passing any bill of attainder,
ex post facto law or law in-
pairing the obligation of con-
tracts . . — all of which
Provisions existed before the
adoption of the Eleventh
Amendment, which ghall exist,
and which would be nullified
and made of no effect, if the
Judicial power of the United
States could not be invoked to
protect citizens affected by
the passage of state laws
disregarding these constitu-
tional limitations.
Prout v. Starr, 188 U.S. 537, 543 (1903);
accord Richardson x. Ramirez, 418 U.S.
24, 42-43 (1974). In Billings v. United
States, 232 U.S. 261, 282 (1914), the
Court further recognized that "the
Constitution is not self-destructive.
In other words, that the powers which it
confers on the one hand it does not imme-
diately take away on the other . 3
—41a—
2
4
—
Thus, even though the fourteenth
amendment gives Congress the power to
create causes of action that would
subject a state to private suits in
federal court, [the fact that the
Fourteenth Amendment was enacted after
the Eleventh Amendment does not abrogate
the latter in cases involving the former.
The two amendments must be interpreted
in light of each other." Townsend X.
Edelman, 518 F.2d 116, 120 (7th Cir.
1975). Similarly, the Court of Appeals
for the Seventh Circuit in McVey Trucking
refused to accept the notion that the
fourteenth amendment "repealed" the
eleventh and hence rejected the premise
that only post-fourteenth amendment
congressional powers could serve as the
basis for legislation to abrogate the
amendment. 812 F.2d at 316. We, too,
reject the argument that Congress may
override the eleventh amendment only
-42a-
under authority granted after the
enactment of the eleventh amendment.
Although we recognize that
Congress must act under a plenary grant
of constitutional authority to abrogate
see McVey
Trucking, 812 F.2d 320 (7th Cir. 1987)
(citing Garcia v. San Antonio Metropoli-
tan Transit Authority, 469 U.S. 528
(1985)), we disagree with the appellant's
the eleventh amendment,
contention that the fourteenth amend-
ment's grant of plenary powers to
Congress is unique and thus distinguish-
able from Congress plenary power to
regulate interstate commerce as granted
in Article I. In this matter we are
persuaded by the reasoning of McVey
Trucking, where the Court examined
possible distinctions between the four-
teenth amendment and Article I for pur-
poses of eleventh amendment abrogation
and found them untenable.
-43a-
In a thorough, scholarly opin-
ion, authored by Judge Flaum, McVey
Trucking reviewed and rejected the notion
that the fourteenth amendment represents
an ultra-plenary“ grant of authority. °
812 F.2d at 319-23. McVey Trucking also
rejected the notion that "Fitzpatrick
could be read to suggest that each grant
of power contained in the Constitution
must be linked to a provision that, by
[its] own terms' limits state authority
in order for Congress, acting under that
power, to create a cause of action for
money damages against a state." 812 F.2d
The court
at 320 (citation omitted).
observed that any plenary grant of power
6judge Flaum's opinion in
carefully examined the extent to which
the eleventh amendment limits Congress'
Article I powers and held that Congress
may make states amenable to suit in
federal court for money damages under
the bankruptcy clause. U.S. Const.
Ast. I, 980. ei. 4.
Aa-
to Congress is a limitation on state
authority, and that the two provisions
were not distinguishable on the basis of
the explicit reference to states in the
fourteenth amendment. Id at 321. We
are convinced, as well, that the power
of these two sections of the Consti-
tution does not vary for the purposes of
abrogating state immunity from suit.
We acknowledge that the Court
has drawn a distinction between Article
I and the fourteenth amendment in
divining congressional intent Hutto
v. Finney suggests something of a sliding
Indeed. in Union Gas I, we
concluded that where the statutory
language is lacking, the Supreme Court
required "virtually overwhelming"
evidence from the legislative history of
congressional intent to abrogate. 792
F.2d at 378.
-45a-
ee ee ee
— —ñI4ͤ— — ———H ———————-—-ʒüac
scale for the clarity of congressional
expression of intent, depending on the
source of the congressional power under
which Congress is legislating. Where
Congress acts pursuant to its Article I
power, which "has grown to vast propor-
tions in its applications," Employees,
411 U.S. at 285 (FLSA regulations), it
must do so in “unmistakable language in
the statute itself." Atascadero, 473
U.S. at 243. However, when Congress
legislates pursuant to § 5 of the four-
teenth amendment, "whose other sections
by their own terms embody limitations on
state authority," Fitzpatrick, 427 U.S.
at 456, the standard for demonstrating
congressional intent is less strict and
may be supported by the legislative
Hutto v. Finney, 43/7
U.S. at 698 & n 31. Although a clearer
history alone.
expression of intent is required for an
-46a-
Article I enactment, the requirement is
not because the fourteenth amendment is
a stronger grant of power. Rather,
congressional intent to abrogate is
easier to infer from a fourteenth amend-
ment enactment.
in Chisolm v. Georgia, 2 U.S. [2 Dall.]
419 (1793), in which the Court construed
Article III's extension of the judicial
power over controversies "between a State
-47a-
= —
and Citizens of another State“ to make
states amenable to suit in federal
court by citizens of another state.®
8scholars have argued the eleventh
amendment was only intended to reach
diversity jurisdiction, not federal
question jurisdiction as is involved
here. The point out that the problem
with the Chisolm decision was not its
abrogation of state immunity in —
but its abrogation in a diversity
setting in which Georgia law would not
have immunized the state from suit. As
Professor Amar points out in Qf
j ism, 96 Yale L.
J. 1425, 1467-72 (1987), the action in
Chisolm was for assumpsit -- a state law
cause of action. Historically, there-
fore, it may be wiser to view the
eleventh amendment as a response to an
Erie-type problem, rather than a problem
of state sovereignty. This interpre-
tation also explains what some have
characterized as the inadvertent
exclusion in the amendment of suit
between state and citizens of that
state. Because this category of suits
is immune from federal diversity, and
immune to a Chisolm-like incursion, the
framers did not include it in the
amendment. See id. at 1474.
(FOOTNOTE CONTINUED ON NEXT PAGE)
-48a-
See Pennhurst II, 465 U.S. at 91-98;
Petty, 359 U.S. at 276; McVey Trucking,
812 F.2d at 317. In swift response to
this construction of Article III,
Congress and the States passed the
eleventh amendment to provide: "The
Judicial power of the United States
shall not be construed to extend to any
suit in law or equity, commenced or
prosecuted against one of the United
(FOOTNOTE CONTINUED )
We need not address the historical
argument that the eleventh amendment was
never intended to reach federal question
jurisdiction. It is sufficient for us
to note that the eleventh amendment was
intended as a limitation on judicial,
not congressional, power. Amar also
notes that the language of the eleventh
amendment stating that "the judicial
ower shall not be construed to"
ndicates that its drafters intended to
restrict judicial, not congressional
abrogation of sovereign immunity. Amar
points out that an earlier draft of the
amendment used "shall not extend," but
that such language might have prevented
even affirmative jurisdictional grants.
Id. at 1482. This argument supports our
conclusion.
-49a-
States by Citizens of another State, or
by Citizens or Subjects of any Foreign
State. U.S. Const. amend. XI.
In light of the circumstances
surrounding the passage of the eleventh
amendment, this language has been con-
strued to mean that courts cannot,
pursuant to their Article III powers,
subject states to suit. Thus, language
of the amendment does not, nor was
it ever intended to, limit Congress'
Article I powers; rather, it limits the
courts' power to construe the grant of
judicial power in Article III to abrogate
the state's presumptive immunity from
diversity suits. See Tribe, Inter-
Federalism, 89 Harv. L.Rev. 682, 693-99
(1976).
-50a-
Courts have broadly extended
the principles of state sovereign
immunity that underlie the eleventh
amendment and have applied them to cases
outside the technical language of the
amendment. For example, the eleventh
amendment does not, by its terms, limit
all Article III jurisdiction. The words
of the amendment seem to limit only the
diversity jurisdiction over disputes
“between a State and Citizens of another
State.“ See McVey Trucking, 812 F.2d at
317-19; Fletcher, A Historical Interpre-
tation of the Eleventh Amendment: A
Stan. L.Rev. 1033 (1983). However, in
Hans v. Louisiana, 134 U.S. 1 (1890),
the Court held that the eleventh
amendment barred suits based on federal
-~5la-
question jurisdiction. That case
provides an example of the breadth of
application. Although the eleventh
amendment does not on its face address
federal question jurisdiction, the
Supreme Court has instructed that "we
cannot rest with a mere literal
application or assume that the
letter of the Eleventh Amendment exhausts
the restrictions upon suits against non-
consenting States. Behind the words of
the constitutional provisions are postu-
lates which limit and control." Princi-
pality of Monaco v. Mississippi, 292
U.S. 313, 322 (1934).
The theory of sovereign immu-
nity, which undergirds the eleventh
amendment, has thus led the Supreme
Court to fashion a presumption that a
congressional enactment conferring
general federal question jurisdiction
-52a-
does not operate to subject states to
suit. See Hans, 134 U.S. at 13; McVey
Trucking, 812 F.2d at 318 ("as a sover-
eign, a state is presumptively immune
from suit in a federal court even if the
cause of action arises under federal
law"). As we have discussed at length
in Part I, only Congress' clearly artic-
ulated decision to subject the states to
suits by private individuals in federal
court operates to rebut this presumption.
The presumption of immunity and the high
threshold for its rebuttal animate the
notion of sovereignty that underlies the
eleventh amendment. Given this strong
presumption, where Congress has clearly
articulated its desire to abrogate the
eleventh amendment, any further expan-
sion of the eleventh amendment is
unwarranted.
-53a-
In sum, the language and
history of the eleventh amendment
provide substantial checks on the
ability of the federal government to
subject states to suit in federal
court. First, the Supreme Court has
extended the reach of the amendment,
granting state immunity from suits by
citizens of the same state, and from
suits involving many federal questions.
Second, Congress may only override the
eleventh amendment. when acting under a
grant of plenary authority; the presump-
tion of immunity is high, however, and
the congressional exercise of a grant of
plenary authority alone is not enough.
Thus, where the Court has recognized
congressional power to override the
amendment, as in section 5 of the four-
teenth amendment, the Court has required
-54a-
that Congress speak with unmistakable
clarity.
Such limitations on abrogation
of the eleventh amendment protect state
sovereignty consistent with the amend-
ment's purposes, and limit the reach of
congressional authority to override under
Article I. Moreover, as we discuss in
the following section, implicit in the
constitutional plan are limitations on
Congress' power and incentive to abrogate
state sovereign immunity under Article
I. As the final phase of our analysis
of the question of congressional power
to abrogate eleventh amendment protection
under the aegis of Article I, we now
consider these limitations within the
framework of the constitutional design.
-55a-
C. mne bitut; 1 Desi
1. Checks and Balances
The eleventh amendment reflects
our system of checks and balances by
limiting the power to abrogate sovereign
immunity to the freely elected legisla-
tive branch. This design permits the
legislative branch limited power to
abrogate state immunity pursuant to
grants of constitutional authority,
while preventing the judiciary from
independently using Article III to do
che same. By adopting the eleventh
amendment. Congress and the states
expressed their desire to limit judicial
action. Congress, however, never meant
to curtail its own power to limit
sovereign immunity where appropriate.
