Petition for Writ of Certiorari — Union Gas Co. v. Pennsylvania
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86-597
No.
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Supreme Court US
FILED
CCT 8 i996
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In the Supreme Court
of the nit
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OCTOBER TERM, 1986
UNION GAS COMPANY, Petitioner
VS.
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6%)
. 4
COMMONWEALTH OF PENNSYLVANIA, Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Re
KOHN,
»bert A. Swift
(Counsel of Record)
SAVETT, KLEIN & GRAF, P.C.
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
Of Counsel:
Charles G. Cole
Stewart Abercrombie Baker
STEPTOE & JOHNSON
1300 Connecticut Avenue
Washington, D.C. 20036
(202) 429-3000
SMITH-EDWARDS-DUNLAP COMPANY, 2867 E: ALLEGHENY AVENUE, PHILADELPHIA, PA 19134 (215) 425-8800
QUESTION PRESENTED
Is the Eleventh Amendment a bar to suit against a state
pursuant to a Federal statute which expressly defines a “person”
subject to suit to include a state?
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 PETITIONER
The following are parent, subsidiary or affiliate companies of
petitioner 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
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CONSTITUTIONAL AND STATUTORY PROVISIONS
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sprog ip gpg | Yaa 2
REASONS FOR GRANTING THE WRIT............ 5
CE Sh oO he wh okis ex ea tN ees Vee E aK Kae Wa 12
APPENDIX
App. A: Third Circuit Opinion, June 10, 1986 ... — A-1
App. B: District Court Opinion dismissing Peti-
tioners Third-Party Complaint, Novem-
I ete emo nicn ue nua a A-35
App. C: District Court Order dismissing Peti-
tioners Amended Third-Party Complaint,
ee ee errr rrr rere A-45
App. D: Justice Brennan's Order extending the
time for filing this Petition, August 27,
ERR EROS Bi EES ea AP Sere A-47
TABLE OF AUTHORITIES
CASES Page
Aloha Airlines v. Director of Taxation, 464 U.S. 7, 12(1983) 6
Atascadero State Hospital v. Scanlon, 105 S.Ct. 3142,
rer ree ye rere eA 6, 7,9
Consumer Product Safety Commission v. GTE Sylvania,
SOT U.S. SE, DOG é vain bk cas 6d cawadcasaas 6
David D. v. Dartmouth School Committee, 775 F.2d 411
(308 Cie: Ee vos cn ok pinata a eee 7
Employees of Department of Public Health and Welfare v.
Missouri Department of Public Health and Welfare,
443 U3. Gr Ge Clee oe vids tose eee tenes
Exxon Corporation v. Hunt, 106 S.Ct. 1103, 1112-13 (1986)
Hans v. Louisiana, 134 U.S. 1 (1980) ..................
Hutto v. Finney, 437 U.S. 678, 706 (1978) .............. *
Midlantic National Bank v. New Jersey Department of En-
vironmental Protection, 106 S.Ct. 755, 762 (1986) ...
New York v. Shore Realty Corp., 759 F.2d 1032 (2nd Cir.
BO 5 nc vay 666d hs Lee es Se eee eee 1]
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un
OTHER AUTHORITIES
United States Constitution, Amendment XI ............ 2
United States Code
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33 U.S.C. SGRSRNNS) and GY) 6... i cece:
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TABLE OF AUTHORITIES—(Continued)
ITHER AUTHORITIES Page
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OCTOBER TERM, 1986
No.
UNION GAS COMPANY, Petitioner
vs.
COMMONWEALTH OF PENNSYLVANIA, Respondent
PETITION FOR WRIT OF CER1IORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
CITATIONS TO OPINIONS
The Opinion of the United States Court of Appeals for the
Third Circuit, which appears in the Appendix, is reported at 792
F.2d 372 (1986). The Opinion of the United States District Court
for the Eastern District of Pennsylvania dismissing the third
party complaint as to the Commonwealth, which also-appears in
the Appendix, is reported at 575 F.Supp. 949 (1983). That
Court's order dismissing the amended third party complaint as
to the Commonwealth is in the Appendix but is not reported.
JURISDICTION
The judgment of the Court of Appeals (App. at A-1) was
entered on June.10, 1986. On August 27, 1986, Justice Brennan
extended the time for filing this petition to October 8, 1986
(App. at A-47). Jurisdiction of this Court is invoked under 28
U.S.C. §1254(i).
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 hody;”
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
plan....
STATEMENT OF THE CASE
Congress enacted the Comprehensive Environmental Re-
sponse, Compensation and Liability Act in 1980 to secure the
prompt cleanup of the nation’s pollution sites on a comprehen-
sive basis. CERCLA’s purpose is to obtain voluntary compliance
with cleanup objectives and, failing that, to authorize the United
States Environmental Protection Agency (“EPA”) to accomplish
the cleanup. Initial funding to the EPA or private parties is
available through Superfund for certain sites. Importantly,
CERCLA imposes retroactive strict liability on all owners and
3
operators of pollution sites without exception as to their private
or governmental status. 42 U.S.C. §9607(a).
This case raises a question of central importance in the
administration of CERCLA—whether a private person who has
paid the costs of cleaning up a designated pollution site for which
a state is partially responsible may recover contribution from the
state under the strict liability provisions of the statute. Under
the facts as alleged in petitioner's third party complaint, the
State of Pennsylvania was an owner and operator of a portion of
the Stroudsburg, Pennsylvania pollution site. Although the stat-
ute specifically defines a “person” subject to suit under
CERCLA as including a “State,” the courts below held re-
spondent Commonwealth of Pennsylvania immune from suit
under the Eleventh Amendment.
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 petitioner 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 a dike on its sides.
The Borough and later the State obtained a permanent easement
or fee title to much of the site. The rechannelization of this fast
flowing stream started a process of downcutting 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 1981 and January 1982, the
United States did a cleanup of the site at an alleged expense of
$967,000.00.
The United States commenced this lawsuit on May 23, 1983
4
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 (f)(2),
naming petitioner as the sole defendant. Petitioner filed a third-
party complaint naming the Commonwealth of Pennsylvania 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 un-
der 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 (App. at A-35). Thereafter, the United States filed
an amended complaint revising its damage claim, and petitioner
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. (App. at A-45)
As the result of a settkement reached among the United
States, petitioner and the Borough of Stroudsburg whereby
petitioner paid a major portion of the cost of cleanup, the district
Court dismissed the action. Petitioner then appealed the district
court's dismissal of the State 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 Court’s order reasoning
that the language of the statute was sufficiently clear and finding
a lack of “overwhelming evidence of congressional intent” to
abrogate the State's immunity.
The Honorable A. Leon Higginbotham filed a vigorous
dissent, accusing the majority of disregarding CERCLA’s ex-
plicit language by “assum|[ing] that judges have a better mastery
and understanding of the English language than does Congress’
and “roam[ing] through inconclusive legislative history to ‘dem-
onstrate’ that Congress did not mean state when they included
that specific phrase in the key definitional section of the statute.”
(App. at A-22) Finding no ambiguity in CERCLA’s language and
no contrary legislative intent, Judge Higginbotham would have
5
held that the statute clearly abrogated states Eleventh Amend-
ment immunity. (App. at A-30)
REASONS WHY THE QUESTION
PRESENTED IS SUBSTANTIAL
I
This Case Raises An Important Issue
As To The Standard For Interpreting
A Statute Under The Eleventh Amendment
Prior to passing CERCLA in December 1980, Congress
approved three piecemeal attempts to clean up pollution sites:
the Clean Air Act, the Clean Water Act and the Resource
Conservation and Recovery Act. 42 U.S.C. §7401 et seq.; 33
U.S.C. §1251 et seq.; 42 U.S.C. §3251 et seg. This statutory
patchwork quilt neither separately nor together gave focus or
muscle to a national cleanup policy. Importantly, each specifi-
cally preserved the states’ Eleventh Amendment immunity. See
42 U.S.C. §7604; 33 U.S.C. $1365; 42 U.S.C. §6967.
CERCLA, with its retroactive strict liability and elimination
of minimum quantities of disposed pollutants, represented a
radical departure from prior law. CERCLA was intended as a
comprehensive approach to the cleanup of the nation’s pollution
sites amid congressional apprehension of a pollution crisis. See
Midlantic National Bank v. New Jersey Department of Environ-
mental Protection, 106 S.Ct. 755, 762 (1986). While Congress
was divided as to the contents of such a comprehensive law,
Exxon Corporation v. Hunt, 106 S.Ct. 1103, 1112-13 (1986),
there was never any dispute that the law should apply to govern-
mental entities. The final version included “United States Gov-
ernment, State, municipality, commission, political subdivision -
of a State or any interstate body” (emphasis added) in the defini-
tion of a “person” who could be sued. The United States’ own
abandonment of sovereign immunity in a statute imposing strict
liability is a gauge of the extent of the congressional commitment
that no one should be immune.
The language of CERCLA explicitly and unambiguously
authorizes suits against states, thereby abrogating states’ Elev-
6
enth Amendment immunity. The term “person” is defined in
the statute to include a “state,” and a “person” may sue or be
sued for the recoupment of cleanup costs. Where statutory
language is clear and unambiguous, and there are no “clearly
expressed legislative intentions to the contrary, that language
must ordinarily be regarded as conclusive.” Consumer Product
Safety Commission v. GTE Sylvania, 447 U.S. 102, 108 (1983). A
court need not and will not look behind a statute's plain, unam-
biguous language to interpret it. Aloha Airlines v. Director of
Taxation, 464 U.S. 7, 12 (1983).
