# Opposition Brief — Pennsylvania v. Union Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0641%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1989 - **Citation:** 491 U.S. 1 ## Text Supreme Court, U.S, FILED FEB 23 isee F. SPAM, AR. No. 87-1241 In the Supreme Court of the Ginited States OCTOBER TERM, 1987 COMMONWEALTH OF PENNSYLVANIA, Petitioner vs UNION GAS COMPANY, Respondent RESPONDENTS BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI Robert A. Swift (Counsel of Record) KOHN, SAVETT, KLEIN & GRAF, PC. 2400 One Reading Center 1101 Market Street Philadelphia, PA 19107 (215) 238-1700 Lawrence Demase ROSE, SCHMIDT, CHAPMAN. DUFF & HASLEY 900 Oliver Building Pittsburgh, PA 15222 (412) 434-8610 SMITH EOWARDS DUNLAP COMPANY 28067 £ ALLEGHENY AVENUE PHILADELPHIA PA 101346215) 425 8800 QUESTIONS PRESENTED 1. Whether the decision below correctly applies prior decisions of this court? 2. Whether Congress is empowered by the U.S. Con- stitution to abrogate state immunity in Article | enactments? 3. Whether retroactive liability under CERCLA pre- sents an Eleventh Amendment issue? PARTIES TO THE PROCEEDINGS The parties to the proceeding in the United States Court of Appeals for the Third Circuit were as follows: Appellant: Union Gas Company Appellee: Commonwealth of Pennsylvania STATEMENT OF PARTIES AFFILIATED WITH RESPONDENT The following are parent, subsidiary or affiliate companies of respondent Union Gas Company: Penn Fuel System, Inc. North Penn Gas Company Penn Fuel Gas, Inc. Gas Oil Products, Inc. Gas Oil Products Inc. of Delaware Allied Gas Company Central Penn Gas Company Counties Gas Company Interborough Gas Company Lewistown Gas Company South Penn Gas Company TABLE OF CONTENTS Page Tee eT eo tac ceccesccccees l SE PCR GGG eesceecsecscecccssecesscccces l CONSTITUTIONAL AND STATUTORY PROVISIONS ee cic ccesesescceveces 2 STATEMENT OF THE CASE ...................055- 3 REASONS FOR DENYING THE WRIT .............. 5 EEE eee 10 TABLE OF CITATIONS CASES Page Andrus v. Charlestone Store Products Co., 436 U.S. 604 SE nvueeeuntdenescentheusucuss cece 10 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985) 5, 7 County of Monroe v. Florida, 678 F.2d 1124 (2d Cir. 1982) 8 County of Oneida, New York, v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985) .............. 8 Hans v. Louisiana, 134 U.S. 1 (1980)... ee, 7 In re McVey Trucking, 812 F.2d 311 (7th Cir. 1987)... ... 8 Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir. 1979) 8 Peel v. Florida Department of Transportation, 600 F.2d SP CE oeccccw cea hedhesaeuledeuenes 8 Pennhurst State School & Hospital v. Halderman, 465 U.S. GE. idcnsedducevdbiskehacacdeesanciectaese 5 Prout v. Starr, 188 U.S. 537 (1903) ........ Pree 8 Thorpe v. Housing Authority, 393 U.S. 268 (1969) ....... 10 U.S. v. Northeastern Pharmaceutical & Chemical Co.., Inc., 810 F.2d 726 (8th Cir. 1986) ................. i) U.S. v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801) .... 10 Welch v. State Department of Highways and Public Trans- portation, 107 S.Ct. 2941 (1987) ................ 5, 7,8 STATUTES Comprehensive Environmental Response, Compensation & Liability Act of 1980, ee 6.544048 606heendeet sandbdecwn a sb te Superfund Amendment and Reauthorization Act of 1986, GS Ge. OE .b.0.bicud cus tancesdeeeeeceeal nd «ind ob buds eonee ee “I bo TABLE OF CITATIONS—(Continued ) STATUTES Page Clean Water Act, 33 U.S.C. § 1321(b)\(3), 1321(f)(2) ...... 4 Clean Water Act, 33 U.S.C. § 7401, 7604 .............. 6 Federal Water Pollution Act, 33 U.S.C. § 1251, 1365 .... 6 Resource Conservation and Recovery Act, 42 U.S.C. Nene ee es eee cadnndnte ae 7 I eka aeeeecuuas 6 ns totteekedeure eT a PFE ane pepe 7 UNITED STATES CONSTITUTION I ick inh ccnatpuecbsendescvedacnsns & EERIE EC POET hr On rere: 9 ee icc edd nnibaebaseenues passim PA IID 6c Sicceccevnccdscveccdaes passim OCTOBER TERM, 1987 No. 87-1241 COMMONWEALTH OF PENNSYLVANIA, Petitioner VS. UNION GAS COMPANY, Respondent RESPONDENTS BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI CITATIONS TO OPINIONS The Opinion of the United States Court of Appeals for which Pennsylvania seeks review is reported at 832 F.2d 1343 (1987) (“Union Gas II”). The Opinion of the Court of Appeals which was vacated by Order of this Court, 107 S.Ct. 865 (1987), is reported at 792 F.2d 372 (1986) (“Union Gas I). The Opinion of the United States District Court for the Eastern District of Pennsylvania which originally dismissed the third party com- plaint against Pennsylvania is reported at 575 F.Supp. 949 (1983). JURISDICTION The judgment of the Court of Appeals was entered on November 3, 1987. Pennsylvania filed its Petition within 90 days of the entry of judgment. 