Indeed, holding that states maintain
their immunity in the face of national
-56a-
control "is inconsistent with the
constitutional plan.“ Tribe, 89 Harv.
L.Rev. at 694-95 (footnotes omitted).
This dichotomy between the
power of the judiciary and the Congress
is particularly significant in the area
of commerce clause regulation. In this
regard, it is pertinent that CERCLA is a
commerce clause regulation. As Justice
Brennan has stated in dissent, "judicial
interpretation of our Constitution
settled since the time of Mr. Chief
Justice Marshall postulate[s]
that the Constitution contemplates that
restraints upon exercise by Congress of
its plenary commerce power lie in the
political process and not in the
judicial process. National League of
Cities v. Usery, 426 U.S. 833, 857
(1976) (Brennan, 3. dissenting).
Justice Brennan's dissenting position,
-57a-
LI.
which mirrors the majority position in
the case overruled by Usery, Maryland v.
Wirtz, 392 U.S. 183 (1968), has again
become to be the law of the land.
; : ; — —— 1 1
auth. 469 U.S. 528, 550-52 (1985). In
contrast, our system of checks and
balances dictates that the unelected
federal judiciary, isolated from the
political pressures that inhere in the
need for reelection, must be constrained
by such a constitutional restriction
from abrogation of sovereign immunity.
In addition, the requirement of
a clear statement before Congress may
override the eleventh amendment assures
that congressional intent will be
followed, gee Peel, 600 F.2d at 1081,
and serves to check judicial inter-
pretation of statutes. See Welch, 107
-58a-
S.Ct. at 2946; cf. American Fire &
Casualty Co. v. Finn, 341 U.S. 6, 17
(1951) ("The jurisdiction of the federal
courts is carefully guarded against
expansion by judicial interpreta-
tion) To extend the eleventh
amendment to render nugatory a clear
expression of congressional intent to
abrogate state immunity would thwart the
Constitution's plan by ignoring’ the
representative nature of Congress.
The scope of Congress' power to
abrogate the eleventh amendment under
Article I is also limited by states'
representation in Congress. The
Congress, comprised wholly of delegates
chosen by states (through their
subdivisions), will respond to state
needs and therefore does not require the
-59a-
eleventh amendment limitation. The
Supreme Court in Garcia, 469 U.S. at
550, observed that "the principal means
chosen by the Framers to ensure the role
of the States in the Federal system lies
in the structure of the Federal Govern-
ment itself." And, as Professor Tribe
notes, it has generally been recognized
that the states are represented in
Congress and that Congress will be
attentive to concerns of state
governments as separate sovereigns."
Tribe, 89 Harv. L.Rev. at 695 (footnote
omitted).
2. Federalism
Extending the eleventh amend-
ment to prohibit congressional power to
abrogate under Article I would ignore
the states' representation in Congress
-60a-
and their consent to diminished power
implicit in their acceptance of the
Constitution. The Supreme Court itself
has recognized that in some situations
states have given up their immunity in
the constitutional plan: "States of the
Union still possess[{] attributes of
sovereignty, shall be immune from suits,
without their consent, save where there
has been ‘a surrender of this immunity
in the plan of the convention
Principality of Monaco, 292 U.S. at
322-23 ‘quoting The Federalist No. 81
(A. Hamilton))(footnote omitted).
Thus, just as Congress acting
pursuant to section 5 of the fourteenth
amendment is "exercising legislative
authority that is plenary within the
terms of the constitutional grant
under one section of a constitutional
amendment whose other sections by their
-6la-
own terms embody limitations on state
authority," Eitzpatrick, 427 U.S. at
456, so Congress acts under its Article
I powers to "regulate Commerce
among the several States," § 8, cl. 3,
and [tlo make all Laws which shall be
necessary and proper for carrying into
Execution the foregoing Powers." § 8,
el. 18. By assent ing to federal
authority to regulate commerce, the
states necessarily surrendered their
sovereignty over that area. "There was
not a State in the Union, in which there
did not, at that time, exist a variety
of commercial regulations . By
common consent, those laws dropped
lifeless from their statute books, for
want of sustaining power that had been
-62a-
relinquished to Congress. Gibbons v. congress authority over
Ogden, 22 U.S. (9 Wheat.) 1, 11, 226 interstate commerce stems from the
(1824). plenary powers that have been granted to
our national legislature and represents
a displacement of state sovereignty.
The commerce clause comprises, See Garcia, 469 U.S. at 548-49 (citing
however, not only the direct
source of the most important both Art. I, § 8 and the fourteenth
peace-time powers of the
9 As one commentator has noted,
amendment as "sharp contraction({s] of
National Government; it is
also, except for the due 15
process of eer state sovereignty"). Hence, every
Amendment XIV, the most impor- federal appellate court to have addressed
tant basis for judicial review
in limitation of State power.
The latter, or restrictive,
operation of the clause was,
in fact, long the — 1 2
tant one from the point of view
ef GCanatitubionn’, tan. G2 the federal court, the eleventh amendment
approximately 1400 cases
which reached the Supreme
Court under the clause prior
to 1900, the overwhelming pro-
the question has found that Congress
may subject the states to suit in
ro to A geaaeae from State (FOOTNOTE CONTINUED)
E. c 1 The Constitution and What it Commerce Clause restrains state actions
3 that affect interstate commerce in a
Means Today 67 (14th ed. 1978). Hence,
even where Congress has not acted, the ä 96 617, 623-24
(FOOTNOTE CONTINUED ON NEXT PAGE) (1978).
-63a- -~64a-
notwithstanding, when acting pursuant to
its plenary powers. See McVey Trucking,
812 F.2d at 328; County of Monroe v.
Florida, 678 F.2d 1124, 1128-35 (2d
Cir. 1982) (congressional power over
extradition, Art. IV, § 2, cl. 2) cert.
denied, 459 U.S. 1104 (1983); Peel v.
Florida Department of Transportation,
600 F.2d 1070, 1074-82 (th Cir.
1979)(war powers clause, Art. I, § 8,
cl. 11-13); Mills Music, Inc. v.
Arizona, 591 F.2d 1278, 1285 (9th Cir.
1979) (copyright and patent clause, Art
I, § 8, cl. 8); Jennings v. Illinois
Office of Educ., 589 F.2d 935, 937-44
(7th Cir.) (war powers clauses), cert.
denied, 441 U.S. 967 (1979). We agree.
-65a-
3. Conclusion
The constitutional scheme of
checks and balances places powerful
constraints, both structural and polit-
ical, upon the abrogation of the states'
eleventh amendment immunity. However,
the participation of the states in our
federal scheme has resulted in a
relinquishment of state authority in the
commerce area. We conclude that a
constitutional grant of plenary
authority to Congress, when stated with
unmistakable clarity, as here, is
sufficient to support legislation that
subjects the states to suit in federal
court. We, therefore, hold that when
acting under the commerce clause to
enact CERCLA and amend it with SARA,
-66a-
Congress possessed the power to abrogate
the eleventh amendment . 10
IV. Retroactivity
Having found that Congress, in
enacting CERCLA and SARA, (I) explicitly
intended to provide for suits by a
citizen against a state, and (2) had the
constitutional power to so abrogate the
eleventh amendment for Superfund suits,
we need only decide one remaining
issue. SARA's grant of jurisdiction was
not effected until the amendment became
law on October 17, 1986, long after the
lozecause we find that Congress
lifted the states eleventh amendment
immunity at least when it emacted SARA,
but see infra en. 11, we need not
distinguish between court's powers to
grant retroactive or prospective relief.
In the absence of an eleventh amendment
problem, either or both may be appro-
priate. See Fitzpatrick, 427 U.S. at
456-57; Peel, 600 F.2d at 1081-82.
-67a-
Brodhead Creek excavation, the initi-
ation of Union Gas third-party com-
plaint, and the initial appeal to us.
We must therefore inquire whether SARA's
jurisdictional grant controls the
instant dispute.
Generally speaking, we must
account for a change of law on appeal.
See Poleto v. Conrail, Nos. 86-5249 &
86-5250, slip op. at 25-27 (3d Cir.
1987). We have constantly reaffirmed
our obligation to "apply the law in
effect when [we] resolvel] an appeal.
The court will apply a statute passed
after decision in the trial court if
that law is a valid enactment." Danbury,
Inc. v. Olive, 820 F.2d 618, 625 (3d
Cir. 1987) (citing Thorpe v. Housing
Authority, 393 U.S. 268, 281-82
(1969)). As Chief Justice Marshall
explained almost two centuries ago,
-68a-
if subsequent to the judgment
and before the decision of
the appellate court, a law
intervenes and positively
changes the rule which
governs, the law must be
Obeyed, or its obligat ion
denied. If the law be
constitutional, .. 1 know
of no court which can contest
its obligation.
United States v. Schooner Peggy, 5 U.S.
(1 Cranch) 103, 110 (1801).
The Supreme Court has clearly
held that this rule applies to statutory
changes that contract the jurisdiction
of the federal courts. See, e.g.,
Bruner _v. United States, 343 U.S. 112,
116-17 ("when a law conferring juris-
diction is repealed without any
reservation as to pending cases, all
cases fall with the lav“) It has held
with equally clarity that, when a law
expands the jurisdiction of the federal
courts, that expansion governs cases on
-69a-
direct appeal. See, e.g., Andrus v.
Charlestone Stone Products Co., 436 U.S.
604, 607-08 n.6 (1978); United States v.
Alabama, 362 U.S. 602, 604 (1960) (per
curiam). Thus, where Congress has
expanded the jurisdiction of the courts
in response to a perceived gap in a
statutory judicial schene, we are not
free to ignore that jurisdictional grant
when considering cases on direct
appeal. Dedham Water Co. v. Cumberland
Farms Dairy. Inc., 805 F.2d 1074, 1084
(lst Cir. 1986); accord Sandefur v.
Cherry, 718 F.2d 682, 684-85 (1983) ("it
would be wasteful to both the parties
and the courts to dismiss this appeal
for lack of federal jurisdiction, for it
could be at once refilea"). 11
llone circuit has seemingly held
that Congress must have intended a
jurisdictional grant to apply to cases
(FOOTNOTE CONTINUED ON NEXT PAGE)
-70a-
Because its expansion of
jurisdiction is treated like all other
changes of law on appeal, SARA's amend-
ments to CERCLA control cases pending
(FOOTNOTE CONTINUED )
pending on direct appeal. See
Carlton
„ 751 F.2d 781, 787 n. 6
v. BAWW, Inc
(5th Cir. 1985) (holding that Congress
intended amendments to bankruptcy juris-
diction to apply to pending cases). We
note that in SARA, Congress intended the
amendments to the relevant sections of
CERCLA "to clarify that if the unit of
government caused or contributed to the
release or threatened release in
question, then such unit is subject to
the provisions of CERCLA, both proce-
durally and substantively as any non-
governmental entity, including liability
under section 107 and contribution under
section 113." H.R. Conf. Rep. No. 962,
99th Cong., 2d Sess., ceprinted in 1986
U.S. Code Cong. & Admin. News 3276,
3278-79 (emphasis added). Because
Congress intended SARA to serve as a
Clarification of existing law, Congress
apparently intended that CERCLA, even
before SARA, would abrogate the states'
eleventh amendment immunity. We may
therefore apply to pending cases, as
well as those initiated after SARA,
Congress' abrogation of the eleventh
amendment.