Despite what appeared to be a clear statutory definition of
the persons liable under the statute, the courts below held that
Congress had not intended to compel a waiver of the states’
Eleventh Amendment immunity. The Third Circuit conceded
that there was no legislative history at all dealing with the
Eleventh Amendment issue. Thus, as the dissent points out, this
case raises a basic question of Eleventh Amendment jurispru-
dence: whether Congress may evidence its intent to make states
liable to Federal suit through a standard legislative means—
defining states as persons subject to liability—or must make
some further statement or create some additional legislative
history in order to confirm its intent.
The Third Circuit's holding that there must be “overwhelm-
ing evidence of congressional intent” to abrogate state immunity,
is inconsistent with this Court's decision in Atascadero State
Hospital v. Scanlon, 105 S.Ct. 3142 (1985). The plaintiff in
Atascadero sought money damages from a state hospital under
§504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 (1982),
which gave a cause of action against “any recipient of federal
assistance.” This Court held that such a “general authorization
for suit in federal court is not the kind of unequivocal statutory
language sufficient to abrogate the Eleventh Amendment.”
Atascadero, 105 $.Ct. at 3149. In contrast to the Rehabilitation
Act of 1973, CERCLA’s permission to sue “persons,” defined to
include states, was not a general authorization but rather the
unequivocal authority this Court found wanting in Atascadero.
The omission of congressional debate as to abrogation of
state immunity is superfluous where the statute itself is explicit.
7
Certainly there is nothing in Atascadero which requires Con-
gress to explain in its debates and reports that which Congress
has made explicit in a statute. Quite the contrary, Atascadero
requires that Congress make its intent clear “in the language of
the statute itself” 105 S.Ct. at 3148.
The Third Circuit was evidently led astray by the tension
between Atascadero and Hutto v. Finney, 437 U.S. 678 (1978).
At issue in Hutto was whether the Civil Rights Attorney's Fees
Awards Act, 42 U.S.C. §1988, abrogated states’ Eleventh
Amendment immunity where the act did not even refer to states
in its language. The Court held there was abrogation because of
the overwhelming evidence of legislative intent gleaned from
the Act’s purpose and history; four dissenting Justices argued
that “we should not permit items of legislative history to sub-
stitute for explicit statutory language.’ 437 U.S. at 706. In
Atascadero, however, the majority looked solely to the language
of the statute itself and did not even mention the legislative
history.
The Third Circuit seems to have resolved this tension by
concluding that the Eleventh Amendment may only be waived
when Congress provides both explicit statutory language and
overwhelming legislative history. This is plainly error. As Judge
Higginbotham pointed out in dissent, “in matters of statutory
construction of legislation that is as explicit as the statute in
issue, no other court has imposed as broad a reading of eleventh
amendment prohibitions.” (App. A at page 22).
More importantly, the Third Circuit's opinion illustrates the
divergent approaches taken by the lower courts in reconciling
Atascadero and Hutto. At the other end of the pole are cases
such as David D. v. Dartmouth School Committee, 775 F.2d 411
(1st Cir. 1985), cert. denied, 54 U.S.L.W. 3716 (1986), in which
the First Circuit held that the Atascadero standard could be met
by a combination of legislative history, a reference in the pream-
ble to “equal protection of the laws,” and the structure of the
statute. In light of the confusion engendered by prior decisions,
this case provides a logical opportunity to clarify the respective
roles of language and legislative history in effectuating a waiver
of the states immunity.
8
The result in this case is not controlled by this Court's
decision in Employees of Department of Public Health and Wel-
fare v. Missouri Department of Public Health and Welfare, 411
U.S. 279 (1972). Employees involved a suit by a state hospital
employee to recover wages under the Fair Labor Standards Act.
As enacted in 1938, the FLSA made employers liable to employ-
ees for double damages for unpaid minimum wages or overtime
compensation. A separate section defined “employer” but ex-
pressly exempted the United States and states. The definition
was amended in 1966 to provide an exception to the exemption
for state employees employed in a hospital, institution or school.
This Court found insufficient basis in the amendment or its
legislative history to indicate a congressional intent to abrogate
state immunity. Importantly, this Court reasoned that Congress
would have amended the liability section of the FLSA had it
intended to abrogate state immunity and subject states to double
damages. Employees, 411 U.S. at 285. CERCLA, in contrast to
the FLSA, contains definition and liability sections that were
enacted together, not 28 years apart, and a private party may not
recover punitive damages.
The Employees decision is distinguishable for other reasons
too. The FLSA had a considerable history of state immunity and
the general grant of immunity was retained in the definitional
section even after the 1966 amendment. By contrast with the
FLSA, neither CERCLA or its legislative history intimates state
immunity. In Employees, this Court observed that since the
United States was authorized to bring suit on state workers’
behalf, the workers’ rights would be protected under the FLSA.
Under CERCLA there is no federal protection for a private party
seeking recoupment of cleanup costs against a state if the Third
Circuit's decision stands. Finally, under the FLSA states play no
role in the statutory scheme whereas state participation is intrin-
sic to CERCLA’ statutory scheme.
In summary, this case raises a basic question concernirfg the
nature of legislative statement in the Eleventh Amendment con-
text; can Congress words be taken at face value, or must there
be some additional statement in the statute or the legislative
history confirming congressional intent? As the dissent points
9
out, the approach taken by the court below makes legislative
action problematical:
As judges, we must never forget the complexity and the
time constraints of the federal legislative process. Legisla-
tors do not have the time or the capacity to anticipate every
possible argument that might be made subsequently by
creative and clever counsel. They need not thwart every
potential argument in the womb of time by writing volumes
of legislative history which say no more than the legislature
meant what they said in the statute.
(App. at A-29). The diverse standards spawned by Atascadero
and Hutto have already been described. This is not an area of the
law that can tolerate such diversity. Congress needs to know
precisely what it must say when it wishes to abrogate the states’
immunity. This case provides an ideal vehicle for illuminating
the requirements of clear statement in the Eleventh Amend-
ment context.
Finally, petitioner submits that the rule of Hans v. Loui-
siana, 134 U.S. 1 (1980), which extends the Eleventh Amend-
ment to federal question cases, should be icconsidered and
overruled. The Eleventh Amendment was intended to give
states immunity only in federal suits founded on diversity juris-
diction. Atascadero, supra. (J. Brennan, dissenting). By extend-
ing Eleventh Amendment immunity beyond its literal meaning,
this Court has unconstitutionally circumscribed its jurisdiction
over states in federal question cases.
I
The Lower Court's Decision Undermines
The Purpose And Effectiveness Of An
Important Environmental Statute
At the same time that it poses a question of central impor-
tance in Eleventh Amendment jurisprudence, this case has
broad practical implications for the administration of CERCLA
and for the nation’s environmental program. States are involved
in many of the identified pollution sites around the country.
States own substantial amounts of property including waste and
10
disposal sites, and are generators and disposers of substantial
quantities of wastes. States and local governments have for de-
cades played a major role in managing the disposal of hazardous
substances and, thus, states have often been the operators or
owners of such sites. Congress was well aware of this. See, e.g.,
42 U.S.C. §9604(c)(3) (special contribution rule for state owned
sites).
Some of these sites are infamous. For example, California
owns the Stringfellow site in Glen Avon Heights, California,
which covers a 22 acre area where an estimated 34 million
gallons of liquid wastes were dumped into surface impound-
ments and have contaminated surface and groundwater runoff.
Texas owns a 15 acre abandoned waste pit in Crosby, Texas in the
San Jacinto River flood plain where over 33 million gallons of
liquid industrial wastes were disposed. In Pennsylvania, a foul-
smelling sulfurous black liquid discharging from an abandoned
gas well is threatening use of the Presque Isle State Park, a major
recreational area on Lake Erie. See EPA's National Priorities
List, 51 Fed. Reg. 21099 (June 10, 1986).
In these and other similar situations in which state liability
is likely to be identified in the future, the ruling of the court
below threatens to disrupt a carefully crafted legislative scheme.
Congress sought not only to require cleanup, but also to dis-
tribute the enormous costs of cleanup among all those responsi-
ble over the course of many decades. In a rare departure for
federal legislation, it specifically addressed the problem of con-
tribution liability and held all persons—including the federal
government—liable for contribution to the person undertaking
cleanup. The decision below, by disregarding Congress clear
definition of “person,” creates a unique and anomalous excep-
tion from liability for states, thereby forcing all other parties to
bear more than their fair shares.
Moreover, the decision below threatens to undermine a
major objective of CERCLA—the encouragement of voluntary
participation in the cleanup of pollution sites. The statute and its
legislative history emphasize the need for voluntary cleanup.
See, e.g., 42 U.S.C. §9612(a); H. Rep. No. 96-1016, Part I, 96th
Cong., 2d Sess. 5, reprinted in 1980 U.S. Code Cong. & Ad
11
News 6119, 6120 (purpose of bill is to “induce such persons
voluntarily to pursue appropriate environmental response ac-
tions’). However, the decision below creates a powerful disin-
centive to any cleanup efforts by private parties. Whenever a
state is arguably responsible for some portion of the cleanup
costs under the statute, a private party is much better off taking
no action at all, in the hope that the United States will clean up
the site and seek reimbursement from the State. In that way a
private party will not be left, as petitioner was here, paying the
state's share of cleanup costs. By the same token, states will have
every incentive to resist participating in any voluntary cleanup in
the hope that private parties will do the job and be unable to
recoup any part of the cost from the state.
The Third Circuit's decision that states are immune from
liability for cleanup costs creates a yawning gap in Congress’
comprehensive plan to clean up this nation’s waste sites by
exempting the states from CERCLA liability. States can use the
statute as a sword to recover cleanup costs as well as a shield
against liability for their acts in causing the release of pollutants.
