Amicus Curiae Brief — Pennsylvania v. Union Gas Co.

4, )

Supreme Court, US

No. 87-1241 FILED

FEB 7? 1988

IN THE

Supreme Court of the United Maths

TN el

Octroser Term, 1987

COMMONWEALTH OF PENNSYLVANIA,

Petitioner.

VS.

UNION GAS COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF STATES OF NEW YORK, CALIFOR-

NIA, CONNECTICUT, ILLINOIS, INDIANA,

IOWA, KENTUCKY, MARYLAND, MISSOURI,

NEW , NEW MEXICO, NORTH

CAROLINA, OKLAHOMA, SOUTH CAROLINA,

UTAH, VERMONT, and WEST VIRGINIA AS

AMICI CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

Ropert ABRAMS

Attorney General of the

State of New York

QO. Perer SHERwoop

Solicitor General

Evatine Gait SUCHMAN*

Assistant Attorney General

Environmental Protection Bureau

120 Broadway

New York, New York 10271

(212) 341-2458

“Counsel of Record

(cover continued within)

Joun K. Van ve Kamp

Attorney General of the

State of

California

Currorp L. RecHTsCHAFFEN

Deputy Attorney General

San Francisco, California

(415) 557-8969

Josern |. LiepermMan

Attorney General of the

State of Connecticut

KENNETH N. Teprorp

Assistant Attorney General

State Office Building

Room 147

Hartford. Connecticut 06106

(203) 566-7213

Nea F. Harrican

Attorney General of the

State of Illinois

Chief, Civil Appeals Division

100 West Randolph, 12th Fi.

Chicago, Illinois 6060)

(312) 917-3698

Linuey E. Pearson

Attorney General of the

State of Indiana

Harry Jonn Watson, III

Chief Counsel

219 State House

Indianapolis. Indiana 46204

(317) 232-5666

THomas J. MILLER

Attorney General of the

State of lowe

Joun P. Sarcone

Assistant Attorney Genera!

Hoover Building 2nd Floor

Des Moines, lowa 50319

(515) 281-5351

Davip L. ARMSTRONG

Attorney General of the

Commonwealth of

Kentucky

WituaM G. Haart, Jr

General Counsel

Dennis J. Connirr

Attorney Chief

Office of Genera) Counse!

and Environmenta!

Protection Cabinet

Capitol Plaza Tower

5th Floor

Frankfort, Kentucky 4060]

(502) 564-5576

]. Josern Curran, Jr.

Attorney General of the

State of Marylanc

Ricnarp M. Hai

Principal Counsel

Micnag. C. Powe.

Deputy Counsel

300 W. Preston Street

Baltimore. Marviand 2120)

(301, 225-1846

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QUESTIONS PRESENTED

1. Whether a provision in the Superfund Act, as amended,

referring to state liability without mention of waiver of the

eleventh amendment, constitutes the requisite unmistakable ex-

pression of Congressional intent necessary to nullify eleventh

amendment protections.

2. Whether Congress possesses the power to abrogate the

eleventh amendment, without consent of the States, actual or

implied, pursuant to article I of the Constitution.

3. Whether a valid Congressional abrogation of the eleventh

amendment may be applied retroactively to completed state

actions.

Talia oF Antivoniiias wo... cc ccc cc ccc cccccess

Interest of Amici Curiae ......................

rare |... ccceeeveseusvesces

The court of appeals erred in its holding

that CERCLA as amended by SARA

The court of appeals erred in its

conclusion that Congress may unilaterally

abrogate eleventh amendment immunity

when acting pursuant to its powers under

The court of appeals erred in finding that

the purported Congressional abrogation of

eleventh amendment immunity in

CERCLA could be applied retroactively ..

13

TABLE OF AUTHORITIES

Cases: Page

Atascadero State Hospital v. Scanlon, 473 U.S.

eee ek ee eee dienes 5, 6, 9,

10, 12

Collins o. Alaska, 823 F.2d 329 (9th Cir. 1987) .. 13

County of Oneida, New York v. Oneida Indian

Nation of New York State, 470 U.S. 226

SE rattan a Eee ate oe Bie, 6 aaee 10

Edelman v. Jordan, 415 U.S. 651 (1974) ........ 2,11, 13

Employees of the Department of Public Health

and Welfare v. Missouri Department of Public

Health and Welfare, 411 U.S. 279 (1973) ..... 5, 6, 9

11, 13,

14

Ex Parte State of New York No. 1, 256 U.S. 490

SS eA eo ee

Ex Parte Young, 209 U.S. 123 (1908) ........... 9

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ....... 9, 10

Hans v. Louisiana, 134 U.S. 1 (1890) ........... 2

Parden v. Terminal R.R. Co., 377 U.S. 184

a a ns wines ll

Pennhurst State School and Hospital v.