-7la-
on direct appeal. We therefore find
that the Commonwealth of Pennsylvania is
amenable to the suit brought by Union
Gas in the instant action.
V. CONCLUSION
Congress, in enacting CERCLA
and amending it with SARA, provided for
suits in clear and explicit statutory
language evidence of its intent to allow
Superfund suits by a citizen against a
state. Moreover, Article I grants
Congress the constitutional power to so
abrogate the eleventh amendment for
Superfund suits. Insofar as SARA
represents a change in the law, it
applies to suits pending on direct
appeal. The Commonwealth of Pennsyl-
vania thus cannot interpose the eleventh
amendment to immunize it from suit by
-72a-
UNITED STATES COURT OF APPEALS
Union Gas pursuant to CERCLA. We there- FOR THE THIRD CIRCUIT
fore will reverse the judgment of the
NO. 85-1177
district court and remand the case for
further proceedings. UNITED STATES OF AMERICA.
v.
A True Copy: UNION GAS COMPANY
Teste: Vv.
Clerk of the United States Court COMMONWEALTE OF PENNSYLVANIA
of Appeals for the Third Circuit and THE BOROUGH OF STROUDSBURG
UNION GAS COMPANY,
Appellant
On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civ. No. 83-2456)
Argued January 7, 1986
Before: WEIS, HIGGINBOTHAM BECKER
Circuit Judges
(Filed JUNE 10, 1986)
DAVID H. MARION (Argued)
ROBERT A. SWIFT
Kohn, Savett, Marion & Graf
2400 One Reading Center
1101 Market Street
Philadelphia, PA 19107
-73a- -74a-
LAWRENCE A. DEMASE
BENJAMIN F. WILSON
Rose, Schmidt, Chapman, Duff &
Hasley
900 Oliver Buildi
Pittsburgh, PA 15222-5369
Attorneys for Appellant
LeROY S. ZIMMERMAN
Attorney General
MAURA A. JOHNSTON
Deputy Attorney General
ANDREW S. GORDON
Senior Deputy Attorney General
ALLEN C. WARSHAW (Argued)
Chief 5 1 Attorney General
Chief, Litigation Section
Office of Attorney General
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Attorneys for Appellee
OPINION OF THE COURT
BECKER, Circuit Judge
This appeal presents a single
question: whether the eleventh amend-
ment bars defendant-third party plaintiff
-75a-
Union Gas Company from suing the state
of Pennsylvania for monetary damages in
an action arising under the Compre-
hensive Environmental Response, Compen-
sation, and Liability Act (CERCLA or
Superfund), 42 U.S.C. § 9601 et seq.
(1982). The district court held that
the eleventh amendment was a bar to suit
and dismissed Union Gas' claim against
the state. We affirm.
I. THE FACTS
The relevant facts can be
summarized quite briefly. Predecessors
of Union Gas Company owned and operated
a carburetted water gas plant proximate
to Brodhead Creek in Stroudsburg,
Pennsylvania between 1890 and 1948,
after which the plant was dismantled.
In 1953 and 1970, Union Gas sold part of
its land near the creek to Pennsylvania
-76a-
Power and Light Company, which in turn
granted easements over the land to the
Borough of Stroudsburg. In 1955, due to
flooding, the state and the borough,
together with the Army Corps of Engi-
neers, dug levees, erected dikes,
narroved and deepened the creek, and
redirected its flow. In early 1980, the
borough assigned it easements to the
state.
On October 7, 1980, the state
was excavating at the creek when it
struck a large deposit of coal tar that
began to seep into Brodhead Creek.
Alterted to the coal tar seepage, the
Environmental Protection Agency (EPA)
asserted that the coal tar was a hazard-
ous substance and ordered the site to
1
cleaned up. The state of Pennsylvania
lprodhead Creek thus had the
dubious distinction of being the first
Superfund site in the nation.
-77a-
jointly with the federal government
undertook, inter alia, to dredge the
back channel of Broadhead Creek, install
a slurry wall to prevent further coal
tar seepage, and clean up the coal tar
that had already seeped into the water.
The federal government reimbursed the
state for all its costs, expending
approximately $720,000 in total.
II. INSTITUTION OF THIS SUIT
The United States brought suit
in the district court for the Eastern
District of Pennsylvania against Union
Gas under CERCLA §§ 104, 107 (42 U.S.C.
§§ 9604, 9607) for recoupment of costs
of $450,000 incurred in cleaning up the
spill at Brodhead Creek.* The United
2The United States also sought
damages of $270,000 under the
Federal
Water Pollution Control Act, 33 U.S.C.
(FOOTNOTE CONTINUED ON NEXT PAGE)
-78a-
States claimed that the coal tar had
been deposited into the ground near
Brodhead Creek by Union Gas and its
predecessors, as a by-product of their
carburetted water gas processing, and
that Union Gas was consequently liable
for the clean up costs. Union Gas
answered the complaint, denying any
liability, and filed a third-party
complaint pursuant to Fed. R.Civ. P. 14,
naming Pennsylvania and the Borough of
Stroudsburg as third-party defendants.
Union Gas alleged that the state and its
political subdivision had "negligently
caused, or contributed to the discharge
(FOOTNOTE CONTINUED )
§§ 1321¢b)(3) and (£)(2)(1982). Union
Gas did not file a third-party claim
with respect to these damages, however,
and so they are irrelevant to this
appeal.
-79a-
of coal tar into Broadhead Creek“ dy
their recent excavation and earlier
construction of dikes and levees, and
therefore that they should pay for the
clean up.
The state, believing that the
eleventh amendment barred Union Gas'
suit against it, responded with motions
to dismiss pursuant to Fed. R.Civ. P.
12(b)(1) and 12(b)(6).? The district
3Independent local political sub-
divisions are generally not entitled to
immunity, although they may, in some
circumstances, be considered arms of the
state and thus derive the state's elev-
enth amendment immunity. See
Bk. Thonasce General _Boseital. 665 F.2d
724, 727 (Sth Cir. 1982). Because
Stroudsburg did not raise an eleventh
amendment defense below, and did not
appear on this appeal, we reach no
decision as to whether the eleventh
amendment immunity would extend to
Stroudsburg.
-80a-
*
court granted the state's motion. United
States v. Union Gas Co., 575 F.Supp. 949
(E.D. Pa. 1983). Shortly thereafter,
the United States filed an amended com-
plaint, virtually identical to its
Original complaint but with revised
damage figures alleging that the United
States had spent $1,400,000 on the
clean-up, of which $720,000 vas collect-
ible from Union Gas under CERCLA. Union
Gas answered and filed an amended third-
party claim against the state and
borough. The state again moved to dis-
miss, and the court granted the state's
motion "for the reasons set forth in
(575 F.Supp. 949]."
Approximately five months after
the court's dismissal of Union Gas'
amended third-party claim, the court
dismissed the federal government's
action against Union Gas pursuant to
-8la-
rule 23(b) of the Local Rules of Civil
Procedure of the Eastern District of
Pennsylvania on the understanding that
the United States and Union Gas had
reached a settlement. Union Gas then
appealed, citing as error the district
court's denial of its motion to join the
state as a party.
The issue before us involves a
question of law, and therefore our review
is plenary.
III. ABROGATION OF ELEVENTH AMENDMENT
IMMUNITY
The eleventh amendment states that:
The Judicial Power of the
United States shall not be
construed to extend to any
suit in law or equity,
commenced or prosecuted
against one of the United
States by Citizens of
another State, or by Citi-
zens or Subjects of any
Foreign State.
-82a-
U.S. Const. amend. XI. Although not
apparent on its face, the eleventh
amendment has been interpreted as a
grant of sovereign immunity to the states
in federal court Pennhurst State
School & Hospital v. Halderman, 465 U.S.
89 (1984): Edelman v. Jordan, 415 U.S.
651 (1974); Hans v. Louisiana, 134 U.S.
1 (1890). But ses Green v. Mansour, —
U.S. 106 ct. 423, 431 (1985)
(Brennan, J., dissenting)("the Amendment
was intended simply to remove federal
court jurisdiction over suits against a
State where the basis for jurisdiction
was that the plaintiff was a citizen of
another State or an alien“); Atascadero
State Hospital v. Scanlon, 105 S.Ct. 3142
arne amendment does not speak
about the amenability of states to suits
in state court. When we speak in this
opinion of "states' sovereign immunity,"
we refer only to their immunity from
suit in federal court derived from the
eleventh amendment.
-83a-
3156-78 (1985) (Brennan, J., dissenting)
(detailing history of the amendment to
Support the same conclusion): Gibbons,
The Eleventh Amendment and State Sover-
eign Immunity: A _Reinterpretation, 83
Colum. L.Rev. 1889 (1983) (same):
Shapiro, Wrong Turns: The Eleventh
Amendment and the Pennhurst Case, 98
Harv. L. Rev. 61, 67-71 (1984). The
immunity can be avoided in only two
ways: (a) Comgress can abrogate it by
providing through statute for suits
against states, or (b) states can waive
their sovereign immunity and consent to
be sued. We are concerned here only
with whether CERCLA abrogated Pennsyl-
vania's immunity.
SUnion Gas also claims that
Pennsylvania waived its immunity, but
this claim is patently without merit and
(FOOTNOTE CONTINUED ON NEXT PAGE)
-84a-
(FOOTNOTE CONTINUED )
the district court did not even consider
it. Union Gas, supra,
575 Supp. at 950. Union Gas alleges
that Pennsylvania consented to suit by
(a) owning and operating a site where
hazardous wastes were stored, and (b)
participating with the federal govern-
ment in the clean-up effort. Leaving
aside the fact that Pennsylvania most
likely did not know of the coal tar in
the bed of Brodhead Creek and so cannot
be said to have consented to anything by
its purchases of property, Pennsyl-
vania's purchase and clean-up efforts
are not sufficiently emphatic to
constitute a constructive waiver of its
constitutional right. It vould be
unreasonable to nfer from Pennsyl-
vania's actions that it had waived one
of its most important and longstanding
constitutional rights. Cf. Edleman v.