States have filed suit to recover cleanup costs under Section 107
of CERCLA by virtue of their inclusion in the definition of
“person” in CERCLA. See, e.g., New York v. Shore Realty
Corp.,, 759 F.2d 1032 (2nd Cir. 1985). If a state chooses not to
act to clean up or contribute to the cleanup of a pollution site,
there is nothing a private party can do under the Third Circuit
decision. Thus, the Third Circuit decision foils the statutory
purpose of voluntary cleanup whenever a state is involved.
The question of state liability for cleanup costs will recur
again and again because of the states’ role as owners of contami-
nated sites and generators of waste. The Third Circuit's decision
undermines the statutory purpose of this country’s principal
environmental law whose goal—as stated in the first word of its
title—is to be comprehensive. Whatever may be inferred from
the adumbrated legislative history of CERCLA, there is no
evidence of congressional intent to leave cleanup of state owned
poilution sites to the benevolence of the states or to make third
parties responsible for cleaning up pollution caused by states.
12
CONCLUSION
For all the foregoing reasons, petitioner respectfully urges
this Court to grant this petition for writ of certiorari.
Respectfully submitted,
Robert A. Swift
(Counsel of Record)
KOHN, SAVETT, KLEIN & GRAF, P.C.
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
Of Counsel:
Charles G. Cole
Stewart Abercrombie Baker
STEPTOE & JOHNSON
1300 Connecticut Avenue
Washington, D.C. 20036
(202) 429-3000
A-]
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 85-1177
UNITED STATES OF AMERICA,
V.
UNION GAS COMPANY,
v.
COMMONWEALTH OF PENNSYLVANIA
and THE BOROUGH OF STROUDSBURG
UNION GAS COMPANY,
Appellant
On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
(D.C. Civ. No. 83-2456)
Argued January 7, 1986
Before: WEIS, HIGGINBOTHAM, BECKER,
Circuit Judges
(Filed JUNE 10, 1986)
DAVID H. MARION (Argued)
ROBERT A. SWIFT
Kohn, Savett, Marion & Graf
2400 One Reading Center
1101 Market Street
Philadelphia. PA 9107
A-2
LAWRENCE A. DEMASE
BENJAMIN F. WILSON
Rose, Schmidt, Chapman, Duff &
Hasley
900 Oliver Building
Pittsburgh, PA 15222-5369
Attorneys for Appellant
LEROY S. ZIMMERMAN
Attorney General
MAURA A. JOHNSTON
Deputy Attorney General
ANDREW S. GORDON
Senior Deputy Attorney General
ALLEN C. WARSHAW (Argued)
Chief Deputy Attorney General
Chief, Litigation Section
Office of Attorney General
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Attorneys for Appellee
OPINION OF THE COURT
BECKER, Circuit Judge.
This appeal presents a single question: whether the
eleventh amendment bars defendant-third party
plaintiff Union Gas Company from suing the state of
Pennsylvania for monetary damages in an action
arising under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA.
or Superfund), 42 U.S.C. § 9601 et seq. (1982). The
district court held that the eleventh amendment was a
bar to suit and dismissed Union Gas’ claim against the
state. We affirm.
A-3
I. THE FACTS
The relevant facts can be summarized quite briefly.
Predecessors of Union Gas Company owned and
operated a carburetted water gas plant proximate to
Brodhead Creek in Stroudsburg, Pennsylvania.
between 1890 and 1948, after which the plant was
dismantled. In 1953 and 1970, Union Gas sold part of
its land near the creek to Pennsylvania Power and Light
Company. which in turn granted easements over the
land to the Borough of Stroudsburg. In 1955. due to
flooding. the state and the borough. together with the
Army Corps of Engineers. dug levees, erected dikes.
narrowed and deepened the creek, and redirected its
flow. In early 1980, the borough assigned its
easements to the state.
On October 7, 1980, the state was excavating at
the creek when it struck a large deposit of coal tar that
began to seep into Brodhead Creek. Alerted to the coal
tar seepage, the Environmental Protection Agency
(EPA) asserted that the coal tar was a hazardous
substance and ordered the site be cleaned up.' The
state of Pennsylvania jointly with the federal
government undertook, inter alia, to dredge the back
channel of Brodhead Creek, install a slurry wall to
prevent further coal tar seepage, and clean up the coal
tar that had already seeped into the water. The federal
government reimbursed the state for all its costs,
expending approximately $720,000 in total.
Il. INSTITUTION OF THIS SUIT
The United States brought suit in the district
court for the Eastern District of Pennsylvania against
Union Gas under CERCLA 88 104, 107 (42 U.S.C.
§8 9604, 9607) for recoupment of costs of $450,000
l. Brodhead Creek thus had the dubious distinction of being
the first Superfund site in the nation.
A-4
incurred in cleaning up the spill at Brodhead Creek.’
The United States claimed that the coal tar had been
deposited into the ground near Brodhead Creek by
Union Gas and its predecessors, as a by-produtt ef
their carburetted water gas processing, and that Union
Gas was consequently liable for the clean up costs.
Union Gas answered the complaint, denying any
liability. and filed a third-party complaint pursuant to
Fed. R. Civ. P. 14, naming Pennsylvania and the
Borough of Stroudsburg as third-party defendants.
Union Gas alleged that the state and its political
subdivision had “negligently caused, or contributed to.
the discharge of coal tar into Brodhead Creek” by their
recent excavation and earlier construction of dikes and
levees, and therefore that they should pay for the clean
up.
The state, believing that the eleventh amendment
barred Union Gas’ suit against it, responded with
motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1)
and 12(b)(6).* The district court granted the state's
motion. United States v. Union Gas Co., 575 F. Supp.
949 (E.D. Pa. 1983). Shortly thereafter. the United
States filed an amended complaint, virtually identical
to its original complaint but with revised damage
2. The United States also sought damages of $270,000 under
the Federal Water Pollution Control Act. 33 U.S.C.
§§ 1321(b)(3) and (f)(2)(1982). Union Gas did not file a
third-party claim with respect to these damages. however.
and so they are irrelevant to this appeal.
3. Independent local political subdivisions are generally not
entitled to immunity. although they may. in some
circumstances, be considered arms of the state and thus
derive the state's eleventh amendment immunity. See Laje v.
R.E. Thomason General Hospital, 665 F.2d 724. 727 (5th
Cir. 1982). Because Stroudsburg did not raise an eleventh
amendment defense below. and did not appear on this
appeal, we reach no decision as to whether the eleventh
amendment immunity would extend to Stroudsburg.
A-5
figures alleging that the United States had spent
$1,400.000 on the clean-up, of which $720,000 was
collectible from Union Gas under CERCLA. Union Gas
answered and filed an amended third-party claim
against the state and borough. The state again moved
to dismiss, and the court granted the state's motion
“for the reasons set forth in [575 F. Supp. 949].”
Approximately five months after the court's
dismissal of Union Gas’ amended third-party claim, the
court dismissed the federal government's action
against Union Gas pursuant to Rule 23(b) of the Local
Rules of Civil Procedure of the Eastern District of
Pennsylvania on the understanding that the United
States and Union Gas had reached a settlement. Union
Gas then appealed, citing as error the district court's
denial of its motion to join the state as a party.
The issue before us involves a question of law, and
therefore our review is plenary.
Ill. ABROGATION OF ELEVENTH AMENDMENT
IMMUNITY
The eleventh amendment states that:
The Judicial Power of the United States shall not
be construed to extend to any suit in law or
equity. commenced or prosecuted against one of
the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. Although not apparent on its
face, the eleventh amendment has been interpreted as
a grant of sovereign immunity to the states in federal
court.* Pennhurst State School & Hospital v.
4. The amendment does not speak about the amenability of
states to suits in state court. When we speak in this opinion
of ‘states’ sovereign immunity.” we refer only to their
immunity from suit in federal court derived from the eleventh
amendment.
A-6
Halderman, 465 U.S. 89 (1984): Edelman v. Jordan,
415 U.S. 651 (1974): Hans v. Louisiana, 134 U.S. 1
(1890). But see Green v. Mansour, _—_ U.S. —_. 106S.
Ct. 423, 431 (1985) (Brennan, J.. dissenting) (“the
Amendment was intended simply to remove federal
court jurisdiction over suits against a State where the
basis for jurisdiction was that the plaintiff was a
citizen of another State or an alien”): Atascadero State
Hospital v. Scanlon, 105 S. Ct. 3142. 3156-78 (1985)
(Brennan. J., dissenting) (detailing history of the
amendment to support the same conclusion): Gibbons.
The Eleventh Amendment and State Sovereign
Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889
(1983) (same); Shapiro, Wrong Turns: The Eleventh
Amend ment and the Pennhurst Case, 98 Harv. L. Rev.
61, 67-71 (1984). The immunity can be avoided in only
two ways: (a) Congress can abrogate it by providing
through statute for suits against states, or (b) states
can waive their sovereign immunity and consent to be
sued. We are concerned here only with whether
CERCLA abrogated Pennsylvania's immunity.*
5. Union Gas also claims that Pennsylvania waived its
immunity, but this claim is patently without merit and the
district court did not even consider it. United States v.
Union Gas, supra. 575 F. Supp. at 950. Union Gas alleges
that Pennsylvania consented to suit by (a) owning and
operating a site where hazardous wastes were stored. and (b)
participating with the federal government in the clean-up
effort. Leaving aside the fact that Pennsylvania most likely
did not know of the coal tar in the bed of Brodhead Creek and
so cannot be said to have consented to anything by its
purchases of property, Pennsylvania's purchase and
clean-up efforts are not sufficiently emphatic to constitute a
constructive waiver of its constitutional right. It would be
unreasonable to infer from Pennsylvania's actions that it had
waived one of its most important and longstanding
constitutional rights. Cf. Edelman v. Jordan, 415 U.S. 651.