Halderman, 451 U.S. 1 (1981) .............. 12, 13

Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89 (1984) ......... .... 2, 4, 5,

9, 12

Quern o. Jordan, 440 U.S. 332 (1979)........... 5, 6, 9

United States v. Bryan, 339 U.S. 323 (1950) ..... 8

United States v. Dart Industries, Inc., No.

Ne ee Ce ieiecen es 3

as vii

Page Page

United States v. Freeman, Civil Action No. ry 10

86-748-E (W.D.N.Y.).-- eee 3 U.S. Const., amend. XXIV.................... 10

United States v. J.B. Stringfellow, Civil Action Statutes:

No. 83-2501-JMI (C.D. Cal.) .........------. 3 C hensive Environmental Response

nited States v. Kirby, 74 U.S. 482 (1 Saeaad - Compensation and Liability Act of 1980

. " — (“CERCLA”), 42 U.S.C. § 9601 et seq. (1982) passim

United States v. Mississippi, 380 U.S. 128 (1965) . CERCLA, 42 U.S.C. § 9601(20) (1982) ......... ;

United States v. Union Gas Company, 792 F.2d CERCLA, 42 U.S.C.A. § 9601 (20) (West Supp.

372 (3d Cir. 1986) 0.66 eee renee 6, 8 RTE eran ne 5 a pep 7,8

United States v. Union Gas Company, 832 F.2d CERCLA, 42 U.S.C. § 9601(21) (1982).........

1343 (3d Cir. 1987) 0... 00ers ; CERCLA, 42 U.S.C. § 9607 (1982)............. 7,8

United States v. United States Fidelity and CERCLA, 42 U.S.C. § 9607(a) (1982) .........

Guaranty Corp., 309 U.S. 506 (1940) . Fair Labor Standards Act, 29 U.S.C. § 201 et

Welch v. Texas Department of Highways and seq. (1972) VETTTTTTTITITITTL LT

Public Transportation, 107 S. Ct. 2941 (1987) ~ ye Ce et ED ccd cdccdenececocesoces

10, 1l,

12 Jones Act, 46 U.S.C. § 688 (1975)....... ......

Rehabilitation Act of 1973, 29 U.S.C. § 794

Constitutional Provisions: a es 5

U.S. Comst., ast. To... ee eee reer reecees 2,9, 12 Superfund Amendments and Reauthorization Act

U.S. Const., art. I, § 8, cl. 1 (“spending clause”) 12 phn : sinnene Ds | wi - | _— oe _ ae 2.7.8.

U.S. Const., art. 1, § 8, cl. 3 (“commerce clause”) 10, 11 9, 10, 13

U.S. Const., amend. XI (“eleventh amendment”) passim Ragiietionn

40 C.F.R. Part 300, Appendix B (1987) 3

U.S. Const., amend. XIII... 10 a oan

U.S. Const., amend. XIV (“fourteenth Comments of Senator Stafford, 131 Cong. Rec.