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. United States Constitution, Amendment XI. “The Judicial Power of the United States shall not be con- strued 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 Citizens or subjects of any Foreign State.” 2. United States Code, 42 U.S.C. §§9601(21) and 9607(a), P.L. No. 96-510, 94 Stat. 2767 [Comprehensive Environmental Response, Compensation and Liability (“Superfund”) Act of 1980 CERCLA )|: 9601(21) “‘person’ means an individual, firm, corporation, association, partnership, consortium, joint ven- ture, commercial entity, United States Govern- ment, State, municipality, commission, political subdivision of a State or any interstate body,” 9607(a) ~... any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, . .. shall be liable for . . . any other necessary costs of response incurred by any other person consistent with the national contingency ey 3. United States Code, 42 U.S.C. §9601(20D) and 9620(a)(1), P.L. No. 99-499, 100 Stat. 1613 [Superfund Amend- ments and Reauthorization Act of 1986 (“SARA’)|: 9601(20\D) The term “owner or operator’ does not include a unit of State or local government which ac- quired ownership or control involuntarily through bankruptcy, tax delinquency, aban- donment, or other circumstances in which the government involuntarily acquires title by vir- tue of its function as sovereign. The exclusion provided under this paragraph shall not apply 3 to any State or local government which has caused or contributed to the release or threat- ened release of a hazardous 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 substantively, as any non- governmental entity, including liability under section 107. 9620(a)1) In general.—Each department, agency, and instrumentality of the United States (includ- ing the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 107 of this Act. Nothing in this section shall be construed to afiect the liability of any person or entity under sections 106 and 107. STATEMENT OF THE CASE The sudden release of coal tar into Brodhead Creek in Stroudsburg, Pennsylvania in October 1980 caused the United States to declare the site the nation’s first emergency Superfund site. Adjacent to the stream from 1890 to 1948 in an industrial section of Stroudsburg had been a carburetted water gas plant which produced coal gas as well as its by-product, coal tar. The EPA regarded in-ground disposal of coal tar as state of the art technology during the first part of this century (see EPA Amended Fund Authorization Report). The company operating the plant changed ownership several times before being merged into respondent in 1978. The plant was dismantled in 1948 and replaced successively by propane and natural gas distribution systems. Between 1960 and 1962 the State rechanneled, narrowed and deepened Brodhead Creek and erected « dike on its sides. 4 The Borough of Stroudsburg and later the State obtained a permanent easement or fee title to much of the site. The rechan- nelization of this fast flowing stream started a process of dow, cutting of the stream bank and erosion of the toe of the dike that led to the release of coal tar. It was during repairs to the toe of the dike that coal tar was first discovered. Between April 1951 and January 1982, the United States did a cleanup of the site at an alleged expense of $967,000.00. The United States commen:ed this lawsuit on May 23, 1983 in the United States District Court for the Eastern District of Pennsylvania to recover its cleanup costs pursuant to CERCLA and the Clean Water Act, 33 U.S.C. §§$1321(b\(3) and (#2), naming respondent as the sole defendant. Respondent filed a third-party complaint naming