Jordan, 415- U.S. 651, 673 (1974)
("Constructive consent is not a doctrine
commonly associated with the surrender
of constitutional rights, and we see no
place for it here."); Great Northern
Life Insurance Co. v. Read, 322 U.S. 4/7,
54 (1944); Murray _v. Wilson Distilling
Co., 213 U.S. 151, 171 (1909). See
Tribe, Intergovernmental
4 in idtieation, Semmtion. and
Regulation: Separation of Powers Issues
, 89
Harv. L. Rev. 682, 695 (1976)(suggesting
(FOOTNOTE CONTINUED ON NEXT PAGE)
-85a-
The Supreme Court has noted the
eleventh amendment s importance in
maintaining the balance of power between
state and federal interests. See, e.g.,
Atascadero, supra, 105 S.Ct. at 3147-48;
(FOOTNOTE CONTINUED )
that courts require a definitive action
by states before finding waiver of
sovereign immunity).
Moreover, there is a bootstrap
quality to Union Gas argument that
merely by aiding in the clean-up effort
Pennsylvania waived its immunity.
Stripped to its essence, Union Gas is
arguing that waiver is a condition
precedent to participation in the
clean-up. But because participation is
expressly allowed by statute, 42 U.S.C.
§ 9604(d)(1), the imposition of the
condition must be found in CERCLA
itself. Thus Union Gas' waiver argument
depends upon its interpretation of
CERCLA — ji.e., it is an argument of
abrogation, not waiver. As such the
argument is superfluous, for if the
abrogation argument works, then the
waiver argument is irrelevant, and if
the abrogation argument fails, then so
does the waiver argument.
-86a-
Pennhurst, supra, 465 U.S. at 99.
Because this balance is central to our
system of federalism, the Court has been
reluctant to intel abrogation of the
eleventh amendment by a federal statute
that could be otherwise interpreted. In
Pennhurst, for example, the Court
required “an unequivocal expression of
congressional intent to ‘overturn the
constitutionally guaranteed immunity of
the several States 465 U.S. at 99
(quoting Quern v. Jordan, 440 U.S. 332,
342 (1979)). In the recent Atascadero
case, the Court held that "Congress must
express its intention to abrogate the
Eleventh Amendment in unmistakable
language in the statute itself." 105 S.
Ct. at 3148 (footnote omitted). See
also Edelman v. Jordan, 415 U.S. 651
(1974).
-87a-
Even a statute whose natural
reading would allow for suits against
the state -- indeed a statute for which
any other reading may be awkward -- may
not suffice. The Court has insisted
that the statute, when read literally,
not merely allow suits against the state,
but that it do so with such specificity
that it is clear that Congress con-
sciously and directly focused on the
issue of state sovereign immunity and
chose to abrogate it.° K. Hutto v.
Finney, 437 U.S. 678, 706 (1978)(Powell,
J., concurring in part and dissenting in
part) (The Court should be ‘hesitant to
presume congressional awareness ' of
Eleventh Amendment consequences of a
6Because abrogation requires a
showing of plain intent“ rather than
merely plain meaning,” the dissent's
focus on CERCLA's plain meaning" misses
the mark.
-88a-
statute that does not make express
provision for monetary recovery against
the States.")(quoting SEC v. Sloan, 436
U.S. 103, 121 (1978)).”
Two cases in particular
illustrate the Court's insistence on
overwhelming evidence of congressional
intent. In Employees of Dept. of Pub.
Health & Welfare v. Missouri Dept. of
Pub. Health & Welfare, 411 U.S. 279
(1972), employees of a state hospital
sued for overtime pay that they claim
they were entitled to under the Fair
Labor Standards Act (FLSA). One section
of the FLSA gave employees whose
employers were covered by the FLSA a
right of action against the employers to
enforce the FLSA's terms. Another section
Justice Powell wrote for the
majority in Atascadero discussed infra.
-89a-
had recently been amended explicitly to
include state hospitals in the class of
employers regulated by the FLSA.
Although these two sections appeared to
allow for a suit against state govern-
ments in federal court, the Court found
no abrogation of the State's immunity
because there was no evidence of
congressional intent on the specific
issue of sovereign immunity. Id. at
284-85. It was also significant, the
Court noted, that there was plausible
interpretation of the amended sectior
that did not require abrogation of the
eleventh amendment, according to which
the section empowered the Secretary of
Labor to sue the state on the workers’
behalf. Id. at 285-86.
-90a-
The second illustrative case,
Atascadero, supra, involved § 504 of the
Rehabilitation Act of 1973, 29 U.S.C.
§ 794 (1982), which conferred a right of
action upon handicapped people who were
discriminated against by “any recipient
of federal assistance." A plaintiff
sought damages from a state hospital
that received federal financial assis-
tance, but the Court held that the
inclusive language of the Rehabilitation
Act notwithstanding, - the eleventh
amendment barred the suit:
The statute thus provides
remedies for violations of
§ 504 by any recipient of
federal assistance." There
is no claim here that the
State of California is not a
recipient of federal aid under
the statute. But given their
constitutional role, the
States are not like any other
class of recipients of
federal aid.
-9la-
105 §.Ct. at 3149 (emphasis added)
(footnote omitted).
One other case deserves special
mention. In Hutto v. Finney, 437 U.S.
678 (1978), the Supreme Court held that
the Civil Rights Attorney's Fees Awards
Act 42 U.S.C. § 1988 (1982), abrogated
the eleventh amendment, thus permitting
successful claimants against the state.
to receive attorneys' fees, even though
the relevant statutory language was
quite general and referred to neither
the eleventh amendment nor suits against
states. The Court relied on several
factors, most significantly § 1988's
extensive legislative history. The
Court observed that both the House and
-92a-
Senate Reports explicitly endorsed the
payment of attorneys' fees by states.
gee Hutto, 437 U.S. at 694, and that two
attempts to amend the Act to immunize
state and local governments from awards
had been defeated. Id. The Court
concluded that this evidence provided
the requisite "formal indication of
Congress(ional] intent to abrogate
States' Eleventh Amendment immunity,"
id. at 697 n.27, and that it would be
irresponsible to refuse to read § 1988
as an abrogation of immunity, id at
8the Senate Report said that "{iJt
is intended that the attorneys' fees,
like other items of costs, will be
collected either directly from the
official. . . or from the State."
S. Rep No. 94-1011, + 5 (1976)
(footnotes omitted), (1976) U.S. CODE
CONG. & AD. NEWS 5908, 5913 (quoted in
Hutto, 437 U.S. at 694). e House
Report was even more direct: "Of
course, the llth Amendment is not a bar
to the awarding of counsel fees against
state governments." H.R.Rep. No. 94-
1558, p. 7 n. 14 (1976)(quoted in Hutto.
437 U.S. at 694).
-93a-
694. The Court was further influenced
by the fact that because § 1988
“primarily applies to laws passed
specifically to restrain state action,”
allowing the eleventh amendment to bar
§ 1988 suits would rob § 1988 of much of
its force. Id. at 693-94. Finally, the
Court noted the special nature of
attorney's fees as costs of litigation,
and thus within the traditional power
and discretion of the judiciary. Id. at
696, 697 n. 27.
There is some question whether
Hutto stands in the wake of Atascadero's
explicit holding that “unmistakable
language in the statute itself“ is the
sine gua mon of abrogation. The
Atascadero Court did not Overturn Hutto,
however, and so we believe that it
retains its precedential value. Hutto
demonstrates that although a court may
interpret a statute to abrogate states'
-94a-
eleventh amendment immunity even in the
absence of explicit statutory language
to that effect, the evidence in favor of
such an interpretation must be virtually
overwhelming. This insistance on over-
whelming evidence is only intensified by
9
Atascadero.
9In Parden X. Terminal Ry. Co, 377
U.S. 184 (1964), the Supreme Court held
that a state that ran a railroad for
profit was liable to its employees under
the Federal Employers' Liability Act
although that act had no mention of the
eleventh amendment and its legislative
history was sparse. Parden would thus
seem to imply a lesser standard of proof
for abrogation than that required by
Hutto, and Union Gas relies upon it.
The reliance is misplaced, for Parden
has been limited to instances in which
the state is engaged in a for-profit
enterprise. See Employees, supra, 411
U.S. at. 285. Union Gas has not suggested
that Pennsylvania was engaged in such an
enterprise here, and therefore Parden
would appear to be inapposite.
Moreover, as Professor Tribe noted
in 1976, the philosophy underlying
Parden shifted significantly in the
years following it, making abrogation
more difficult:
(FOOTNOTE CONTINUED ON NEXT PAGE)
-95a-
(FOOTNOTE CONTINUED)
In the decade between Parden
and Edelman [v. Jordan,415 U.S. 651
(1974)], the Supreme Court's stance
on the eleventh amendment has sig-
nificantly shifted. Parden would
make states amendable to suit in
federal court whenever they under-
take an activity for which a private
person could potentially be held
liable under a valid federal law.
The Parden majority thus posited no
distinction between the states and
other entities that might be
regulated by federal legislation.
and Edelman, on the other
hand, understand states to be
distinguished from other entities by
federalism considerations. For this
reason, the amenability of states to
suit must be specifically addressed
by federal legislation, and Congress
must make its intention to treat
states like private parties
unmistakably clear. This policy of
clear statement had been rejected by
the Parden majority, but .
eventually prevailed.
Tribe, gupra, at 690-91 (footnotes
omitted). See also
„ 780 F.2d
of Highways & Pub. Trans.
1268, 1270-73 (5th Cir. 1986)(en
banc)(discussing developments in the
jurisprudence since Parden). The years
since Professor Tribe wrote have only
confirmed and deepened the change in
attitude that he identified.
-96a-
This brief review provides the
background for our consideration of
whether CERCLA may be interpreted to
abrogate the eleventh amendment.
IV. CERCLA AND THE ELEVENTH AMENDMENT
CERCLA, Pub. L. No. 96-510, 94
Stat. 2767 (codified in 42 U.S.C.
§§ 9601-15, 9631-36, 9641, 9651-53,
9654-56, 6911-11A, 6957, and various
sections of titles 26, 33 and 49), was a
bold effort to meet the threat to the
public heaith and environment posed by
inactive hazardous waste sites. See
H.R. Rep.No. 1016, PT. I, 96th Cong., 2d
Sess, (1980), reprinted in [1980] U.S.
Code Cong. & Ad. News 6119: S. Rep
No. 838, 96th Cong., 2d Sess. (1980). 10
We shall not canvass the full scope of
10The legislative history of
CERCLA is exceedingly complicated
because of the manner in which the bill
(FOOTNOTE CONTINUED ON NEXT PAGE)
-97a-
that effort: we will instead review
those provisions of CERCLA that are
directly relevant to Union Gas' claim
that CERCLA manifests Congress' intent
to abrogate states' eleventh amendment
immunity.
A. 42 U.S.C. § 9607 and the Definition
CERCLA empowers the President, in
coordination with the state or states in
which there is a hazardous waste site
emergency, to clean up the dangerous
waste or take other steps necessary to
(FOOTNOTE CONTINUED)
was passed. Three bills in the Ninety-
Sixth Congress contributed in some way
to the legislation as finally enacted.
H.R. 7020, 96th Cong., 2d Sess. (1980),
H.R. 85 96th Cong. lst Sess. (1979),
and §. 1480, 96th Cong, Ist Sess.