amendment”) pees hy = $11619 (daily ed. September 17, 1985) .. 8

Conference Report, H.R. Rep. No. 962, 99th

U.S., Const., amend. XV 10 Cong., 2d Sess. 185 (1986) ....... | 8

No. 87-1241

Supreme Court of the United States

Ocroser Texm, 1987

COMMONWEALTH OF PENNSYLVANIA,

Petitioner,

vs

UNION GAS COMPANY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF STATES OF NEW YORK, CALIFOR-

NIA, CONNECTICUT, ILLINOIS, INDIANA,

IOWA. KENTUCKY, MARYLAND, MISSOURI,

NEW MEXICO, NORTH

CARO OKLAHOMA, SOUTH CAROLINA,

UTAH ONT, and VIRGINIA AS

AMICI CURIAE IN SUPPORT OF PETITION

FOR WRIT OF CERTIORARI

INTEREST OF AMICI CURIAE

The amici curiae States of New York, Calitornia, Connecticut,

Illinois, Indiana, lowa, Kentucky, Maryland, Missouri, New

Jersey, New Mexico, North Carolina, Oklahoma, South Carolina,

Utah, Vermont, and West Virginia, submit this brief in support

of the Commonwealth of Pennsylvania's petition for review on

writ of certiorari of the decision rendered by the United States

Court of Appeals for the Third Circuit in United States v. Union

Gas Company, 832 F.2d 1343 (3d Cir. 1987) (slip opinion con-

tained in Petitioner's Appendix). The court of appeals held that

Congress, in enacting the Comprehensive Environmental

ed by the Superfund Amendments and Reauthorization Act of

1986, P.L. 99-499, 100 Stat. Oe —

private Superfund suits against the states federal

as such, expressed its intention to abrogate the eleventh amend-

ment to the United States Constitution. Furthermore, the court

of appeals found that Congress had the power to so abrogate,

without any consent on the part of the states, pursuant to arti-

cle I of the Constitution. Finally, the court held such abroga-

tion to apply retroactively to state activities undertaken before

its enactment.

The eleventh amendment was designed to preserve the im-

portant principle of federalism and to protect states from un-

warranted intrusions by the federal courts into state treasuries.

Pennhurst State School and Hospital v. Halderman, 465 U.S.

89, 98 (1984) (Pennhurst 1/) (relying on Hans v. Louisiana, 134

USS. 1, 15 (1890)); Edelman o. Jordan, 415 U.S. 651, 668 (1974).

The vitality of this constitutional protection has been frequently

and consistently reaffirmed by this Court, most recently in Weich

v. Texas Department of Highways and Public Transportation,

107 S. Ct. 2941, 2949-53 (1987). Despite such precedent, the court

below has attempted to restrict severely the protection afford-

have a harsh impact on the states’ treasuries and provide a

disincentive for states to protect the public health and welfare.

Hazardous waste sites exist in all the amici states as evidenced

by the National Priority List developed pursuant to CERCLA.

See 40 C.F-R. Part 300, Appendix B (1987). The states are heavily

involved in the cleanup of these sites. Actions taken in the past

as well as those currently being undertaken by the amici states

in providing services essential to the public welfare! pursuant

to valid police powers,’ or even in response to the presence of

toxic substances,’ has resulted in and certainly will lead to in-

creased litigation commenced by private parties against the states

in federal court under CERCLA.* Future actions required of

the states will be discouraged to the detrimer.t of the public.

' Consider, for example, the Commonwealth of Pennsylvania s activites which

were at issue before the court below Pennsyivania undertook to dredge and

fill the Brodhead Creek in order to alleviate flooding which had occurred in

the area Certainly, these operations were essential to the public welfare

‘In New York, for example, in response to information concerning the unlawtul

disposal of hazardous substances, the New York State Police, pursuant to 4

valid warrant, entered the property in question. discovered the hazardous

materials, and roped off the area as a “crime scene” The State Police were

sued in a third-party action for contribution to cleanup costs

as an “operator” of the site under CERCLA. The case is currently before Judge

Elfvin in the Western District of New York for consideration of the states mo-

thon to dismiss on eleventh amendment grounds L'nited States + Freeman.

Civil Action No. 86-748-E (W._D.N_Y.). The State of South Carolina has been

sued in a similar third-party action for exerting control over a hazardous waste

site by making several regulatory decisions, in the course of its normal govern:

mental functions, which ‘legedly affected the site South Carolina prevailed

on a motion to dismiss on eleventh amendment grounds before the district

court. The decision is currently on appeal United States « Dart Industries.

Inc., No. 87-3130 (4th Cir).

’ For example, states have encountered situations in which private parties have

asserted that the states are “owners or operators” under CERCLA because

they have exerted control over property when conducting in-depth investiga.

hons of the contamination present on the site or by performing other cleanup

activities. California is one such example Eg. United State 0 / 8.