673 (1974) (“Constructive consent is not a doctrine
commonly associated with the surrender of constitutional
A-7
The Supreme Court has noted the eleventh
amendment’s importance in maintaining the balance
of power between state and federal interests. See, e.g.,
Atascadero, supra, 105 S. Ct. at 3147-48; Pennhurst,
supra, 465 U.S. at 99. Because this balance is central
to our system of federalism, the Court has been
reluctant to infer abrogation of the eleventh
amendment by a federal statute that could be
otherwise interpreted. In Pennhurst, for example, the
Court required ‘an unequivocal expression of
congressional intent to ‘overturn the constitutionally
guaranteed immunity of the several States.'” 465 U.S.
at 99 (quoting Quern v. Jordan, 440 U.S. 332, 342
(1979)). In the recent Atascadero case, the Court held
that “Congress must express its intention to abrogate
the Eleventh Amendment in unmistakable language in
the statute itself.” 105 S. Ct. at 3148 (footnote
rights, and we see no place for it here.”); Great Northern Life
Insurance Co. v. Read. 322 U.S. 47. 54 (1944): Murray v.
Wilson Distilling Co.. 213 U.S. 151. 171 (1909). See
generally Tribe, Intergovernmental Immunities in
Litigation. Taxation. and Regulation: Separation of Powers
Issues in Controversies About Federalism, 89 Harv. L. Rev.
682. 695 (1976) (suggesting that courts require a definitive
action by states before finding waiver of sovereign
immunity).
Moreover. there is a bootstrap quality to Union Gas’
argument that merely by aiding in the clean-up effort
Pennsylvania waived its immunity. Stripped to its essence.
Union Gas is arguing that waiver is a condition precedent to
participation in the clean-up. But because participation is
expressly allowed by statute. 42 U.S.C. § 9604(d)(1). the
imposition of the condition must be found in CERCLA itself.
Thus. Union Gas’ waiver argument depends upon its
interpretation of CERCLA -- i.e., it is an argument of
abrogation. not waiver. As such the argument is
superfluous, for if the abrogation argument works. then the
waiver argument is irrelevant, and if the abrogation
argument fails, then so does the waiver argument.
A-8
omitted). See also Edelman v. Jordan, 415 U.S. 651
(1974).
Even a statute whose natural reading would allow
for suits against the state -- indeed a statute for which
any other reading may be awkward -- may not suffice.
The Court has insisted that the statute. when read
literally, not merely allow suits against the state, but
that it do so with such specificity that it is clear that
Congress consciously and directly focused on the issue
of state sovereign immunity and chose to abrogate it.®
Cf. Hutto v. Finney. 437 U.S. 678. 706 (1978) (Powell.
J.. concurring in part and dissenting in part) (“The
Court should be ‘hesitant to presume congressional
awareness’ of Eleventh Amendment consequences of a
statute that does not make express provision for
monetary recovery against the States.”) (quoting SEC
v. Sloan, 436 U.S. 103, 121 (1978)).’
Two cases in particular illustrate the Court's
insistence on overwhelming evidence of congressional
intent. In Employees of Dept. of Pub. Health &
Welfare v. Missouri Dept. of Pub. Health & Welfare.
411 U.S. 279 (1972), employees of a state hospital sued
for overtime pay that they claimed they were entitled to
under the Fair Labor Standards Act (FLSA). One
section of the FLSA gave employees whose employers
were covered by the FLSA a right of action against the
employers to enforce the FLSA’s terms. Another section
had recently been amended explicitly to include state
hospitals in the class of employers regulated by the
FLSA. Although these two sections appeared to allow
for a suit against state governments in federal court.
6. Because abrogation requires a showing of “plain intent”
rather than merely “plain meaning.” the dissent's focus on
CERCLA's “plain meaning” misses the mark.
7. Justice Powell wrote for the majority in Atascadero.
discussed infra.
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the Court found no abrogation of the State’s immunity
because there was no evidence of congressional intent
on the specific issue of sovereign immunity. Id. at
284-85. It was also significant. the Court noted, that
there was a plausible interpretation of the amended
section that did not require abrogation of the eleventh
amendment, according to which the section
empowered the Secretary of Labor to sue the state on
the workers’ behalf. Id. at 285-86.
The second illustrative case, Atascadero. supra,
involved § 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (1982), which conferred a right of action
upon handicapped people who were discriminated
against by “any recipient of federal assistance.” A
plaintiff sought damages from a state hospital that
received federal financial assistance, but the Court
held that the inclusive language of the Rehabilitation
Act notwithstanding, the eleventh amendment barred
the suit:
The statute thus provides remedies for
violations of § 504 by “any recipient of federal
assistance.” There is no claim here that the State
of California is not a recipient of federal aid
under the statute. But given their constitutional
role. the States are uot like any other class of
recipients of federal aid. A general authorization
for suit in federal court is not the kind of
unequivocal statutory language sufficient to
abrogate the Eleventh Amendment. When
Congress chooses to subject the States to federal
jurisdiction, it must do so specifically.
105 S. Ct. at 3149 (emphasis added) (footnote
omitted).
One other case deserves special mention. In Hutto
v. Finney. 437 U.S. 678 (1978), the Supreme Court
held that the Civil Rights Attorney's Fees Awards Act,
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42 U.S.C. § 1988 (1982), abrogated the eleventh
amendment, thus permitting successful claimants
against the state to receive attorneys’ fees, even though
the relevant statutory language was quite general and
referred to neither the eleventh amendment nor suits
against states. The Court relied on several factors,
most significantly § 1988's extensive legislative
history. The Court observed that both the House and
Senate Reports explicitly endorsed the payment of
attorneys’ fees by states.” see Hutto, 437 U.S. at 694,
and that two attempts to amend the Act to immunize
state and local governments from awards had been
defeated. Id. The Court concluded that this evidence
provided the requisite “formal indication of
Congresslional] intent to abrogate States’ Eleventh
Amendment immunity.” id. at 697 n.27. and that it
would be irresponsible to refuse to read § 1988 as an
abrogation of immunity. id. at 694. The Court was
further influenced by the fact that because § 1988
“primarily applies to laws passed specifically to restrain
state action,” allowing the eleventh amendment to bar
§ 1988 suits would rob § 1988 of much of its force. Id.
at 693-94. Finally, the Court noted the special nature
of attorney's fees as costs of litigation, and thus within
the traditional power and discretion of the judiciary.
Id. at 696, 697 n.27.
There is some question whether Hutto stands in
the wake of Atascadero’s explicit holding that
8. The Senate Report said that “[i]t is intended that the
attorneys’ fees, like other items of costs. will be collected
either directly from the official. ... or from the State.” S.
Rep. No. 94-1011. p. 5 (1976) (footnotes omitted), [1976]
U.S. CODE CONG. & AD. NEWS 5908, 5913 (quoted in
Hutto, 437 U.S. at 694). The House Report was even more
direct: “Of course. the 11th Amendment is not a bar to the
awarding of counsel fees against state governments.”
H.R.Rep. No, 94-1558. p. 7 n. 14 (1976) (quoted in Hutto. 437
U.S. at 694).
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“unmistakable language in the statute itself’ is the
sine qua non of abrogation. The Atascadero Court did
not overturn Hutto, however, and.so we believe that it
retains its precedential value. Hutto demonstrates that
although a court may interpret a statute to abrogate
states’ eleventh amendment immunity even in the
absence of explicit statutory language to that effect, the
evidence in favor of such an interpretation must be
virtually overwhelming. This insistance on
overwhelming evidence is only intensified by
Atascadero.” |
9. In Parden v. Terminal Ry. Co.. 377 U.S. 184 (1964), the
Supreme Court held that a state that ran a railroad for profit
was liable to its employees under the Federal Employers’
Liability Act although that act had no mention of the eleventh
amendment and its legislative history was sparse. Parden
would thus seem to imply a lesser standard of proof for
abrogation than that required by Hutto. and Union Gas relies
upon it. The reliance is misplaced, for Parden has been
limited to instances in which the state is engaged in a
for-profit enterprise. See Employees. supra, 411 U.S. at 285.
Union Gas has not suggested that Pennsylvania was engaged
in such an enterprise here, and therefore Parden would
appear to be inapposite.
Moreover. as Professor Tribe noted in 1976, the
philosophy underlying Parden shifted significantly in the
years following it. making abrogation more difficult:
In the decade between Parden and Edelman [v.
Jordan. 415 U.S. 651 (1974)]. the Supreme Court's
stance on the eleventh amendment has significantly
shifted. Parden would make states amenable to suit in
federal court whenever they undertake an activity for
which a private person could potentially be held liable
under a valid federal law. The Parden majority thus
posited no distinction between the states and other
entities that might be regulated by federal legislation.
Employees and Edelman, on the other hand,
understand states to be distinguished from other
entities by federalism considerations. For this reason.
the amenability of states to suit must be specifically
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This brief review provides the background for our
consideration of whether CERCLA may be interpreted
to abrogate the eleventh amendment.
IV. CERCLA AND THE ELEVENTH AMENDMENT
CERCLA, Pub. L. No. 96-510, 94 Stat. 2767
(codified in 42 U.S.C. 88 9601-15, 9631-36, 9641,
9651-53, 9654-56. 6911-11A. 6957. and various
sections of titles 26, 33 and 49). was a bold effort to
meet the threat to the public health and environment
posed by inactive hazardous waste sites. See H.R. Rep.
No. 1016, PT. I, 96th Cong., 2d Sess. (1980), reprinted
in[1980] U.S. Code Cong. & Ad. News 6119; S. Rep. No.