(1979). The legislative history is
es and analyzed in Grad, A
Environmental Response, Compensation and
Liability ("Superfund") Act of 1980
Colum. J. Env. L. 1 (1982).
-98a-
prevent the danger from escalating. 42
U.S.C. § 9604. The liability section of
CERCLA, 42 U.S.C. § 9607 (a), allows
those whose have incurred clean up costs
to sue any person“ who owned or
operated the waste site for all costs
incurred in the removal effort. The
definitional section of the statute, 42
U.S.C. § 9601, defines person as an
individual, firm, corporation, associa-
tion, partnership, consortium, joint
venture, commercial entity, United
States Government, State, municipality,
commission, political subdivision of a
State, or any interstate body." 42
U.S.C. § 9601[21][emphasis added).
Union Gas argues that 42 U.S.C.
§§ 9607(a) and 9601 jointly meet the
clear statement requirement enunciated
by the Supreme Court. The argument is
straightforward: (1) § 9607(a) says that
-99a-
any person who owns or operates a
hazardous waste site is liable for
Clean-up costs; (2) the state owns the
land on Brodhsad Creek where the
hazardous waste is deposited: (3) § 9601
says that a state is a person for pur-
poses of CERCLA; therefore, (4) the
state is jointly liable for the costs of
clean-up.
Although this argument is not
without force, we cannot accept it. The
statutory arrangement in this case is
almost identical to that in Employees of
Dept. of Pub. Health & Welfare x
Missouri Dept. of Pub. Health & Welfare,
411 U.S. 279 (1972). Here, as there, the
suggestion that states might be sued is
found in a provision separate from the
one that creates the plaintiff's cause
of action. The Employees Court found
-100a-
that arrangement insufficient to satisfy
the burden of abrogation. Because there
is no suggestion in CERCLA's legislative
history that the authors of these provi-
sions intended them to make states liable
for damages , cf. Hutto v. Finney, 437
U.S. 678 (1978), we are bound dy
Employees to find that the inclusion of
"states" within the class of potential
defendants is insufficient to abrogate
Pennsylvania's immunity. II
llfhe dissent suggests that the
"key distinction" between and
this case is that the inclusive language
in the FLSA at issue in was an
amendment to the statute ile there was
no such evolution“ in CERCLA. Dissent
Typescript at 6-7. A fair reading of
demonstrates, however, that it
was not the fact that the statute had
been amended that led the Court to its
conclusion, but rather the absence of
any clear indication of congressional
intent to abrogate states eleventh
amendment immunity. See Employees, 411
U.S. at 283-85. There is no greater
evidence of congressional intent in this
case.
-10la-
We would reach the same con-
clusion without the guidance of
Employees, for there is evidence in
CERCLA itself that § 9607(a) was not
intended to abrogate states' sovereign
immunity. The United States is included
in the definition of person in § 9601
(21): therefore, if § 9607(a) were
indeed an abrogation of states
sovereign immunity then that section
would waive the United States' immunity
as well. However, a separate CERCLA
provision, § 9607(g) explicitly waives
federal sovereign immunity. 12 This
implies that § 9607(a) does not waive
1242 U.S.C. § 9607(g) states:
Each department, agency or
instrumentality of the executive,
legislative, and judicial branches
of the Federal Government shall be
subject to, and comply with, this
chapter in the same manner and to
the same extent, both procedurally
and substantively, as any nongovern-
mental entity, including liability
under this section.
-102a-
federal immunity, for otherwise § 9607(g)
would be superflouous. See 2A Sutherland
Stat. Const. § 46.06 (4th ed. 1984 rev.)
("A statute should be construed so that
effect is given to all its provisions,
so that no part will be inoperative or
superfluous ... )) Since § 9607(a)
treats states and the federal government
identically -- and since abrogation of
states eleventh amendment immunity
requires no less a showing of congres-
sional intent than does waiver of
federal sovereign immunity!? — it
follows that § 9706(a) does not abrogate
states eleventh amendment immunity,
either.
l3arguably, abrogation of states’
eleventh amendment immunity would
require a greater showing of
congressional intent than does waiver of
(FOOTNOTE CONTINUED ON NEXT PAGE)
-103a-
Even if not read as an abro-
gation of state sovereign immunity,
§ 9607(a) still performs a meaningful
function, cf. Hutto, 437 U.S. at 693-94,
because it establishes a right of action
by the United States against any states
that own or operate hazardous waste
sites. Suits by the United States
against states are not foreclosed by the
(FOOTNOTE CONTINUED)
federal sovereign immunity. The differ-
ence in the burdens of proof would arise
from the fact that federal sovereign
immunity, unlike states' eleventh
amendment -* arises from the
common law not the Constitution. See
„ 19 U.S. (6 Wheat.)
Cohens v. Virginia
264 (1821); Jaffe, Suits Against
Governments and Officers: Sovereign
Immunity, 77 Harv. L. Rev. 1 (1963)
(tracing origins of doctrine in old
English cases). We might therefore
require greater specificity for the
abrogation of state sovereign immunity
than for the waiver of federal
immunity. However, as that particular
question is not before us here, the
observations in this footnote are not
part of our holding.
104
eleventh amendment. United States v.
Mississippi, 380 U.S. 128, 140-41
(1965), but without § 9607(a) the United
States would not be able to sue the
states under CERCLA's generous
14 Since the United States does
terms.
not most of the initial clean-up and
then sues for reimbursement, our reading
leaves § 9607(a) with substantial
importance.
B. Section 9607(e)(2) and Subrogation
Rights
Section 9607(e)(2) states that
"(njothing in this subchapter. . . shall
bar a cause of action that any.
person subject to liability under this
l4most significantly, CERCLA
allows for full err cI of clean-up
costs and strict liability. 42 U.S.C.
§§ 9607(a), (c If the United States
could not sue states under CERCLA, it
might be left sue each state under its
own tort law.
-105a-
section das or would have, by
reason of subrogation." Union Gas
argues that this section allows it to
subrogate to the rights of the United
States against Pennsylvania once the
United States settled its case against
Union Gas. Since the United States
could sue Pennsylvania, gee gupra Part
IV.A, Union Gas argues, so should Union
Gas be able to do so, through the device
of subrogation.
Sect‘on 9607(e)(2) simply
cannot bear the burden it must to
abrogate the states' eleventh amendment
sovereign immunity. That section does
not even mention the eleventh amendment
Or suits against states. There is no
evidence in the legislative history of
§ 9607(e)(2) that Congress intended
private parties to inherit all of the
rights of the United States including
the right to override the states' right
-106a-
not to be sued by private citizens in
federal court, and we cannot ascribe
such an intention to congress Once
again, if our refusal to read
§ 9607(e)(2) as an abrogation provision
rendered that section meaningless or
contradictory, we would have to
reconsider our position. But our
holding that § 9607(e)(2) does not allow
private parties to sue states leaves it
open for private parties to sue other
private parties or the United States in
the appropri.te circumstances. Thus,
under our reading, § 9607(e)(2) retains
a significant role.
l5ynion Gas cites only one case to
support the proposition that a party
that subrogates to the right of the
United States inherits the right to sue
states. Prairie State National Bank vy.
United States, 164 U.S. 227 (1896).
That case did not contain any constitu-
tional issues, .et alone the particular
issue of eleventh amendment soverei
immunity. No state was even a party in
that case.
-107a-
C. CERCLA's Broad Polic”
CERCLA was intended "to
initiate and establish a comprehensive
response and financing smechanism to
abate and control the vast problems
associated with. hazacdous waste
disposal sites." H.R. Rep. No. 1016,
96th Cong.. 2d Sess. 22, reprinted in
[1980] U.S. CODE CONG. & AD. NEWS 6119,
6125. Fastening on the word “compre-
hensive” in this passage and on similar
expressions elsewhere of Congress'
resolve to deal with hazardous waste
sites with one fell swoop. see e@.g.. 8.
Rep. No. 848, 96th Cong. list Sess. 12
(1980)(bill “is designed to help address
many of the problems faced by society as
a result of chemical contamination.").
Union Gas argues that Congress wust have
intended to abrogate states immunity or
-108a-
else CERCLA would be less than "compre-
hensive" and all-encompassing. The
inevitable conclusion, the argument
runs, is that CERCLA must be an
abrogation of states' eleventh amendment
immunity.
While the previous two
arguments relied on the language of
CERCLA itself, this one relies
exclusively on CERCLA's legislative
history. It therefore faces a
particularly heavy burden that it is
unable to bear. Not only is there
nowhere near the overwhelming evidence
relied upon by the Supreme Court in
Hutto v. Finney, 437 U.S. at 694, but
there is simply no indication anywhere
in CERCLA's legislative history that
Congress considered abrogating the
eleventh amendment or even contemplated
-109a-
CERCLA suits against states. 16 The
declaration that a bill will deal
"comprehensively" with a problem is
commonplace and may be little more than
political hyperbole; at all events, it
does not rise to the level necessary to
deprive states of their constitutional
—
léThe issue of states immunity
was never squarely addressed by either
house of Congress in the CERCLA
debates. The eleventh amendment was
mentioned not once in any document or
discussion pertaining to CERCLA. It can
be argued that the Senate debates
suggest that to the extent there was any
consideration of the matter of sovereign
immunity, it was thought that states
would retain their immunity. Senator
Randolph, for example, stated that the
purpose of CERCLA liability provisions
was to “provide that the funds de
financed largely by those industries and
consumers who profit from products and
services associated with the hazardous
substances which impose risks on
society." 126 Cong. Rec. 30932 (Nov.
24, 1980). This statement would appear
not to include states. However, this
argument is not necessary to our
conclusion, and we note it only in the
interests of completeness.
-110a-
rights. The legislative history falls
far short of providing a "formal indi-
cation of Congress‘ intent to abrogate
the states Eleventh Amendment immunity,"
id. at 697 n.27, and Union Gas' argument
from legislative history thus fails.
D. A Comparison Of CERCLA with cther
Environmental Statutes
CERCLA was not the first
congressional effort to deal with
environmental problems by creating
causes of actions against polluters.
The Clean Air Act, the Resource
Conservation and Recovery Act (RCRA),
and the Federal Water Pollution Control
Act all authorize citizens suits
against polluters. In each case, the
legislation specifically provides that
any citizen may sue violators of the
relevant statute to enforce the terms of
-llla-
the act and that if the violators are
states they may be sued "to the extent
permitted by the Eleventh Amendment to
the Constitution." See 42 U.S.C. § 7604
(1982)(Clean Air Act); 42 U.S.C. § 6972
(1982)(RCRA); 33 U.S.C. § 1365 (1982)
(Federal Water Pollution Control Act).
Because CERCLA does not have an
analogous provision for citizens'
suits, 7 § 6907, which limits standing
to those who have incurred response or
remedial expenses in cleaning up
releases of hazardous substances, is the
closest analogy in CERCLA to the
citizens' suit provisions of the other
statutes. Union Gas points out that
unlike those provisions in the other
l/there are bills currently in
Congress that would amend CERCLA to
allow for citizens suits. The bills are
discussed infra at pp. 21-22.