Stringfellow, Civil Action No. 83-2501-JMI (C.D. Cal)

* The litigation often takes the form of a third-party action tor contribution

to cleanup costs alleging that these state actions have contnbuted in some way

Footnote continued:

It is likely that burdens. similar to those discussed above under

the Superfund Act, wil, be borne by the states in other areas

this Court at this time will provide the necessary guidance to

Congress and the states concerning the current vitality of the

eleventh amendment. Therefore, the seventeen emict states

respectfully urge this Court to grant the petition for a writ of

certiorari in this matter.

STATEMENT OF THE CASE

Amici rely on the as set forth in the Petition of the

Commonwealth of

UMENT

The decision of the of Appeals for the Third Circuit

disregard of precedent and the wide impact it will have justify

this Court's review of the matter at this time.

1. The court of appeals erred in its holding that CERCLA

as amended by SARA evinced Congressional intent to override

to the hazardous waste problem This type of litgaton tor monetarn damages

against the states is exactly the type which is barred by the eleventh amend:

ment The Framers determined long ago that such matters of liability are more

appropnately handled ty the state courts Peanherst 11. 465 US at ©

the eleventh amendment. In determining whether a Congres-

sional act serves to nullify eleventh amendment immunity, ir-

respective of the authority under which Congress purports to

act, this Court has consistently considered the threshold ques-

tion whether Congress in its enactment has clearly expressed

its intent. This Court has demonstrated a great “reluctance to

infer that a State’s immunity from suit in the federal courts has

been negated . . . [in] recognition of the vital role of the doc-

trine of sovereign immunity in our federal system.” Pennhurst

II, 465 U.S. at 99. “A State's constitutional interest in immunity

encompasses not merely whether it may be sued but where it

may be sued.” Id. (emphasis in original, footnote omitted). For

this reason, this Court has established the very specific ground

rule that there must be “an unequivocal expression of Congres-

sional intent” before the effect of the eleventh amendment may

be neutralized. Id.

This Court forcefully enunciated this “clear language” rule

in Employees of the Dept. of Public Health and Welfare v.

Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 285

(1973).* Since then, the requirement has been reaffirmed and

several times. See Atascadero State Hospital v.

Scanlon, 473 U.S. 234, 242 (1985) (citing Pennhurst II, 465 U.S.

at 99); Quern v. Jordan, 440 U.S. 332, 342 (1979).* Just last term,

* In Employees, this Court considered whether employees of Missouri health

facilities could sue the state in federal court for overtime pay under the Fair

Labor Standards Act, 29 U.S.C. § 201 et seq. (1972). The Act applied to

7 which was defined to include state hospitals. This Court found

the definition of “employers” insufficient to demonstrate Congressional in-

tent to deny states of their eleventh amendment immunity. 411 U.S. at 285.

* This Court in Atascadero reviewed language in Section § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982), which provided that

remedies for violations of the Act “shall be available to any person aggrieved

by any act or failure to act by any recipient of Federal assistance” under the

Act. 473 U.S. at 245 (emphasis added). States were eligible recipients of such

federal assistance, however, the language of the statute was held to be inade-

quate for purposes of the “clear language” standard. Similarly, in Quern o.

Jordan, eleventh amendment immunity was determined to be unaltered by

the language in 42 U.S.C. § 1983 (1978). 440 U.S. at 342.

Justice Powell observed that this Court “consistently has required

an unequivocal expression that Congress intended to override

Eleventh Amendment immunity.” Welch, 107 S. Ct. at 2948. The

Court in Welch went on to conclude that the statute at issue

lacked the requisite “unmistakably clear language.” Id.’ “Because

of the role of the States in our federal system, [‘a] general

authorization for suit in federal court is not the kind of une-

quivocal statutory language sufficient to abrogate the Eleventh

Amendment.{"}” Id. at 2947 (quoting Atascadero, 473 U.S. at

246).

In each of the cases in which this Court has found the statute

failed to satisfy the “clear language” rule, see, e.g., Welch, 107

S. Ct. at 2947; Atascadero, 473 U.S. at 245; Quern v. Jordan,

440 US. at 342; and Employees, 411 U.S. at 285, Congress failed

to state specifically that it was eliminating eleventh amendment

protections. In fact, there was no mention of the eleventh amend-

ment in these statutes. Without such clear notice, this Court

has demonstrated an emphatic unwillingness to infer that states

should be deprived of this constitutional defense. It is with this

backdrop of precedent that the court of appeals most remarkably

concluded that an amendment to the definitional section of

CERCLA, without mention of the eleventh amendment in its

language, clearly expressed Congress’ intent to abrogate the

eleventh amendment.