838, 96th Cong.. 2d Sess. (1980).'” We shall not
canvass the full scope of that effort: we will instead
review those provisions of CERCLA that are directly
relevant to Union Gas’ claim that CERCLA manifests
Congress’ intent to abrogate states’ eleventh
amendment immunity.
addressed by federal legislation, and Congress must
make its intention to treat states like private parties
unmistakably clear. This policy of clear statement had
been rejected by the Parden majority. but ..
eventually prevailed.
Tribe, supra, at 690-91 (footnotes omitted). See also Welch
v. State Dept. of Highways & Pub. Trans.. 780 F.2d 1268.
1270-73 (Sth Cir. 1986) (en banc) (discussing developments
in the jurisprudence since Parden). lhe years since
Professor Tribe wrote have only confirmed and deepened the
change in attitude that he identified.
10. The legislative history of CERCLA is exceedingly complicated
because of the manner in which the bill was passed. Three
bills in the Ninety-Sixth Congress contributed in some way to
the legislation as finally enacted. H.R. 7020. 96th Cong.. 2d |
Sess. (1980), H.R. 85, 96th Cong.. Ist Sess. (1979), and S.
1480, 96th Cong.. Ist Sess. (1979). The legislative history is
untangled and analyzed in Grad. A Legislative History of the
Comprehensive Environmental Response. Compensation
and Liability (“Superfund”) Act of 1980, 8 Colum. J. Env. L.
1 (1982).
A-13
A. 42 U.S.C. § 9607 and the Definition of
“Person”
CERCLA empowers the President. in coordination
with the state or states in which there is a hazardous
waste site emergency, to clean up the dangerous waste
or take other steps necessary to prevent the danger
from escalating. 42 U.S.C. § 9604. The liability section
of CERCLA, 42 U.S.C. § 9607(a), allows those who have
incurred clean up costs to sue “any person” who owned
or operated the waste site for all costs incurred in the
removal effort. The definitional section of the statute,
42 U.S.C. § 9601. defines person as “an individual.
firm, corporation. association, partnership,
consortium, joint venture, commercial entity, United
States Government, State, municipality, commission,
political subdivision of a State, or any interstate body.”
42 U.S.C. § 9601(21) (emphasis added).
Union Gas argues that 42 U.S.C. 88 9607(a) and
9601 jointly meet the clear statement requirement
enunciated by the Supreme Court. The argument is
straightforward: (1) 8 9607(a) says that any person
who owns or operates a hazardous waste site is liable
for clean-up costs: (2) the state owns the land on
Brodhead Creek where the hazardous waste is
deposited: (3) § 9601 says that a state is a person for
purposes of CERCLA; therefore, (4) the state is jointly
liable for the costs of the clean-up.
Although this argument is not without force, we
cannot accept it. The statutory arrangement in this
case is almost identical to that in Employees of Dept.
of Pub. Health & Welfare v. Missouri Dept. of Pub.
Health & Welfare, 411 U.S. 279 (1972). Here. as there,
the suggestion that states might be sued is found ina
provision separate from the one that creates the
plaintiff's cause of action. The Employees Court found
that arrangement insufficient to satisfy the burden of
abrogation. Because there is no suggestion in
A-14
CERCLA’'s legislative history that the authors of these
provisions intended them to make states liable for
damages, cf. Hutto v. Finney, 437'U.S. 678 (1978). we
are bound by Employees to find that the inclusion of
“states” within the class of potential defendants is
insufficient to abrogate Pennsylvania's immunity."'
We would reach the same conclusion without the
guidance of Employees. for there is evidence in
CERCLA itself that § 9607(a) was not intended to
abrogate states’ sovereign immunity. The United
States is included in the definition of person in
§ 9601(21): therefore. if § 9607(a) were indeed an
abrogation of states’ sovereign immunity then that
section would waive the United States’ immunity as
well. However, a separate CERCLA provision, § 9607(g)
explicitly waives federal sovereign immunity.'* This
implies that 8 9607(a) does not waive federal
immunity, for otherwise 8 9607(g) would be
superfluous. See 2A Sutherland Stat. Const. 8 46.06
Ll. The dissent suggests that the “key distinction” between
Employees and this case is that the inclusive language in
the FLSA at issue in Employees was an amendment to the
statute while there was no such “evolution” in CERCLA.
Dissent Typescript at 6-7. A fair reading of Employees
demonstrates, however. that it was not the tact that the
statute had been amended that led the Court to its
conclusion, but rather the absence of any clear indication of
congressional intent to abrogate states eleventh
amendment immunity. See Employees. 411 U.S. at
283-85. There is no greater evidence of congressional intent
in this case.
12. 42 U.S.C. § 9607(g) states:
Each department, agency. or instrumentality of the
execulive. legislative. and judicial branches of the
Federal Government shall be subject to. and comply
with, this chapter in the same manner and to the same
extent. both procedurally and substantively. as any
nongovernmental entity, including liability under this
section.
A-15
(4th ed. 1984 rev.) (“A statute should be construed so
that effect is given to all its provisions, so that no part
will be inoperative or superfluous ..."'). Since
§ 9607(a) treats states and the federal government
identically -- and since abrogation of states’ eieventh
amendment immunity requires no less a showing of
congressional intent than does waiver of federal
sovereign immunity" -- it follows that 8 9706(a) does
not abrogate states’ eleventh amendment immunity,
either.
Even if not read as an abrogation of state sovereign
immunity, § 9607(a) still performs a meaningful
function, cf. Hutto, 437 U.S. at 693-94, because it
establishes a right of action by the United States
against any states that own or operate hazardous
waste sites. Suits by the United States against states
are not foreclosed by the eleventh amendment. United
States v. Mississippi, 380 U.S. 128, 140-41 (1965), but
without § 9607(a) the United States would not be able
to sue the states under CERCLA’s generous terms."*
13. Arguably. abrogation of states’ eleventh amendment
immunity would require a greater showing of congressional
intent than does waiver of federal sovereign immunity. The
difference in the burdens of proof would arise from the fact
that federal sovereign immunity. unlike states’ eleventh
amendment immunity. arises from the common law not the
Constitution. See Cohens v. Virginia. 19 U.S. (6 Wheat.)
264 (1821): Jaffe. Suits Against Governments and Officers:
Sovereign Immunity. 77 Harv. L. Rev. 1 (1963) (tracing
origins of doctrine in old English cases). We might therefore
require greater specificity for the abrogation of state
sovereign immunity than for the waiver of federal
immunity. However. as that particular question is not
before us here, the observations in this footnote are not
part of our holding.
14. Most significantly. CERCLA allows for full recoupment of
clean-up costs and strict liability. 42 U.S.C. §8 9607(a).(c).
If the United States could not sue states under CERCLA, it
might be left sue each state under its own tort law.
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Since the United States does most of the initial
clean-up and then sues for reimbursement, our
reading leaves § 9607(a) with substantial importance.
B. Section 9607(e)(2) and Subrogation Rights
Section 9607(e)(2) states that “[njothing in this
subchapter. . . shall bar a cause of action that. . . any
... person subject to liability under this section ...
has or would have. by reason of subrogation.” Union
Gas argues that this section allows it to subrogate to
the rights of the United States against Pennsylvania
once the United States settled its case against Union
Gas. Since the United States could sue Pennsylvania.
see supra Part IV.A, Union Gas argues. so should
Union Gas be able to do so. through the device of
subrogation.
Section 9607(e)(2) simply cannot bear the burden
it must to abrogate the states’ eleventh amendment
sovereign immunity. That section does not even
mention the eleventh amendment or suits against
states. There is no evidence in the legislative history of
§ 9607(e)(2) that Congress intended private parties to
inherit all of the rights of the United States including
the right to override the states’ right not to be sued by
private citizens in federal court, and we cannot ascribe
such an intention to Congress.'* Once again, if our
refusal to read § 9607(e)(2) as an abrogation provision
rendered that section meaningless or contradictory. we
would have to reconsider our position. But our holding
that § 9607(e)(2) does not allow private parties to sue
15. Union Gas cites only one case to support the proposition
that a party that subrogates to the rights of the United
States inherits the right to sue states. Prairie State National
Bank v. United States. 164 U.S. 227 (1896). That case did
not contain any constitutional issues. let alone the
particular issue of eleventh amendment sovereign
immunity. No state was even a party in that case.
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states leaves it open for private parties to sue other
private parties or the United States in the appropriate
circumstances. Thus, under our reading, § 9607(e)(2)
retains a significant role.
C. CERCLA’'s Broad Policy
CERCLA was intended “to initiate and establish a
comprehensive response and financing mechanism to
abate and control the vast problems associated with
... hazardous waste disposal sites.” H.R. Rep. No.
1016, 96th Cong.. 2d Sess. 22, reprinted in|1980} U.S.
CODE CONG. & AD. NEWS 6119, 6125. Fastening on
the word “comprehensive” in this passage and on
similar expressions elsewhere of Congress’ resolve to
deal with hazardous waste sites with one fell swoop.
see. e.g.. S. Rep. No. 848, 96th Cong., Ist Sess. 12
(1980) (bill “is designed to help address many of the
problems faced by society as a result of chemical
contamination.”), Union Gas argues that Congress
must have intended to abrogate states’ immunity or
else CERCLA would be less than “comprehensive” and
all-encompassing. The inevitable conclusion. the
argument runs, is that CERCLA must be an abrogation
of states’ eleventh amendment immunity.
While the previous two arguments relied on the
language of CERCLA itself. this one relies exclusively
on CERCLA’s legislative history. It therefore faces a
particularly heavy burden that it is unable to bear. Not
only is there nowhere near the overwhelming evidence
relied upon by the Supreme Court in Hutto v. Finney.
