# Amicus Curiae Brief — Pennsylvania v. Union Gas Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0641%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 491 U.S. 1 ## Text 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 RF f : fe rll rs i | : | if £8 : é g Lo - qlee Wi ‘| en 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0641%3A04. Public record. Not legal advice.