The first decision by the court below in United States v. Union

Gas, 792 F.2d 372 (3d Cir. 1986)(slip opinion contained in Peti-

tioner’s Appendix) correctly relied on this Court's opinion in

Employees, 411 U.S. at 285, in determining that the eleventh

amendment barred the action under CERCLA. 792 F.2d at

379-80. Specifically addressed was the question whether the in-

clusion of states in the definition of “person” under CERCLA

constitutes a waiver of a state's eleventh amendment immunity.

’ The provision considered and rejected in Welch was § 33 of the Jones Act,

46 US.C. § 688 (1975), which provided that “any seaman who shall suffer

personal injury in the course of his employment may . maintain an action

for damages at law.” and that in such action jurisdiction lies in the federal

district courts. 107 §. Ct. at 2947.

42 U.S.C. § 9601(21) (1982).* The court of appeals found that

the liability provision of CERCLA, 42 U.S.C. § 9607 (1982),”

did not allow for private suits against states in federal court simp-

ly because of the definition of “person,” but did empower the

United States to sue the states under the statute.”

The proposition that private suits against a state are not

authorized by CERCLA is not altered by the SARA amendments

to the Superfund Act. Specifically, the definitional section of

CERCLA, 42 U.S.C. § 9601(20) (1982), was amended by SARA

to include the following new subparagraph:

(D) The term “owner or operator” does not include

a unit of State or local government which acquired

ownership or control involuntarily through bankrupt-

cy, tax delinquency, abandonment, or other cir-

cumstances in which the government involuntarily ac-

quires title by virtue of its function as sovereign. The

exclusion provided under this paragraph shall not app-

ly to any State or local government which has caused

or contributed to the release or threatened release of

a hazardous substance from the facility, and such a

State or local government shall be subject to the pro-

visions of this Act in the same manner and to the same

extent, both procedurally and substantively, as any

nongovernmental entity, including liability under sec-

tion 9607 of this title.

CERCLA, 42 U.S.C.A. § 9601(20) (West Supp. 1987).

*“Person” as defined in CERCLA includes “an individual, firm, corporation,

association, 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) (1982).

* The liability provision of CERCLA, 42 U.S.C. § 9607(a) (1982), provides,

inter alia, that any person who disposes of hazardous substances or who owns

or operates, at the time of disposal, a facility at which hazardous substances

were disposed of, shall be liable for the costs of removing the hazardous

substances.

Suits by the United States against states are not foreclosed by the eleventh

amendment. United States v. Mississippi, 380 U.S. 128, 140-41 (1965).

The specific purpose of the amendment was to exclude from

the definition of “owner or operator” any state or local govern-

ment which acquired title or possession involuntarily or by vir-

tue of its function as sovereign. “These are not cases where the

law intended that governments bear the liability burdens of

Superfund. . . .” 131 Cong. Rec. S11619 (daily ed. September

17, 1985) (comments of Senator Stafford). See also the Con-

ference Report accompanying SARA, H.R. Rep. No. 962, 99th

Cong., 2d Sess. 185 (1986). Only if the government has “caused

or contributed” to the release or threatened release of a hazar-

dous substance when it acquired ownership or possession in these

instances does the liability provision of section 9607 apply. As

the court of appeals stated before the passage of the SARA

amendments, however, a state may be held liable in federal court

for damages under CERCLA to the United States only. Union

Gas, 792 F.2d at 380. The new language of SARA contained

in the definition of owner or operator merely redefines the ex-

tent of that liability to the United States to protect “innocent”

states.

If Congress had intended to repudiate the eleventh amend-

ment under CERCLA, as discussed above, Congress would have

had to do so using “unequivocal” language. Congress certainly

would not have chosen to hold states liable only in their capacity

as owners or operators of hazardous waste sites who cause or

contribute to the release of hazardous substances and to allow

those states which simply dispose of hazardous substances at sites

owned by others to remain protected by the eleventh amend-

ment. The new language of section 9601(20)(D) found in the

definition of “owner or operator,” however, suggests that such

a bizarre interpretation of Congressional intent is possible." This

demonstrates that the language is hardly unequivocal and much

too vague to establish across-the-board eleventh amendment

abrogation. The only interpretation of the language which

" It is a canon of statutory construction that absurd consequences be avoided

United States v. Bryan, 339 U.S. 323, 338 (1950); United States ». Kirby, 74

U.S. 482, 486 (1869).

makes sense is that it applies to state liability to the federal

government.