-112a-
statutes, CERCLA does not have an
explicit eleventh amendment limitation
and concludes that the absence of such a
limitation in CERCLA is sufficient
evidence that Congress intended CERCLA
to abrogate the eleventh amendment.
Our answer, by now familiar,
but no less applicable or correct, is
that this evidence is simply insuf-
ficient to overturn the states'
constitutional right to immunity. In
the first place, the citizen suit
provisions in the other three statutes
are fundamentally different from § 9607,
for whereas those provisions permit only
injunctive relief to enforce the terms
of each statute, § 9607 permits
recoupment of clean-up expenses, an
action for damages. Thus, the analogy
is inexact. More fundamentally, even if
-ll3a-
the citizen suit provisions allowed for
damage remedies as does § 9607, we do
not believe that the comparison between
the statutes would constitute a showing
of congressional intent sufficient to
abrogate eleventh amendment immunity.
None of the Supreme Court cases cited
above, nor any other case of which we
are aware in any court, has read a
statute to abrogate eleventh amendment
immunity on the basis of what the
statute did pot say. Congressional
Silence, except in the rarest of cases,
is not unequivocal evidence of
congressional intent. To interpret
congressional silence as express
abrogation, therefore, would be
improper. See Employees. supra, 411
U.S. at 285 ("It is not easy to infer
that Congress. desired silently to
deprive the States of an immunity they
have long enjoyed. .. ).
-ll4éa-
Our position is unchanged by
recently proposed amendments to CERCLA
that would provide for citizen suits.
Both the House and the Senate have
passed bills amending CERCLA in various
respects. See H.R. 2817, 99th Cong.,
lst Sess. (1985)(House Bill); H.R. 2005
(Senate Bill). The bills are scheduled
for joint conference, and are not yet
law. Among the amendments are ones
analogous to the citizen suit provisions
in the Clean Air Act, Federal Water
Pollution Act, and RCRA, that allow
citizens to bring suits against any
violators of CERCLA, or against the
President, to enforce compliance with
CERCLA. Like those other provisions,
the proposed CERCLA citizen suit
provision would permit suits against
states "to the extent permitted by the
Eleventh Amendment." See H.R. 2817 § 150;
-115a-
H.R. 2005 § 310. Union Gas argues that
the facts that the proposed amendments
would include the eleventh amendment
limitation and that § 9607 does not
include it imply that § 9607 was
intended to abrogate the eleventh
amendment . *®
Subsequent legislation de-
c lar ing the intent of an earlier statute
is entitled to great weight in judicial
statutory interpretation. Red Lion
Broadcasting Co. v. F.C.C., 395 U.S.
367, 380-381 (1969). There is no
evidence, however, to support Union Gas
contention that the proposed amendments
l8ynion Gas explains: "({I]f (the
roposed amendments) were to become law,
t would suggest that Congress had
abrogated and intended to continue the
abrogation of states' Eleventh Amendment
immunity as to [42 U.S.C. § 9607] suits
brought by parties that have paid
— costs but not as to the new
categories of citizen suits.”
116
are a response to the terms or perceived
meaning of § 9607. Union Gas points to
no legislative history of the proposed
amendments that suggests that the Con-
gress considering the amendments thought
that § 9607 abrogated the eleventh
amendment and made a conscious decision
to distinguish the amendments by
limiting the scope of the citizens’
suits. Our independent review of the
legislative history has also turned up
no evidence that the proposed amendments
reflect the current Congress judgment
about the scope and meaning of § 9607.
Without any such evidence, the amend-
ments cannot withstand the burden ‘of
proof that abrogation demands. 1
‘
l9there is a perfectly reasonable
explanation for the eleventh amendment
limitations in the proposed citizen suit
rovisions according to which those
imitations are not a response to the
(FOOTNOTE CONTINUED ON NEXT PAGE)
-ll7a-
Vv. CONCLUSION
We hold that CERCLA does not
evidence congressional intent to
abrogate states eleventh amendment
immunity. The judgment of the district
court will be affirmed.
(FOOTNOTE CONTINUED )
scope of § 9607: it may be simply that
the proposed CERCLA citizen suit pro-
visions were modeled after the analogous
provisions in the other environmental
statutes, without regard to § 9607.
On account of the lack of evidence
that the proposed amendments are 4
response to the current Congress
understanding of § 9607, we do not have
to decide how much weight we would ive
the amendments if they were in fact
motivated by a current legislative
interpretation of § 9607. Because the
proposed amendments are not yet, and may
never be, law, the amendments deserve
less weight than they would otherwise.
cf. ,
442 U.S. 397, 411 n.il (1979)(statements
of legislators or congressional commit-
tees after the enactment of a law are
not entitled to the same 1
weight as subsequent legislation).
~118a-
A. LEON HIGGINBOTHAM, JR., Circuit
Judge, dissenting.
When a statute in its defini-
tional section declares unequivocally
that the term person“ includes 4a
"State, municipality, commission,
political subdivision of a State, or any
interstate body“ 42 U.S.C. § 9601(21)
(emphasis added), the explicit language
of Congress should not de disgarded
where there is no legislative history
suggesting that Congress did not mean
what they said when they used the word
“estate.” Instead of giving Congress the
presumption that they know what a state
is, the majority seems to assume that
judges have a better mastery and
understanding of the English language
than does Congress, and thus they roam
through inconclusive legislative his-
tory to “demonstrate” that Congress did
not mean state when they included that
~119a-
specific phrase in the key definitional
section of the statute. In the future,
to comply with the rationale of the
majority, in definitional sections of
similar statutes where remedies are
provided for damages citizens or
corporations have suffered, Congress
must use language similar to the
following: "The term person includes a
state, and we really mean the state, and
furthermore the eleventh amendment's
prohibition on suits against the states
does not apply.” In matters of
statutory construction of legislation
that is as explicit as the statute in
issue, no other court has imposed as
broad a reading of eleventh amendment
prohibitions. I respectfully dissent.
I.
The liability section of
Comprehensive Environmental Res pone e
Compensation and Liability Act (CERCLA),
-120a-
42 9. S. C. § 9607, provides that
„„ . apy person who at the time of
disposal of any hazardous substance
owned or operated any facility at which
such hazardous substances were disposed
of, . . shall be liable for... any
other necessary costs of response
incurred by any other person consistent
with the national contingency
plan... ." 42 U.S.C. § 9607(a)(2)(B)
(emphasis added). The definitional
section of the statute, 42 U.S.C. § 9601,
defines person as “an individual, firm,
corporation, association, partnership,
consortium, joint venture, commercial
entity, United States Government, State,
gunicipaltiy, commission, political
subdivision of a State, or any inter-
state body.” 42 U.S.C. § 9601(21)
(emphasis added). Inasmuch as the plain
language of 42 U.S.C. §§ 9607(a)(2)(B)
-l2la-
and 9601(21), when read jointly, declares
that a state is a person for liability
purposes pursuant to CERCLA, it follows
then that states are within the class
of potential defendants liable for the
costs of the clean-up. The statutory
language points unambiguously to 4&8
conclusion contrary to that reached by
the majority. To reach the conclusion
that the word state means state one need
not resort to inferences or a fortiori
reasoning. One need not fill in what
Justice Cardozo calls the “interstitial
gaps" of legislation. Nor are we
confronted with the problem that Gray 80
eloquently described in his Nature and
Sources of the Law:
The fact is that the diffi-
culties of so-called inter-
—— arise when the
egislature has had no sean-
i at all: when the question
which is raised on the statute
-l22a-
never occurred to it: when
what the judges have to do
is, not to determine what the
legislature did mean on 4
Pe nt which was present to
ts mind, but to guess what
it would have intended on 4
point not present to its
mind, if the point had been
present.
3.8. Gray, Nature and Sources of the
Law, § 370 at 165, quoted in.
Cardozo, The Nature of the Judicial
Process 15 (1975).
II.
The basic issue is whether the
definitional section is sufficiently
adequate in itself to find legislative
intent to abrogate sovereign immunity.
I think it is. When interpreting 4
statute, the starting point is of course
the language of the statue itself.
GTE Sylvania, 447 U.S. 102, 108 (1980).
-123a-
If the language is clear and unambigu-
ous, and there is no “clearly expressed
legislative intention to the contrary,
that language must ordinarily be
regarded as conclusive." Id.; see also
Dickerson v. New Banner Institute, Ing
460 U.S. 103, 110 (1983)(same).
In the instant case, there is
no legislative history indicating that
Congress considered or debated the issue
of states' eleventh amendment immunity.
From my view, the absence of a debate on
this issue merely indicates that
Congress was smart enough to know what a
state is and therefore, when including
states as persons who could be liable
under CERCLA, Congress realized the
eleventh amendment implications.
Because there is no legislative
evidence as to whether Congress intended
states to be inclusive or exclusive of
CERCLA's liability provision, 42 U.S.C.
124
§ 9607, the language of the definitional
section, 42 U.S.C. § 9602(21), is
controlling and should be regarded as
authoritative evidence of congressional
intent to abrogate states sovereign
immunity. It would seem, therefore,
from the clear words of the statute
("person means. .. state, . . "), that
the majority should have reached 4a
different result. Instead, the majority
held that we are bound by (Employees v.
Missouri Dept. of Pub. Health & Welfare,
411 U.S. 279 (1973)]) to find that the
inclusion of states within the class
of potential defendants is insufficient
to abrogate Pennsylvania's immunity."
Irne majority also holds that
"(we would reach the same conclusion
without the guidance of Employees, for
there ig evidence in CERCLA itself that
§ 9607(a) was not intended to abrogate
states sovereign immunity." Ma j
Typescript at 15. The majority relies
(FOOTNOTE CONTINUED ON NEXT PAGE)
-125a-
(FOOTNOTE CONTINUED)
on a separate CERCLA provision,
§ 9607(g), that explicitly waives
federal sovereign immunity. The majority
suggests that because § 9607(g) waives
federal sovereign immunity, § 9607(a)
does not waive federal sovereign
immunity; hence, since § 9607(a) treates
states and the federal government
identically, § 9607(a) does not abrogate
states eleventh amendment immunity
either, Id. at 15-16.
The majority cites no legislative
history to support the weight they give
to § 9607(g). At most, Congress was
merely being redundant by their
inclusion of a waiver of federal
sovereign immunity. The redundancy is
on the equivalent of demonstrating a
congressional intent not to abrogate
states' eleventh amendment immunity.
The majority's conclusion is contrary to
the familiar canon of statutory
construction. Because there is no
legislative history as to Congress’
considering the specific problem of
sovereign immunity, the court must rely
on the plain language of CERCLA. The
— — 1 of CERCLA contains a clear
indication that Congress intended to
allow private citizens to bri suits
against states. In view of suc clear
statutory language, it does not follow
that because Congress rovided a
specific provision abrogating federal
government's immunity, Congress’ failure
to do the same where states are
concerned evidenced a conclusive
congressional intent not to lift states’
sovereign immunity.