the Commonwealth of Pennsylva- nia and the Borough of Stroudsburg as third party defendants alleging that they were owners and operators of a facility at the site within the meaning of CERCLA, 42 U.S.C. §9601(20)A), and, together with others, negligently caused or contributed to the release of coal tar. The State moved to dismiss the third-party complaint under Fed. R. Civ. P. 12:b\1) and 12(b\(6) alleging that it was immune to suit under CERCLA pursuant to the Eleventh Amendment to the Constitution. The district court granted the State's motion (Pet. App., 139a). Thereafter, the United States filed an amended complaint revising its damage claim, and respondent filed an amended third-party complaint. The State again moved to dismiss, and the district court granted the motion for the reasons set forth in its earlier opinion. As a result of a settlement reached among the United States. respondent and the Borough of Stroudsburg whereby respondent paid a major portion of the cost of cleanup, the district Court dismissed the action. Respondent then appealed the district court's dismissal of Pennsylvania as a defendant to the United States Court of Appeals for the Third Circuit. A two member majority of the Third Circuit affirmed the district courts order. with the Honorable A. Leon Higginbotham filing a vigorous dissent concluding that CERCLA clearly abrogated states Eleventh Amendment immunity. (Pet. App. 74a) 5 On October 17, 1986, shortly after respondent filed a peti- tion for certiorari with this Court, the President signed into law SARA, which amended CERCLA. At the urging of respondent herein and the United States, which as amicus contended SARA “authorizes suits against states or local governments for liability or contribution when such entries caused or contributed to the release or threatened release of a hazardous substance,” (Amicus Br. at 5-6) this Court granted certiorari, vacated the court of appeals opinion, and remanded for consideration in light of SARA. On remand, the court of appeals unanimously reversed the district court holding that the Eleventh Amendment does not bar suit against Pennsylvania. (Pet. App. la) The court of appeals further held that (1) the language of CERCLA, as amended by SARA, clearly and explicitly abrogated state immunity, (2) Con- gress may, consistent with the Constitution, abrogate state im- munity in an Article | enactment, and (3) CERCLA, as amended by SARA, applies retroactively to respondent's cause of action. REASONS FOR DENYING THE WRIT The issues raised by Pennsylvania are not appropriate for review because a unanimous Third Circuit Court of Appeals correctly resolved them, and its opinion is not in conflict with decisions of this or other courts. I THE DECISION BELOW CORRECTLY APPLIES PRIOR DECISIONS OF THIS COURT The court of appeals correctly applied the clear statement rule which this Court has articulated in numerous decisions. The clear statement rule requires that Congress “express its inten- tion to abrogate the Eleventh Amendment in unmistakable lan- guage in the statute itself” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243 (19585). See also Welch v. State Department of Highways and Public Transportation, 107 S.Ct. 2941 (1987). Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1954). Far from simply paving “lip-service’ to this rule, the 6 court of appeals thoroughly and conscientiously applied it in interpreting CERCLA, as amended by SARA. The court of appeals correctly concluded that states, like the federal government, are subject to liability to private parties under section 107(a) of CERCLA. In Union Gas I, Pet. App. 74a, the court of appeals acknowledged that Congress had mde a person’ liable for environmental cleanup costs and “person” was defined to include a state, but held this language did not satisfy the clear statement rule. On remand from this Court, the court of appeals discerned Congress’ unmistakable intent in SARA’ Amendment to section 101(20)\D) of CERCLA, to wit: a state or local government shall be subject to the provisions of the Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental en- tity, including liability under section 107. This provision, the