Neither the original language of CERCLA nor the new

language of SARA expresses Congress’ intention to abrogate the

eleventh amendment. As was the case in Welch, Atascadero,

Quern, and Employees, there is no mention or discussion of

waiver or nullification of eleventh amendment immunity either

in the statutes themselves or in any relevant legislative history.

In light of all of the important governmental functions which

states perform, it cannot be inferred that Congress meant to

deprive the states of their guaranteed immunity without “in-

dicating in some way by clear language that the constitutional

immunity was swept away.” Employees, 411 U.S. at 285.

2. The court of appeals erred in its conclusion that Con-

gress may unilaterally abrogate eleventh amendment immuni-

ty when acting pursuant to its powers under article I. “[‘|]That

a State may not be sued without its consent is a fundamental

rule of jurisprudence. . . [']” Pennhurst IJ, 465 U.S. at 98

(quoting Ex Parte State of New York No. 1, 256 U.S. 490, 497

(1921)). An exception to this fundamental rule was established

by this Court in Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). Con-

gress, when acting pursuant to section 5 of the fourteenth

amendment, may abrogate the eleventh amendment without

the states’ consent.” This is in recognition of the unique character

of the fourteenth amendment.

The fourteenth amendment clearly contemplates limitations

on a state’s power. /d. at 453-456. By its terms, section | grants

individuals certain protections as against the states. Section 5

“ The only other limited exceptions established by this Court are not relevant

here. See Ex Parte Young, 209 U.S. 123 (1908) (holding eleventh amendment

does not prevent federal courts from granting prospective relief against state

officials to stop violation of federal law); United States v. United States Fidelity

and Guaranty Corp., 309 U.S. 506 (1940) (recognizing a partial implied waiver

of eleventh amendment immunity with respect to certain counterclaims when

a state initiates an action in federal court).

Fourteenth Amendment.” Id. at 456." This principle was reaf-

firmed in Atascadero, 473 U.S. at 238, and again most recently

in Welch, 107 S. Ct. at 2946.

red i its analysis by ignoring significant precedent established

other decisions of this Court. As demonstrated below, in each

case which considered limitations on the eleventh amendment

and twenty-fourth (prohibiting poll taxes) which all 1) grant individuals pro-

tection against the states and 2) grant authority to Congress to enact legisla-

tion to enforce the respective constitutional protections. This Court, however.

has not yet addressed these amendments in the context of the eleventh

amendment

created by the operation of statutes outside the sphere of the

fourteenth amendment, this Court has required the element of

state consent. Specifically, this Court has indicated that limita-

tions on eleventh amendment immunity may be found in these

cases only if Congress has acted in these statutes to induce states

to waive their immunity by their participation in certain ac-

tivities regulated under the statutes. The participation by the

states in these activities might then be interpreted as constituting

an implied waiver of the eleventh amendment if the participa-

tion is voluntary with full knowledge of the consequences. See

Edelman v. Jordan, 415 U.S. at 672.

The theory of implied waiver was first announced by this

Court in Parden v. Terminal R.R. Co., 377 U.S. 184 (1964), which

concerned a statute enacted pursuant to the commerce clause."

Of course, a state does not impliedly waive its immunity simp-

ly by operating in a federally regulated sphere. Congress must

first express itself in “clear language” if it wishes to condition

a state's participation in an activity subject to federal regula-

tion “on the forfeiture of immunity from suit in a federal forum”

Employees, 411 U.S. at 285. Only after such clear expression by

Congress may it then be determined whether the extent of the

state's participation in that activity constitutes an implied waiver

of the eleventh amendment."

* This Court recently in Welch, 107 S. Ct. at 2948, overruled Parden to the

extent that it was “inconsistent with the requirement that an abrogation of

Eleventh Amendment immunity by Congress must be expressed in un-

mistakably clear language =~ Parden continues to stand for the proposition

that. under certain circumstances, Congress may condition state activites upon

waiver of eleventh amendment protections, even though Weich considered the

specific statute in Parden insufficient with respect to the “clear language” stan-

dard. id.