437 U.S. at 694. but there is simply no indication
anywhere in CERCLA’s legislative history that
Congress considered abrogating the eleventh
amendment or even contemplated CERCLA suits
against states.'® The declaration that a bill will deal
16. The issue of states’ immunity was never squarely addressed
by either house of Congress in the CERCLA debates. The
A-18
“comprehensively” with a problem is commonplace and
may be little more than political hyperbole: at all
events, it does not rise to the level necessary to deprive
states of their constitutional rights. The legislative
history falls far short of providing a “formal indication
of Congress’ intent to abrogate the States’ Eleventh
Amendment immunity.” id. at 697 n.27. and Union
Gas’ argument from legislative history thus fails.
D. A Comparison of CERCLA with other
Environmental Statutes
CERCLA was not the first congressional effort to
deal with environmental problems by creating causes
of action against polluters. The Clean Air Act, the
Resource Conservation and Recovery Act (RCRA). and
the Federal Water Pollution Control Act all authorize
citizens’ suits against polluters. In each case, the
legislation specifically provides that any citizen may
sue violators of the relevant statute to enforce the
terms of the act and that if the violators are states they
may be sued “to the extent permitted by the Eleventh
Amendment to the Constitution.” See 42 U.S.C.
§ 7604 (1982) (Clean Air Act): 42 U.S.C. 8 6972 (1982)
(RCRA): 33 U.S.C. § 1365 (1982) (Federal Water
Pollution Control Act).
eleventh amendment was mentioned not once in any
document or discussion pertaining to CERCLA. It can be
argued that the Senate debates suggest that to the extent
there was any consideration of the matter of sovereign
immunity. it was thought that states would retain their
immunity. Senator Randolph. for example. stated that the
purpose of CERCLA liability provisions was to “provide that
the funds be financed largely by those industries and
consumers who profit from products and services
associated with the hazardous substances which impose
risks on society.” 126 Cong. Rec. 30932 (Nov. 24. 1980).
This statement would appear not to include states.
However. this argument is not necessary to our conclusion.
and we note it only in the interests of completeness.
26 CR etme
Oe ee ee ee
A-19
Because CERCLA does not have an analogous
provision for citizens’ suits,'? § 6907, which limits
standing to those who have incurred response or
remedial expenses in cleaning up releases of hazardous
substances, is the closest analogy in CERCLA to the
citizens suit provisions of the other statutes. Union
Gas points out that unlike those provisions in the
other statutes, CERCLA does not have an explicit
eleventh amendment limitation and concludes that the
absence of such a limitation in CERCLA is sufficient
evidence that Congress intended CERCLA to abrogate
the eleventh amendment.
Our answer, by now familiar. but no less applicable
or correct. is that this evidence is simply insufficient to
overturn the states’ constitutional right to immunity.
In the first place, the citizen suit provisions in the
other three statutes are fundamentally different from
§ 9607. for whereas those provisions permit only
injunctive relief to enforce the terms of each statute,
§ 9607 permits recoupment of clean-up expenses, an
action for damages. Thus. the analogy is inexact. More
fundamentally. even if the citizen suit provisions
allowed for damage remedies as does § 9607. we do not
believe that the comparison between the statutes
would constitute a showing of congressional intent
sufficient to abrogate eleventh amendment immunity.
None of the Supreme Court cases cited above, nor any
other case of which we are aware in any court, has read
a Statute to abrogate eleventh amendment immunity
on the basis of what the statute did not say.
Congressional silence, except in the rarest of cases, is
not unequivocal evidence of congressional intent. To
interpret congressional silence as express abrogation.
therefore. would be improper. See Employees, supra.
17. There are bills currently in Congress that would amend
CERCLA to allow for citizen suits. The bills are discussed
infra at pp. 21-22.
A-20
411 U.S. at 285 (“It is not easy to infer that Congress
... desired silently to deprive the States of an
immunity they have long enjoyed... .’).
Our position is unchanged by recently proposed
amendments to CERCLA that would provide for citizen
suits. Both the House and the Senate have passed bills
amending CERCLA in various respects. See H.R. 2817,
99th Cong.. Ist Sess. (1985) (House Bill): H.R. 2005
(Senate Bill). The bills are scheduled for joint
conference, and are not yet law. Among the
amendments are ones analogous to the citizen suit
provisions in the Clean Air Act, Federal Water Pollution
Act, and RCRA, that allow citizens to bring suits
against any violators of CERCLA, or against the
President, to enforce compliance with CERCLA. Like
those other provisions, the proposed CERCLA citizen
suit provision would permit suits against states “to the
extent permitted by the Eleventh Amendment.” See
H.R. 2817 § 150: H.R. 2005 § 310. Union Gas argues
that the facts that the proposed amendments would
include the eleventh amendment limitation and that
§ 9607 does not include it imply that § 9607 was
intended to abrogate the eleventh amendment."
Subsequent legislation declaring the intent of an
earlier statute is entitled to great weight in judicial
statutory interpretation. Red Lion Broadcasting Co. v.
F.C.C., 395 U.S. 367, 380-381 (1969). There is no
evidence, however. to support Union Gas’ contention
that the proposed amendments are a response to the
terms or perceived meaning of § 9607. Union Gas
points to no legislative history of the proposed
18. Union Gas explains: “{I|f [the proposed amendments] were
to become law. it would suggest that Congress had
abrogated and intended to continue the abrogation of
states’ Eleventh Amendment immunity as to |42 '.S.C.
§ 9607] suits brought by parties that have paid ciean-up
costs. but not as to the new categories of citizen suits.”
A-21
amendments that suggests that the Congress
considering the amendments thought that 8 9607
abrogated the eleventh amendment and made a
conscious decision to distinguish the amendments by
limiting the scope of the citizens’ suits. Our
independent review of the legislative history has also
turned up no evidence that the proposed amendments
reflect the current Congress’ judgment about the scope
and meaning of § 9607. Without any such evidence,
the amendments cannot withstand the burden of proof
that abrogation demands."”
V. CONCLUSION
We hold that CERCLA does not evidence
congressional intent to abrogate states’ eleventh
amendment immunity. The judgment of the district
court will be affirmed.
19. There is a perfectly reasonable explanation for the eleventh
amendment limitations in the proposed citizen suit
provisions according to which those limitations are not a
response to the scope of § 9607: it may be simply that the
proposed CERCLA citizen suit provisions were modeled
after the analogous provisions in the other environmental
statutes. without regard to § 9607.
On account of the lack of evidence that the proposed
amendments are a response to the current Congress’
understanding of § 9607. we do not have to decide how
much weight we would give the amendments if they were in
fact motivated by a current legislative interpretation of
§ 9607. Because the proposed amendments are not yet, and
may never be. law. the amendments deserve less weight
than they would otherwise. C/. Southeastern Community
College v. Davis. 442 U.S. 397. 411 n.11 (1979) (statements
of legislators or congressional committees after the
enactment of a law are not entitled to the same interpretive
weight as subsequent legislation).
A-22
A. LEON HIGGINBOTHAM, JR.. Circuit Judge.
dissenting.
When a statute in its definitional section declares
unequivocally that the term “person” includes a “State.
municipality, commission, political subdivision of a
State, or any interstate body” 42 U.S.C. 8 9601(21)
(emphasis added), the explicit language of Congress
should not be disregarded where there is no legislative
history suggesting that Congress did not mean what
they said when they used the word “state.” Instead of
giving Congress the presumption that they know what
a state is, the majority seems to assume that judges
have a better mastery and understanding of the
English language than does Congress. and thus they
roam through inconclusive legislative history to
“demonstrate” that Congress did not mean state when
they included that specific phrase in the key
definitional section of the statute. In the future, to
comply with the rationale of the majority. in
definitional sections of similar statutes where
remedies are provided for damages citizens or
corporations have suffered, Congress must use
language similar to the following: “The term person
includes a state, and we really mean the state. and
furthermore the eleventh amendment's prohibition on
suits against the states does not apply.” In matters of
statutory construction of legislation that is as explicit
as the statute in issue. no other court has imposed as
broad a reading of eleventh amendment prohibitions. |
respectfully dissent.
The liability section of Comprehensive
Environmental Response Compensation and Liability
Act (CERCLA), 42 U.S.C. § 9607, provides that *...
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,
A-23
. . . Shall be liable for. . . any other necessary costs of
response incurred by any other person consistent with
the national contingency plan. ...° 42 U.S.C.
§ 9607(a)(2)(B) (emphasis added). The definitional
section of the statute, 42 U.S.C. § 9601, defines person
as “an individual, firm, corporation, association,
partnership. consortium, joint venture, commercial
entity, United States Government, State, municipality,
commission, political subdivision of a State, or any
interstate body.” 42 U.S.C. 8 9601(21) (emphasis
added). Inasmuch as the plain language of 42 U.S.C.
§§ 9607(a)(2)(B) and 9601(21), when read jointly,
declares that a state is a person for liability purposes
pursuant to CERCLA, it follows then that “states” are
within the class of potential defendants liable for the
costs of the clean-up. The statutory language points
unambiguously to a conclusion contrary to that
reached by the majority. To reach the conclusion that
the word state means state one need not resort to
inferences or a fortiori reasoning. One need not fill in
what Justice Cardozo calls the “interstitial gaps” of
legislation. Nor are we confronted with the problem
that Gray so eloquently described in his Nature and
Sources of the Law:
The fact is that the difficulties of so-called
interpretation arise when the legislature has had
no meaning at all: when the question which is
raised on the statute never occurred to it: when
what the judges have to do is, not to determine
what the legislature did mean on a point which
was present to its mind. but to guess what it
would have intended on a point not present to its
mind, if the point had been present.
J. C. Gray, Nature and Sources of the Law, § 370 at
165, quoted in, B. Cardozo, The Nature of the Judicial
Process 15 (1975).
A-24
II.