court of appeals observed, ~ replicates” CERCLAS waiver of federal government immunity. Union Gas II, Pet. App. 24a. Indeed, the Congressional conference com- mittee that inserted the above quoted clause stated that its purpose was “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 procedurally and substantively, as any non-governmental entity, including liability under section 107 and contribution under section 113° (emphasis added) H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 185-86, reprinted in 1986 U.S. Code Cong. & Admin. News 3276, 3278-79. SARA provides other evidence of Congress unmistakable intent to abrogate Eleventh Amendment immunity in section 107 actions. First, SARA preserves states immunity to suit from citizen suits filed pursuant to section 159. 42 U.S.C. $9659. The citizen suit provision makes persons subject to suit only “to the extent permitted by the Eleventh Amendment to the Constitu- tion. This phrase was the same language used by Congress in prior environmental legislation to preserve states Eleventh Amendment immunity. See, Clean Air Act, 42 U.S.C. 7401, 7604, Federal Water Pollution Control Act, 33 U.S.C. 1251, 7 1365, Resource Conservation and Recovery Act, 42 U.S.C. 3251, 6967. By contrast, there is no similar statutory limitation on section 107 actions under CERCLA. Second, Union Gas !'s analysis relied heavily on the absence in CERCLA of an explicit waiver of state immunity similar to the federal waiver of immunity in section 107(g). 42 U.S.C. 9607(g).! In SARA, Congress not only replicated the federal waiver in section 101(20\(D), but it amended the federal waiver of immu- nity clause to provide that “nothing in this section shall be construed to affect the liability of any person or entity under sections 106 and 107°. 42 U.S.C. §9620(a\(1). Thus, Congress explicitly precluded the analysis used in Union Gas 1. Pennsylvania’ interpretation of section 101(20)\D) enlisted no adherents on the court of appeals and lacks all credibility. If, as Pennsylvania contends, this provision was intended to insu- late states from liability just to the federal government, it could have been worded to so provide. It was not. Rather, Congress made sure there was no such implication by expressly equating states liability to that of nongovernmental entities. The United States own abandonment of sovereign immu- nity in a statute imposing strict liability is testament to the extent of the Congressional commitment that no one should be immune. By holding that states immunity to suit under section 107 is abrogated, Union Gas II conscientiously applies the clear statement rule and closes the yawning gap in CERCLA’ reg- ulatory scheme that Union Gas I had left. ; TT IT IS NOW WIDELY RECOGNIZED THAT CONGRESS IS EMPOWERED TO ABROGATE STATE IMMUNITY IN ARTICLE | ENACTMENTS® 1. Section 1O7(g) was recodified by SARA as section 120(a\1) of CERCLA. Section 120(a)1) is quoted in its entirety supra 2. Should this Court grant certiorari, Union Gas will contend in its briet on the merits that Hans v. Lowisiana, 14 US. 1 (1890), and its progeny should be overruled since the Eleventh Amendment only precludes federal courts from asserting jurisdiction in diversity of citizenship cases between a state and a citizen of a diflerent state. Atascadero State Hospital v Scanlon, 473. U.S. at 238 (1985) Brennan, dissenting), Welch cv State Department of Highways and Public Transportation, WT S. Ct. at 2955 (|. Brennan, dissenting) Ss Pennsylvania seeks to augment state immunity and under- mine Congressional power through its contention that Congress may only abrogate state immunity when acting pursuant to the Fourteenth and later Amendments to the Constitution. This proposition has never been accepted by this Court, Welch v. State Department of Highways and Public Transportation, 107 S. Ct. 2941, 2946 (1987), County of Oneida, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 252 (1985), and has been expressly rejected by five courts of appeals. Union Gas Il, Pet. App. 64-65a; In re McVey Trucking, 812 F.2d 311, 328 (7th Cir. 1987) cert. denied 108 $.Ct. 227 (1987), County of Monroe v. Florida, 678 F 2d 1124, 1128-35 (2d Cir. 