* The state activity at issue in Parden was operation of a railroad for profit.

an activity outside the scope of normal governmental function. 377 US at

195. In contrast, the activity in Em: ‘oyees was the operation of state hospitals.

411 US. at 284. In light of this Court's reluctance to find forfeiture of eleventh

amendment immunity. a states involvement in providing an essential service

Footnote continued

12

The power of Congress to touch the constitutional protections

of the eleventh amendment under the spending clause, US.

Const., art. I, § 8, cl. 1, has also been considered by this Court.

Again, waiver by the states was regarded as a critical element

in determining whether eleventh amendment protections re-

mained available to the states under statutes enacted pursuant

to the spending clause. “The legitimacy of Congress’ power to

(abrogate the eleventh amendment) ... under the spending power

_ .. rests on whether the State voluntarily and knowingly ac-

cepts [those] . . . terms. . . ” Pennhurst State School and Hospital

v. Halderman, 451 U.S. 1, 17 (1981) (Pennhurst I). The “analysis

relevant to Spending Clause enactments,” assuming the “clear

language” test is met, therefore focuses on whether a state by

its participation in a program authorized by Congress has in

effect consented to the abrogation of eleventh amendment im-

munity. Atascadero, 473 U.S. at 246-7, n. 5.

While admitting that this Court has drawn a distinction bet-

ween article I and the fourteenth — Gg aie

j r to abrogate the eleventh amendment, the court 0

ele tanuemastiy donut the distinction as being the level

of clarity required in the language of a statute to demonstrate

the abrogation. It seems to suggest that statutes enacted under

the fourteenth amendment do not require the same unequivocal

language as must be evident in statutes enacted pursuant to ar-

ticle I. The distinction posited by the court below does not ex-

ist. This Court has consistently stated that, even under the four-

teenth amendment, an unequivocal expression of congressional

intent is required. Welch, 107 S. Ct. at 2946; Pennhurst II, 465

US. at 99. Instead, the distinction between abrogation under

article I and the fourteenth amendment is based upon the re-

quirement under article I for some cognizant waiver of eleventh

amendment immunity by a state’s action. The court of appeals

for the public welfare should never be construed as providing the requisite

consent to waiver of the eleventh amendment. Certainly, the activities which

waiver of eleventh amendment protections.

13

attempts to wipe out this requirement and by doing so renders

the eleventh amendment virtually meaningless.

The Court of Appeals for the Ninth Circuit, in its recent deci-

sion in Collins v. Alaska, 823 F.2d 329, 332 (9th Cir. 1987),

recognized Congress’ power to abrogate the eleventh amend-

ment, without consent of the states, when acting pursuant to

the fourteenth amendment. The court also acknowledged Con-

gress’ power to abrogate with respect to other enumerated

powers. This second type of abrogation, however, was found to

require waiver of state immunity, whether actual or implied.

The Collins case was decided ultimately on the question of com-

pliance with the “clear language” rule, which the court of ap-

peals held had not been demonstrated. Although the Ninth Cir-

cuit decision is not in direct conflict with the decision challenged

here, it demonstrates the urgency for this Court to review the

instant matter in order to dispel the confusion that exists.

3. The court of appeals erred in finding that the purported

Congressional abrogation of eleventh amendment immunity in

CERCLA could be applied retroactively. Possibly the most

onerous of the court of appeals’ findings is the one applying the

adjudged abrogation retroactively to completed state activities.

As discussed above, the concepts of state consent and waiver are

fundamental in eleventh amendment analysis. Edelman, 415 U.S.

at 672; Employees, 411 U.S. at 285. “By insisting that Congress

speak with a clear voice” when conditioning state activity upon

waiver of its eleventh amendment immunity, this Court has

“enable[d] the States to exercise their choice knowingly, cogni-

zant of the consequences of their participation.” Pennhurst I,

451 U.S. at 17. “There can, of course, be no knowing acceptance

if a state is unaware” of the abrogation. Id.