-126a-
Maj. Typescript at 14. 1 submit that
since Employees, supra, is patently
distinguishable from the case at bar, we
are not bound“ to decide this case in
favor of states' immunity.
In Employees, the employees of
state health facilities brought suit
against the state in federal jourt,
seeking overtime compensation due them
under the Fair Labor Standards Act
("FLSA") of 1938. The question was
whether the employees could sue their
state employer in federal court under
FLSA. The liability section of FLSA
provided in relevant part:
Any employer who violates
the provisions of section 6
or section 7 of this Act shall
be liable to the employee or
employees affected in the
amount of their unpaid minimum
wages, or their unpaid over-
time compensation, as the case
-127a-
may be, and in an additional
equal amount as liquidated
damages. Action to recover
such liability may be main-
tained in any court of
competent jurisdiction...
Section 16(b) of FLSA, § 52 Stat. 1069,
29 U.S.C. § 216(b)(1938). The defini-
tional section of FLSA read in relevant
part:
* includes any person
acting directly or indirectly
in the interest of an employer
in relation to an employee
shall not include the Unitec
States or any State or poli-
tical subdivision of a State
or any labor organizat ion
(other than when acting as an
employer), or e acting
in the capacity of officer or
agent of such labor organi-
zation.
Section 3(d) of FLSA, 52 Stat.
1060, 29 U.S.C. § 203(d)(1938)(emphasis
added). In 1966, § 3(d) was amended dy
-128a-
expanding the definition of employer to
include a state or a political sub-
division with respect to employees (1)
in a hospital, institution, or school
referred to in the last sentence of
subsection (t) of this section
Pub. L. 89-601, §102(b), 80 Stat. 831
(1966). In view of the 1966 amendment,
FLSA seemingly subjected states to suit
along with other employers. However,
since the language in §16(b) had not
been changed in 1966, the court in
Employees concluded that it should not
infer that Congress had removed states
immunity from suit without amending
§ 16(b). The court in Employees said
"filt would also be surprising in the
present case to infer that Congress
deprived Missouri of her constitutional
immunity without changing the old
section 16(b) under which she could not
-129a-
be sued or indicating in some way by
clear language that the constitutional
immunity was swept away." Employees,
411 U.S. at 285.
The key distinction between
FLSA and CERCLA is that within the
evolution of FLSA amendments there were
two statutory provisions that caused an
ambiguity as to the intent of Congress.
In Employees, prior to 1966, there was
clear statutory language indicating 4
congressional intent not to abrogate
states eleventh amendment immunity.
But, the subsequent 1966 amendment made
the earlier statutory language unclear:
as to its applicability - the amended
section 29 U.S.C. 5 203(d)(1966) made
states subject to suit under FLSA while
the liability section, 29 U.S.C.
§ 216(b), remained the same. Read
together, these sections could be ration-
ally construed to either deny or allow
states to be subjected to suit by state
employees. Thus, the evolutionary
language within FLSA spawned ambiguity.
In contrast, in this case, we
are not confronted with a statute which
at one time declared that a person
"ghall not include the United States or
any State or political subdivision of a
State." But to the contrary, here, we
have the original statute, never amended
for purposes relevant to this case, that
has always declared that the state was 4
person for liability purposes. In view
of the familiar canon of statutory con-
struction, the language of FLSA, unlike
the language of CERCLA, was not authori-
tative evidence of clear legislative
intent. Cf. Dickerson, 460 U.S. at 110
(the general rule of statutory construc-
tion is to look first to the language of
the statute and then to the legislative
history if the statute is unclear).
The majority also relies on
Atascadero State Hospital v. Scanion,
105 S. Ct. 3142 (1985) in holding that
CERCLA does not abrogate the eleventh
amendment bar to suits against the
states, Atascadero, supra, involved
§ 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794 (1982), which conferred
a right of action upon handicapped
people who were discriminated against by
"any recipient of federal assistance
In Atascadero, a plaintiff sought damages
from a state hospital that received
federal financial assistance. The
Atascadero court, noting that Congress
must express its intention to abrogate
the eleventh amendment in unmistakable
language in the statute itself, held
that the "general authorization for suit
in federal court is not the kind of
- unequivocal statutory language suf
ficient to abrogate the eleventh
amendment. Atascadero, 105 S. Ct. at
3147-49.
The case at bar is
distinguishable from Atascadero, supra.
The statute in Atascadero provides
remedies for violations of § 504 by an
recipient of federal assistance" (empha-
sis added). However, there was no
specific statutory language identifying
the class of recipients of federal aid,
as in CERCLA, as "State, municipality,
commission, political subdivision of a
State, or any interstate body." Thus,
the statute in Atascadero placed
liability on a general class of
potential defendants.
In the instant case, CERCLA
provides that any person who owns or
operates any facility at which hazardous
waste is deposited is liable for the
costs of the clean-up (emphasis added).
In addition to the foregoing general
liability provision, CERCLA’ further
provides a specific provision identify-
ing the class of potential defendants,
i.e., person means state. See 42 U.S.C.
§ 9601(21). Unlike the statute in
Atascadero, the statute in the case at
bar does more than place liability on a
general class of potential defendants.
CERCLA allows states to be subjected to
suit by private persons, in "unmistak-
able language in the statute itself."
In the case at bar, I find no
ambiguity in the language of CERCLA and
no contrary legislative intent. The
majority, therefore, had no occasion to
1243
"look beyond the plain language of the
federal statute. , f 5 Thorn v.
Reliance Van Co. Inc.. 736 F.2d 929,
932 (3d Cir. 1984), quoting, Aloha
of Hawaii, 464 U.S. 7, 12 (1983).
Accordingly, the definitional section of
CERCLA, 42 U.S.C. § 9601(21), is con-
trolling. CERCLA was passed with clear
congressional intent, evidenced by its
unambiguous statutory language, to
abrogate states' eleventh amendment
immunity.
111.
As judges, ve nust never forget
the complexity and the time constraints
of the federal legislative process.
Legislators do not have the time or the
capacity to anticipate every possible
argument that might be made subsequently
by creative and clever counsel. They
need not thwart every potential argument
1282
in the womb of time by writing volumes
of legislative history which say no more
than that the legislature meant what
they said in the statute. As Justice
Cardozo once observed "(wje do not pick
our rules of law full-blossomed from the
trees 3. Cardozo, supra at 103. In
this case, there was a bloom of suffi-
cient specificity for the problems with
which Congress was dealing. It is
particularly ironic that private parties
will now be denied the right to collect
2
millions of dollars in damages for
which they should be reimbursed because
2The amended complaint with
revised damage estimates alleges that
the United States has spent 8 „400, 000
on the clean up, of which $720,000 was
collective from Union Gas under CERCLA.
It is the theory of Union Gas that much
of the damage was caused by the state.
Union Gas alleges that the state:
(FOOTNOTE CONTINUED ON NEXT PAGE)
-136a-
the state was the party that improperly
"disposed" of hazardous substances to
the land and waterways of our Nation.
Such a result is absurd and patently
unfair when it is based on the assump-
tion that Congress did not really mean
(FOOTNOTE CONTINUED )
, caused the alleged
release and discharge of coal
tar and oil into Brodhead
Creek by their acts, omissions
and/or negligence including,
‘nt Lia:
(a) The narrowing of
the channel of Brodhead Creek
on its western side and re-
striction of the channel with
dikes thereby causing signif-
icant downcutting:
(b) Exacavat ing along
the toe of the dike and back-
water areas;
(c) Failing to take
corrective measures to
prevent the downcutting.
Appendix {12 at 106a-107a.
-137a-
"states" although it unambiguously
included states as persons liable for
the harm they cause in disposing of
hazardous substances.
To return to Justice Cardozo,
he so wisely observed that:
[ijn countless litigations,
the law is so clear that
judges have no discretion.
They have the right to legis-
late within gaps, but often
there are no gaps. We shall
have a false view of the
landscape if we look at the
waste spaces only, and refuse
to see the acres already sown
and fruitful.
Id. at 129. In this case, from my view
the majority has failed to look at the
landscape and appreciate the clear
statutory language of Congress. I would
reverse and remand this case to the
district court for further proceedings.
A TRUE COPY:
Teste:
Clerk of the United States
Court of Appeals for the
Third Circuit
-138a-
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
: CIVIL ACTION
v. : NO. 83-2456
UNION GAS COMPANY
MEMORANDUM
BECHTLE, J. NOVEMBER 15, 1983
The United States of America
has brought suit against the Union Gas
Company ("Union Gas“) under sections 104
and 107 of the Comprehensive Environ-
mental Response Compensation and Liabil-
ity Act ("CERCLA" or 'the Act"), 42
U.S.C. 5 9604 and 9607, and section
311(b)(3) and 311(f)(2) of the Clean
Water Act, 33 U.S.C. 513210b) (3) and
1321(£)(2), for reimbursement of costs
of removal and remedial action incurred
in the clean-up of hazardous substances,
-139a-
released from a facility allegedly owned
and operated by Union Gas, into Brodhead
Creek in Stroudsburg, Pennsylvania.
Union Gas has filed a third part com-
plaint under CERCLA against the Common-
wealth of Pennsylvania and the Borough
of Stroudsburg, alleging that the third
party defendants are owners and operators
of the facility in question and are
therefore responsible for the release of
any hazardous substances into Brodhead
Creek. Presently before the court is
the Commonwealth of Pennsylvania's motion
to dismiss the third party complaint on
the ground that jurisdiction over it is
barred by the Eleventh Amendment to the
United States Constitution. As set out
below, the court agrees that the Eleventh
Amendment bars this suit insofar as the
-140a-
Commonwealth is concerned. Therefore,
its motion to dismiss shall be granted.
The Eleventh Amendment to the
federal Constitution embodies the
doctrine of state sovereign immunity.
It provides as follows:
The Judicial power of the
United States shall not be
construed to extend to any
suit in law or equity, com-
menced or prosecuted against
one of the United States by
Citizens of another State, or
by Citizens or Subjects of
any Foreign State.
U.S. CONST. amend. XI.
Accordingly, suits against a state by
citizens from either another state or a
foreign state are barred. Additionally,
although the amendment does not expressly
address suits against a state by its own
citizens, the Supreme Court has recog-
nized that such suits are also barred.
Edelman v. Jordan, 415 U.S. 651, 653
(1974)(citations omitted).
~14la-
Exceptions to the states
Eleventh Amendment sovereign immunity
exist in situations where either the
state has consented to the filing of such
a suit, Edelman v. Jordan, 415 U.S. 651
(1974); Ford Motor Co. v. Department of
Treasury. 323 U.S. 459 (1945), oF
Congress has abrogated the states
sovereign immunity by explicit statutory
mandate. Parden v. Terminal RC 377
U.S. 184 (1964); Employees v. Missouri
Public Health Dent 411 U.S. 279 (1973).
See Quern v. Jordan, 440 U.S. 332 (1974);
Hutto -v. Finney, 437 U.S. 678 (1978);
Fitzpatrick v. Bitzer, 427 U.S. 445
(1976). Union Gas contends that it fits
within the latter category. Union Gas
claims that in enacting CERCLA, Congress
effectively abrogated the states' immu-
nity from suit by private citizens
seeking indemnity for costs incurred in
the clean-up of hazardous waste sites.