1982) cert. denied, 459 U.S. 1104 (1983); Peel v. Florida Department of Transportation, 600 F.2d 1070, 1074-82 (Sth Cir. 1979), Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1285 (9th Cir. 1979). Indeed, no court has ever accepted Pennsylvania's proposi- tion for very fundamental reasons. Pennsylvania would have this Court interpret the Constitution on a “time-line” See Union Gas Il, Pet. App. at 40a. Thus, in Pennsylvanias view, the Fourteenth Amendment is a watershed, and Congress may only abrogate state immunity as to enactments which draw their constitutional authority from the Fourteenth and later Amend- ments, not from the preceding text of the Constitution. Not only does this proposition violate this Court's admonition that the Constitution must be interpreted as a single instrument, all of whose parts are equal, Prout v. Starr, 188 U.S. 537, 543 (1903), but it would measurably diminish Congress power to protect citizens through the exercise of its Article | powers. Surely the Eleventh Amendment, which by its own lan- guage restricts the judiciary, not Congress, was never intended to limit Congress Article | powers. Article 1, Section 8, of the Constitution, by far the most frequent source of power for con- gressional enactments, has an eflectuating clause similar to that of the Fourteenth Amendment. Clause 18 of Section 8 em- powers Congress: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other 9 Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof By comparison section 5 of the Fourteenth Amendment de- clares: Congress shall have power to enforce, by appropriate legis- lation, the provisions of this article. In both clauses the states ceded to Congress the authority to carry out its enumerated powers, including the abrogation of state immunity. The Eleventh Amendment simply does not, and was not intended to, limit the enabling clause of Article L. As the court of appeals pointed out, the Constitution itself provides a system of checks and balances so that Congress does not exercise Eleventh Amendment abrogation recklessly. Union Gas Il, Pet. App. 56a. Congress consists of senators and repre- sentatives elected in each state. It is they who determine, in unmistakable language. which federal statutory schemes are so important as to require that states participate and be liable in private party actions. Should Congress perceive that the burden on states of being subjected to suit in federal court has become too onerous, Congress can amend the law to create state immu- nity from suit. il RETROACTIVE LIABILITY UNDER CERCLA DOES NOT PRESENT AN ELEVENTH AMENDMENT ISSUE CERCLAsS retroactive liability does not implicate Eleventh Amendment concerns. Since Congress has the power to abro- gate Eleventh Amendment sovereign immunity, it matters not whether Congress utilizes that power in a statute with a prospec- tive or retrospective scope. Issues of the constitutionality of abrogation under the Eleventh Amendment and the constitu- tionality of retroactive liability under the Fifth Amendment's due process clause are distinct. CERCLA’ imposition of retroac- tive liability has been held to be constitutional under the Fifth Amendment, see, e.g., U.S. v. Northeastern Pharmaceutical & Chemical Co., Inc., 810 F.2d 726, 732-34 (Sth Cir. 1986) and cases cited therein. and Pennsylvania does not contend to the tional, and the court of appeals properly followed this Court's precedents in applying the law in effect at the time the appeal was decided. Union Gas Hl. Pet. App. 67-72a; Andrus vw. Charlestone Store Products Co. 496 U.S. 604, 607-08. n. 6 (1978). Thorpe vc. Housing Authority, 393 U.S. 268, 281-82 (1969). US. vc. Schooner Peggy. 5 U.S. 1 Cranch (TSOL). 3 : £ CONCLI SION For all the foregomg reasons respondent respectfully urges this Court to deny Pennsyh anias petition for writ of certiorari. Robert A. Swift ‘Counsel of Record) KOHN, SAVETT. KLEIN & GRAF, PC. 2400 One Reading Center 1101 Market Street Philadelphia, PA 19107 (215) 238-1700 Lawrence Demase ROSE, SCHMIDT, CHAPMAN, DUFF & HASLEY 900 Oliver Building Pittsburgh, PA 15222 (412) 434-8610 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0641%3A03. Public record. Not legal advice.