The court below found that the 1986 SARA amendments pro-

vided the language in CERCLA to abrogate the eleventh amend- .

ment. The relevant activities of the Commonwealth of Penn-

sylvania were completed several years before enactment of the

amendments. No action on the part of the Commonwealth could

14

constitute implied consent or a knowing waiver of its eleventh

amendment immunity:* To allow such a waiver to be implied

retroactively, or to apply a sweeping abrogation retroactively

without regard for consent either actual or implied, would com-

pletely destroy the constitutional protections this Court has so

carefully preserved.

States are provided by the eleventh amendment with the op-

portunity, free of interference from the federal judiciary, to

establish their own laws and judicial forums to decide issues of

private damages which will affect their treasuries and in turn

their citizens. In view of the important functions performed by

the states for the benefit of their citizens, public policy dictates

that this protection from federal intrusion should not be strip-

ped away silently without the knowledge and consent of the

states.

* As shown in n. 14, supra, “{t]o suggest that the State had the choice of either

ceasing operation of these vital public services or [“Jconsenting{’] to federal suit

suffices. . . to derronstrate that the State had no true choice at all... ”

Employees, 411 U.S. at 296 (Marshall, J., concurring).

15

CONCLUSION

The amici curiae states span the continent. They are large

and small, urban and rural. Together they present the concern

that a refusal by this Court to review the Union Gas decision

would result in the diminution of the states’ eleventh amend-

ment protections and would severely restrict not only the Com-

monwealth of Pennsylvania but all states in essential govern-

mental activities. For this reason and on the basis of all the

arguments set forth above, this Court should grant the petition

for a writ of certiorari.

Dated: New York, New York

February 22, 1988

Respectfully submitted,

Attorneys for Amici Curiae

ROBERT ABRAMS

Attorney General of the

State of New York

O. Perer SHERWOOD

Solicitor General

ELAINE GaiL SUCHMAN*

Assistant Attorney General

Environmental Protection Bureau

120 Broadway

New York, New York 10271

(212) 341-2458

)

*Counsel of Record

Joun K. Van DE Kamp

Attorney General of the

Assistant Attorney General

State Office Building

Room 147

Hartford, Connecticut 06106

(203) 566-7213

Nem, F. HaARTIGAN

Attorney General of the

State of Illinois

ROSALYN KAPLAN

Chief, Civil Appeals Division

100 West Randolph, 12th FI.

Chicago, Illinois 60601

(312) 917-3698

LIn.EY E. PEARSON

Attorney General of the

State of Indiana

Harry JoHN Watson, III

Chief Counsel

219 State House

Indianapolis, Indiana 46204

(317) 232-5666

Hoover Building 2nd Floor

Des Moines, lowa 50319

(515) 281-5351

Baltimore, Maryland 21201

(301) 225-1846

WILLIAM L. WEBSTER

Attorney General of the

State of Missouri

SHELLEY A. Woops

Assistant Attorney General

PO. Box 899

Jefferson City, Missouri 65102

(314) 751-8811

W. Cary Epwarps

Santa Fe, New Mexico 87504

(505) 827-6030

Lacy H. THORNBURG

Attorney General of the

State of North Carolina

P.O. Box 629

Raleigh, North Carolina 27602

(919) 733-3377

17

Rosert H. Henry

Attorney General of the

State of Oklahoma

Sara J. DRAKE

Assistant Attorney General

State Capitol

Room 112

Oklahoma City, Oklahoma

73105

(405) 521-3921

T. Travis MEDLOCK

Attorney General of the

State of South Carolina

Watton J. McC.ovp, III

General Counsel

JACQuELYN S. DickMAN

Assistant General Counsel

South Carolina Dept. of

Health and Environmental

Control

2600 Bull Street

Columbia, South Carolina

29201

(803) 734-4910

Davip L. WILKINSON

Attorney General of the

State of Utah

Frep G. NELSON

Assistant Attorney General

State Capitol Building

Room 124

Salt Lake City, Utah 84114

(801) 538-1017

18

Jerrrey L. AMESTOY

Attorney General of the

State of Vermont

Denise R. JOHNSON

Assistant Attorney General

109 State Street

Montpelier, Vermont 05602

(802) 828-3171

Cuar.es G. BROWN

Attorney General of the

State of West Virginia

C. Witu1aM ULLRICH

First Deputy Attorney General

State Capitol Building

Charleston, West Virginia 25305

(304) 348-2021