The basic issue is whether the definitional section
is sufficiently adequate in itself to find legislative
intent to abrogate sovereign immunity. I think it is.
When interpreting a statute. the starting point is of
course the language of the statute itself. Consumer
Product Safety Commission v. GTE Sylvania, 447
U.S. 102, 108 (1980). If the language is clear and
unambiguous, and there is no “clearly expressed
legislative intention to the contrary, that language
must ordinarily’ be regarded as conclusive.” Id.: see
also Dickerson v. New Banner Institute. Inc., 460 U.S.
103, 110 (1983) (same).
In the instant case, there is no legislative history
indicating that Congress considered or debated the
issue of states’ eleventh amendment immunity. From
my view, the absence of a debate on this issue merely
indicates that Congress was smart enough to know
what a state is and therefore, when including states as
persons who could be liable under CERCLA. Congress
realized the eleventh amendment implications.
Because there is no legislative evidence as to
whether Congress intended states to be inclusive or
exclusive of CERCLA’s liability provision, 42 U.S.C.
§ 9607, the language of the definitional section, 42
U.S.C. § 9602(21), is controlling and should be
regarded as authoritative evidence of congressional
intent to abrogate states’ sovereign immunity. It would
seem, therefore, from the clear words of the statute
(“person means ... state, ..."), that the majority
should have reached a different result. Instead, the
majority held that “we are bound by [Employees v.
Missouri Dept. of Pub. Health & Welfare, 411 U.S. 279
(1973)] to find that the inclusion of ‘states’ within the
class of potential defendants is insufficient to abrogate
a *
A-25
Pennsylvania's immunity."' Maj. Typescript at 14. I
submit that,since Employees. supra, is patently
distinguishable from the case at bar, we are not
“bound” to decide this case in favor of states’
immunity.
In Employees. the employees of state health
facilities brought suit against the state in federal court,
seeking overtime compensation due them under the
Fair Labor Standards Act (“FLSA”) of 1938. The
question was whether the employees could sue their
l. The majority also holds that “{wlJe would reach the same
conclusion without the guidance of Employees. for there is
evidence in CERCLA itself that § 9607(a) was not intended to
abrogate states’ sovereign immunity.” Maj. Typescript at 15.
The majority relies on a separate CERCLA provision.
§ 9607(g). that explicitly waives federal sovereign immunity.
The majority suggests that because § 9607(g) waives federal
sovereign immunity. § 9607(a) does not waive federal
sovereign immunity: hence, since § 9607(a) treats states and
the federal government identically. § 9607(a) does not
abrogate states’ eleventh amendment immunity either. /d. at
15-16.
The majority cites no legislative history to support the
weight they give to § 9607(g). At most. Congress was merely
being redundant by their inclusion of a waiver of federal
sovereign immunity. The redundancy is not the equivalent of
demonstrating a congressional intent not to abrogate states’
eleventh amendment immunity. The majority's conclusion is
contrary to the familiar canon of statutory construction.
Because there is no legislative history as to Congress’
considering the specific problem of sovereign immunity. the
court must rely on the plain language of CERCLA. The
language of CERCLA contains a clear indication that
Congress intended to allow private citizens to bring suits
against states. In view of such clear statutory language. it
does not follow that because Congress provided a specific
provision abrogating federal government's immunity.
Congress’ failure to do the same where states are concerned
evidenced a conclusive congressional intent not to lift states’
sovereign immunity.
A-26
state employer in federal court under FLSA. The
liability section of FLSA provided in relevant part:
Any employer who violates the provisions of
section 6 or section 7 of this Act shall be liable to
the employee or employees affected in the
amount of their unpaid minimum wages, or
their unpaid overtime compensation, as the case
may be, and in an additional equal amount as
liquidated damages. Action to recover such
liability may be maintained in any court of
competent jurisdiction....
Section 16(b) of FLSA. 52 Stat. 1069, 29 U.S.C.
§ 216(b) (1938). The definitional section of FLSA read
in relevant part:
“Employer” includes any person acting directly
or indirectly in the interest of an employer in
relation to an employee but shall not include
the United States or any State or political
subdivision of a State, or any labor
organization (other than when acting as an
employer). or anyone acting in the capacity of
officer or agent of such labor organization.
Section 3(d) of FLSA. 52 Stat. 1060. 29 U.S.C.
§ 203(d) (1938) (emphasis added). In 1966. § 3(d) was
amended by expanding the definition of employer to
include a state or a political subdivision with respect to
employees “(1) in a hospital. institution, or school
referred to in the last sentence of subsection (r) of this
section, ... ~ Pub. L. 89-601, 8 102(b), 80 Stat. 831
(1966). In view of the 1966 amendment, FLSA
seemingly subjected states to suit along with other
employers. However, since the language in § 16(b) had
not been changed in 1966, the court in Employees
concluded that it should not infer that Congress had
removed states’ immunity from suit without amending
i
:
:
A-27
§ 16(b). The court in Employees said “[i]t would also be
surprising in the present case to infer that Congress
deprived Missouri of her constitutional immunity
without changing the old section 16(b) under which
she could not be sued or indicating in some way by
clear language that the constitutional immunity was
swept away.” Employees. 411 U.S. at 285.
The key distinction between FLSA and CERCLA is
that within the evolution of FLSA amendments there
were two statutory provisions that caused an
ambiguity as to the intent of Congress. In Employees.
prior to 1966. there was clear statutory language
indicating a congressional intent not to abrogate
states’ eleventh amendment immunity. But. the
subsequent 1966 amendment made the earlier
statutory language unclear: as to its applicability - the
amended section 29 U.S.C. § 203(d) (1966) made
states subject to suit under FLSA while the liability
section, 29 U.S.C. § 216(b), remained the same. Read
together, these sections could be rationally construed
to either deny or allow states to be subjected to suit by
state employees. Thus. the evolutionary language
within FLSA spawned ambiguity.
In contrast. in this case, we are not confronted
with a statute which at one time declared that a person
“shall not include the United States or any State or
political subdivision of a State.” But to the contrary,
here, we have the original statute, never amended for
purposes relevant to this case, that has always declared
that the state was a person for liability purposes. In
view of the familiar canon of statutory construction,
the language of FLSA, unlike the language of CERCLA,
was not authoritative evidence of clear legislative
intent. Cf. Dickerson, 460 U.S. at 110 (the general rule
of statutory construction is to look first to the language
of the statute and then to the legislative history if the
statute is unclear).
A-28
The majority also relies on Atascadero State
Hospital v. Scanlon, 105 S. Ct. 3142 (1985) in holding
that CERCLA does not abrogate the eleventh
amendment bar to suits against the states.
Atascadero, supra, involved 8504 of the
Rehabilitation Act of 1973, 29 U.S.C. 8 794 (1982),
which conferred a right of action upon handicapped
people who were discriminated against by “any
recipient of federal assistance.” In Atascadero, a
plaintiff sought damages from a state hospital that
received federal financial assistance. The Atascadero
court, noting that Congress must express its intention
to abrogate the eleventh amendment in unmistakable
language in the statute itself. held that the “general
authorization for suit in federal court is not the kind of
unequivocal statutory language sufficient to abrogate
the eleventh amendment.” Atascadero, 105 S. Ct. at
3147-49.
The case at bar is distinguishable from
Atascadero, supra. The Statute in Atascadero provides
remedies for violations of 8 504 by “any recipient of
federal assistance” (emphasis added). However: there
was no specific statutory language identifying the class
of recipients of federal aid. as in CERCLA. as “State,
municipality, commission, political subdivision of a
State, or any interstate body.” Thus, the statute in
Atascadero placed liability on a general class of
potential defendants.
In the instant case, CERCLA provides that any
person who owns or operates any facility at which
hazardous waste is deposited is liable for the costs of
the clean-up (emphasis added). In addition to the
foregoing general liability provision, CERCLA further
provides a specific provision identifying the class of
potential defendants, i.e., person means state. See 42
U.S.C. § 9601(21). Unlike the statute in Atascadero.
the statute in the case at bar does more than place
—
ARAN ln he om clam ls PUL gaia Nan aah:
A-29
liability on a general class of potential defendants.
CERCLA allows states to be subjected to suit by private
persons, in “unmistakable language in the statute
itself.”
In the case at bar, | find no ambiguity in the
language of CERCLA and no contrary legislative intent.
The majority, therefore. had no occasion to “look
beyond the plain language of the federal statute... .”
Thorn v. Reliance Van Co., Inc., 736 F.2d 929, 932 (3d
Cir. 1984). quoting, Aloha Airlines. Inc. v. Director of
Taxation of Hawaii, 464 U.S. 7, 12 (1983).
Accordingly, the definitional section of CERCLA, 42
U.S.C. § 9601(21). is controlling. CERCLA was passed
with clear congressional intent, evidenced by its
unambiguous statutory language. to abrogate states’
eleventh amendment immunity.
Ill.
As judges, we must never forget the complexity and
the time constraints of the federal legislative process.
Legislators do not have the time or the capacity to
anticipate every possible argument that might be made
subsequently by creative and clever counsel. They need
not thwart every potential argument in the womb of
time by writing volumes of legislative history which say
no more than that the legislature meant what they said
in the statute. As Justice Cardozo once observed “[wle
do not pick our rules of law full-blossomed from the
trees.” B. Cardozo, supra at 103. In this case. there
was a bloom of sufficient specificity for the problems
with which Congress was dealing. It is particularly
ironic that private parties will now be denied the right
to collect millions of dollars in damages? for which they
2. The amended complaint with revised damage estimates
alleges that the United States has spent $1.400.000 on the
clean up. of which $720.000 was collectible from Union Gas
under CERCLA. It is the theory of Union Gas that much of
A-30
should be reimbursed because the state was the party
that improperly “disposed” of hazardous substances to
the land and waterways of our Nation. Such a result is
absurd and patently unfair when it is based on the
assumption that Congress did not really mean “states”
although it unambiguously included states as persons
liable for the harm they cause in disposing of
hazardous substances.
