# Petition for Writ of Certiorari — Pennsylvania v. Union Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0641%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 491 U.S. 1 ## Text — * 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. -11 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0641%3A02. Public record. Not legal advice.