-142a-
Union Gas's position must be
considered in light of a line of Supreme
Court cases, the holdings of which may
be distilled into a rule which the court
shall call the clear statement rule."
The principle embodied in the clear
statement rule is that a state cannot be
sued pursuant to the liability provisions
of a federal law unless Congress provides
a clear statement that it intended to
abrogate the states immunity with
respect to that law. The origin of this
rule may be traced to Parder v. Terminal
R. Co., 377 U.S. 184 (1964), where in
the Court faced, for the first time, a
state's claim of immunity against suit
by an individual upon a cause of action
expressly created by Congress. The issue
to be decided was whether a state that
owned and operated a railroad in inter-
state commerce could successfully plead
sovereign immunity in a federal suit
brought against the railroad by its
employee under the Federal Employers'
Liability Act ("FELA"), 45 U.S.C. 551.
et seg. The Court's analysis focused on
the question of whether Congress, in
enacting the FELA, intended to subject a
state to suit under the circumstances
presented. After reviewing the terms
and purposes of the FELA, the Court
concluded that indeed Congress had
intended to allow states. to be sued
under the FELA's liability provisions.
The case ultimately turned on the deter-
mination that the state, by engaging
itself in the railroad business for
profit, had entered into an area normally
occupied by private persons and corpora-
tions. It had therefore consented to be
-144a-
subject to the federal regulations
applicable to the railroad industry and
had waived its sovereign immunity from a
suit under the FELA.
The Parden decision was subse-
quently limited in Employees v. Missouri
Public Health Dept. 411 U.S. 279 (1973),
a case filed against administrative
departments of the State of Missouri by
state employees seeking overtime compen-
sation allegedly due them under the Fair
Labor Standards Act ("FLSA"), 29 U.S.C.
§216(b). Despite express language in
the Act that its coverage extended to
certain state employees, the Court
refused to find that Congress had lifted
the sovereign immunity of the states
‘where the purpose of Congress to give
force to the Supremacy Clause by lifting
the sovereignty of the States and putting
-145a-
the States on the same footing as other
employers! is not clear." Id. 411
U.S. at 287. After reviewing the
pertinent legislative history of the
FLSA the Court concluded that if
Congress intended to deprive the states
of their constitutional immunity, it
would not have done so silently. Since
there was no "clear language" in either
the statute itself or its legislative
history which would indicate that the
states' constitutional immunity was
swept away, the Court ruled that the
Eleventh Amendment barred the employees'
suits against their state employer. 411
U.S. at 285.
Irne holding did not render the
extension of coverage to state employees
meaningless because §16(c) of the FLSA
permits the Secretary of Labor to bring
suit on behalf of state employees for
unpaid wages.
-146a-
In Edelman v. Jordan, 415 U.S.
651 (1974), the Court reversed the
Seventh Circuit's holding that a state,
by participating in a federal-state aid
program governed by federal regulations,
had "constructively consented" to a
citizen's suit related to the state's
administration of that program. The
Edelman Court reiterated that in
considering a claim of surrender of
Eleventh Amendment immunity in the face
of federal legislation, we will find
waiver only where stated by the most
express language or by such overwhelming
implications from the text as [will]
leave no room for any other reasonable
construction. Id. 415 U.S. at 673
(citations omitted). 2
2Following Edelman, the decisions
in Fitzpatrick v. Bitzer, 427 U.S 445
(1976); Hutto v. Finney, 437 U.S. 678
(FOOTNOTE CONTINUED ON NEXT PAGE)
-147a-
Congressional awareness and
compliance with the Supreme Court deci-
sions setting out the clear statement
rule cannot be disputed. Congress has,
through clear statutory language and
legislative intent enacted a number of
(FOOTNOTE CONTINUED )
(1978); and Quern v. Jordan 440 U.S. 332
(1979), have reaffirmed the principle
that the “clear statement rule“ is the
appropriate guideline for examining
claims that Congress has lifted Eleventh
Amendment immunity through its enactment
of particular legislation. Although
these cases concern legislation passed
pursuant to the Fourteenth Amendment,
while the legislation at issue in
Employees, Faden, and Edelman was
passed pursuant to Article I, the
distinction is not material insofar as
the existence of the clear statement rule
is concerned. See Fitzpatrick, supra,
427 U.S. at 452. Succinctly stated, the
Fourteenth Amendment cases focus on
whether §5 of the Fourteenth Amendment
itself provides the clear statement by
Congress necessary to allow abrogation
of the Eleventh Amendment. Of course,
such discussions assume that the clear
Statement rule is the starting point for
the analysis.
-148a-
laws effectively abrogating a state's
immunity in federal court. See e.
Parks v. Pavkovic, 536 F.Supp. 296, 309
(N.D. 111. 1982)(Education for All
Handicap Children Act of 1975 specifi-
cally intended to impose liability on
states for certain education costs);
Oneida Indian Nation of Wisconsin v.
State of New York, 520 F.Supp. 1278,
1305 (N. D. N.Y. 1981) (intent to abrogate
state immunity inferred from congres-
sional intent, statutory language and
special relationship between the Indian
tribe and federal government); modified
on other grounds, 691 F.2d 1070 (2d Cir.
1982); Witter v. Pennsylvania Nat'l
Guard, 462 F.Supp. 299, 306 (E. D. Pa.
1978) (Vietnam Era Veterans Readjustment
Act is an express authorization of
federal suits against a state for back
pay). Abrogat ion of immunity in these
149
cases was premised on a finding that in
enacting the particular legislation at
issue, Congress clearly expressed its
intent to allow states to de sued.
Compare Savage v. Commonwealth of
Pennsylvania, 475 F.Supp. 524, 529 (B. D.
Pa. 1979) (Civil Rights Act of 1871 not
intended by Congress to abrogate a
state's immunity (citing Quern v. Jordan,
440 U.S. 332 (1979)); Municipal Authority
of Bloomsburg v Dept. of Environmental
Resources, 496 F.Supp. 686, 689 (M.D.
Pa. 1980)(Federal Water Pollution Control
Act amendments did not abrogate the
states immunity); Stubbs v. Kline, 463
F.Supp. 110, 116 (W.D. Pa. 1978)
(Rehabilitation Act of 1973 did not
contain the requisite —
intent to abrogate a state's Eleventh
Amendment immunity).
-150a-
Applying the clear statement
rule to the facts of the present case
indicates that allowance of the claim
against the Commonwealth of Pennsylvania
depends on a finding that Congress
expressly intended to abrogate a state's
3
sovereign immunity. A review of the
3In applying the clear statement
rule to the present case, it should
initially be noted that the Supreme Court
has not yet addressed whether a state
can be specifically named as a defendant
in a waiver of abrogtion case, where the
state is being sued under a federal
statute, as opposed to a consent case,
where the 8 is being sued under
state lau. Alabama v. Pugh, 438 U.S.
781 (1979); Py — 209 U.S. 123
(1908). For purposes of deciding the
present motion, however this court will
assume, without deciding, that a state
may be specifically named as a defendant
in a suit under a federal statute which
abrogates the states' Eleventh Amendment
immunity. Of course, a state may, on
its own accord, waive its sovereign
immunity. Parden v. Terminal R. Co.,
supra. The Third Circuit Court of
(FOOTNOTE CONTINUED ON NEXT PAGE)
-15la-
statutory provisions and legislative
history of CERCLA, however, reveals that
there is no clear statement of such an
intent in CERCLA.
Turning to the actual statutory
provisions themselves, the court finds
nothing to indicate that Congress
intended to allow states to be sued by
private citizens under CERCLA. Union
Gas's assertion that Congress did intend
to lift the states' sovereign immunity
centers upon language in Section 9607
(FOOTNOTE CONTINUED)
Appeals has ruled, however, that while
Pennsylvania has waived its sovereign
immunity in state courts, it has not
consented to suits filed in federal
court. Skelan Bd. of Trustees of
Bloomsburg, 669 F.2d 142, 147 (3d Cir.
1982), cert. denied, 103 S. Ct. 468
(1982).
-152a-
that any person“ responsible for illegal
toxic waste dumping is liable to other
"persons" for cost incurred in the clean-
up operation. *
4Section 9607 provides that:
Notwithstanding any other provision
or rule of law, and subject only
to the defenses set forth in
subsection (b) of this section —
(1) the owner and operator of a
vessel (otherwise subject to the
jurisdiction of the United States)
or a facility,
(2) any person who at the time of
disposal of any hazardous substance
owned or operated any facility at
which such hazardous substances
were disposed of,
(3) any person who by contract,
agreement, or otherwise arranged
for disposal or treatment, or
arranged with a transporter for
transport for disposal or treat-
ment, of hazardous substances owned
or possessed by such person, by
any other party or entity, at any
(FOOTNOTE CONTINUED ON NEXT PAGE)
-153a-
(FOOTNOTE CONTINUED )
facility owned or operated by
another party or entity and con-
taining such hazardous substances,
and
(4) any person who accepts or
accepted any hazardous substances
for transport to disposal or treat-
ment facilities or sites selected
by such person, from which there
is a release, or à threatened
release which causes the _ incur-
rence of response costs, of a
hazardous substance, shall de
liable for --
(A) all costs of removal or reme-
dial action incurred by the United
States Government or a State not
inconsistent with the national
contingency plan;
(B) any other necessary costs of
response incurred by any other
person consistent with the national
contingency plan; and
(C) damages for injury to,
destruction of, or loss of natural
resources, including the reasonable
costs of assessing such injury,
destruction, or loss’ resulting
from such a release.
42 U.S.C. §9607 (emphasis added).
-154a-
Section 9601(21) defines a
person, for purposes of CERCLA, as "an
individual, firm, corporation, associ-
ation, partnership, consortium, joint
venture, commercial entity, United
States Government, State, municipality,
commission, political subdivision of a
state, or any interstate body."
Union Gas argues that, since a
"person" includes a state within the
meaning of CERCLA, 42 U.S.C. §9601(21),
a state would be liable to a private
litigant under §9607. This court cannot
agree. A similar argument concerning
the Fair Labor Standards Act ("FLSA")
was suggested by plaintiffs and rejected
by the Court in Employees v. Missouri
Public Health Dept... supra, 411 U.S.
279. In Employees, the term "employers,"
within the meaning of FLSA, included
staterun health institutions. The Supreme
Court found, however, that despite this
-155a-
inclusion, there was no indication of a
congressional purpose to permit a citizen
to sue the state in federal court. 411
U.S. at 285. The Court refused to imply
such a purpose merely because the statute
defined “employers"' so as to include a
particular state-run institution. In
view of Employees, Union Gas's argument
as to the combined effect of Sections
9607 and 9601(21) of CERCLA must be
rejected. Any congressional waiver in
CERCLA of the states' Eleventh Amendment
immunity from suit must therefore be
found in the statute's legislative
history.
A revi
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