To return to Justice Cardozo, he so wisely observed
that:
[iIn countless litigations, the law is so clear that
judges have no discretion. They have the right to
legislate within gaps. but often there are no
gaps. We shall have a false view of the landscape
if we look at the waste spaces only, and refuse to
see the acres already sown and fruitful.
Id. at 129. In this case, from my view the majority has
failed to look at the landscape and appreciate the clear
statutory language of Congress. I would reverse and
remand this case to the district court for further
proceedings.
the damage was caused by the state. Union Gas alleges that
the state:
. caused the alleged release and discharge of
coal tar and oil into Brodhead Creek by their acts.
omissions and/or negligence including, inter alia:
(a) The narrowing of the channel of
Brodhead Creek on its western side and
restriction of the channel with dikes thereby
causing significant downcutting:
(b) Excavating along the toe of the dike and
backwater areas:
(c) Failing to take corrective measures to
prevent the downcutting.
Appendix {12 at 106a-107a.
A-31
A True Copy:
Teste:
Clerk of the United States Court of Appeais
for the Third Circuit
A-33
Appendix B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 85-1177
UNITED STATES OF AMERICA
V.
UNION GAS COMPANY
Vv.
COMMONWEALTH OF PENNSYLVANIA
and THE BOROUGH OF STROUDSBURG
UNION GAS COMPANY,
Appellant
(D.C. Civ. No. 83-2456)
On Appeal from the United States
District Court for the
Eastern District of Pennsylvania
Present: WEIS, HIGGINBOTHAM and BECKER,
Circuit Judges 5
A-34
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the Eastern District of Pennsyl-
vania and was argued by counsel January 7, 1986.
On consideration whereof, it is now here ordered and ad-
judged by this Court that the judgment of the said District Court
entered Kebiruary 4, 1985, be, and the same is hereby affirmed.
Costs taxed against the appellant.
ATTEST:
Clerk
June 10, 1986
A-35
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : CIVIL ACTION
v.
UNION GAS COMPANY NO. 83-2456
ORDER
AND NOW, TO WIT, this 28th day of October, 1983, IT IS
ORDERED that the motion of third-party defendant, Common-
wealth of Pennsylvania, to dismiss the third-party complaint as
to it is granted and all claims against the Commonwealth of
Pennsylvania are dismissed. The Court's Opinion will be filed in
due course.
Louis C. BecuT_e, J.
A-37
Appendix C
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA CIVIL ACTION
v. |
UNION GAS COMPANY | NO. 83-2456
MEMORANDUM
BECHTLE, J. NOVEMBER 15, 1983
The United States of America has brought suit against the
Union Gas Company (“Union Gas”) under sections 104 and 107
of the Comprehensive Environmental Response Compensation
and Liability Act (‘CERCLA” or “the Act”), 42 U.S.C. §9604
and 9607, and section 311(b)(3) and 311(f)(2) of the Clean Water
Act, 33 U.S.C. §1321(b)(3) and 1321(f)(2), for reimbursement of
costs of removal and remedial action incurred in the clean-up of
hazardous substances, released from a facility allegedly owned.
and operated by Union Gas, into Brodhead Creek in
Stroudsburg, Pennsylvania. Union Gas has filed a third party
complaint under CERCLA against the Commonwealth of Penn-
sylvania and the Borough of Stroudsburg, alleging that the third
party defendants are owners and operators of the facility in
question and are therefore responsible for the release of any
hazardous substances into Brodhead Creek. Presently before the
court is the Commonwealth of Pennsylvania's motion to dismiss
the third party complaint on the ground that jurisdiction over it
is barred by the Eleventh Amendment to the United States
Constitution. As set out below, the court agrees that the Elev-
enth Amendment bars this suit insofar as the Commonwealth is
concerned. Therefore, its motion to dismiss shall be granted.
The Eleventh Amendment to the federal Constitution em-
bodies the doctrine of state sovereign immunity. It provides as
follows:
A-38
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.
U.S. CONST. amend. XI.
Accordingly, suits against a state by citizens from either another
state or a foreign state are barred. Additionally, although the
amendment does not expressly address suits against a state by its
own citizens, the Supreme Court has recognized that such suits
are also barred. Edelman v. Jordan, 415 U.S. 651, 653 (1974)
(citations omitted).
Exceptions to the states Eleventh Amendment sovereign
immunity exist in situations where either the state has consented
to the filing of such a suit, Edelman v. Jordan, 415 U.S. 651
(1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459
(1945), or Congress has abrogated the states’ sovereign immunity
by explicit statutory mandate. Parden v. Terminal R. Co., 377
U.S. 184 (1964); Employees v. Missouri Public Health Dept., 411
U.S. 279 (1973). See Quern v. Jordan, 440 U.S. 332 (1974); Hutto
v. Finney, 437 U.S. 678 (1978); Fitzpatrick v. Bitzer, 427 U.S.
445 (1976). Union Gas contends that it fits within the latter
category. Union Gas claims that in enacting CERCLA, Congress
effectively abrogated the states immunity from suit by private
citizens seeking indemnity for costs incurred in the clean-up of
hazardous waste sites.
Union Gas's position must be considered in light of a line of
Supreme Court cases, the holdings of which may be distilled
into a rule which the court shall call the “clear statement rule.”
The principle embodied in the clear statement rule is that a state
cannot be sued pursuant to the liability provisions of a federal
law unless Congress provides a clear statement that it intended
to abrogate the states immunity with respect to that law. The
origin of this rule may be traced to Parden v. Terminal R. Co.,
377 U.S. 184 (1964), wherein the Court faced, for the first time,
a state's claim of immunity against suit by an individual upon a
cause of action expressly created by Congress. The issue to be
A-39
decided was whether a state that owned and operated a railroad
in interstate commerce could successfully plead sovereign im-
munity in a federal suit brought against the railroad by its
employee under the Federal Employers’ Liability Act (“FELA”),
45 U.S.C. §51, et seg. The Court's analysis focused on the
question of whether Congress, in enacting the FELA, intended
to subject a state to suit under the circumstances presented.
After reviewing the terms and purposes of the FELA, the Court
concluded that indeed Congress had intended to allow states to
be sued under the FELA’s liability provisions. The case ulti-
mately turned on the determination that the state, by engaging
itself in the railroad business for profit, had entered into an area
normally occupied by private persons and corporations. It had
therefore consented to be subject to the federal regulations
applicable to the railroad industry and had waived its sovereign
immunity from a suit under the FELA.
The Parden decision was subsequently limited in Employ-
ees v. Missouri Public Health Dept., 411 U.S. 279 (1973), a case
filed against administrative departments of the State of Missouri
by state employees seeking overtime compensation allegedly
due them under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §216(b). Despite express language in the Act that its
coverage extended to certain state employees, the Court refused
to find that Congress had lifted the sovereign immunity of the
states “where the purpose of Congress to give force to the
Supremacy Clause by lifting the sovereignty of the States and
putting the States on the same footing as other employers is not
clear.” Id. 411 U.S. at 287.! After reviewing the pertinent legisla-
tive history of the FLSA the Court concluded that if Congress
intended to deprive the states of their constitutional immunity,
it would not have done so silently. Since there was no “clear
language” in either the statute itself or its legislative history
which would indicate that the states’ constitutional immunity
was swept away, the Court ruled that the Eleventh Amendment
1. The holding did not render the extension of coverage to state employ-
ees meaningless because §16(c) of the FLSA permits the Secretary of Labor to
bring suit on behalf of state employees for unpaid wages.
A-40
barred the employees suits against their state employer. 411
U.S. at 285.
In Edelman v. Jordan, 415 U.S. 651 (1974), the Court
reversed the Seventh Circuit's holding that a state, by participat-
ing in a federal-state aid program governed by federal regula-
tions, had “constructively consented” to a citizen's suit related to
the state’s administration of that program. The Edelman Court
reiterated that in considering a claim of surrender of Eleventh
Amendment immunity in the face of federal legislation, “we will
find waiver only where stated ‘by the most express language or
by such overwhelming implications from the text as [will] leave
no room for any other reasonable construction. ” Id. 415 U.S. at
673 (citations omitted).2
Congressional awareness and compliance with the Supreme
Court decisions setting out the clear statement rule cannot be
disputed. Congress has, through clear statutory language and
legislative intent, enacted a number of laws effectively abrogat-
ing a state's immunity in federal court. See e.g., Parks v.
Pavkovic, 536 F.Supp. 296, 309 (N.D. Ill. 1982) (Education for
All Handicap Children Act of 1975 specifically intended to im-
pose liability on states for certain education costs); Oneida In-
dian Nation of Wisconsin v. State of New York, 520 F.Supp.
1278, 1305 (N.D. N.Y. 1981) (intent to abrogate state immunity
inferred from congressional intent, statutory language and spe-
cial relationship between the Indian tribe and federal govern-
2. Following Ede!man, the decisions in Fitzpatrick v. Bitzer, 427 U.S. 445
(1976); Hutto v. Finney, 437 U.S. 678 (1978); and Quern v. Jordan, 440 U.S.
332 (1979), have reaffirmed the principle that the “clear statement rule” is the
appropriate guideline for examining claims that Congress has lifted Eleventh
Amendment immunity through its enactment of particular legislation. Al-
though these cases concern legislation passed pursuant to the Fourteenth
Amendment, while the legislation at issue in Employees, Parden, and
Edelman was passed pursuant to Article I, the distinction 1s not material inso-
far as the existence of the clear statement rule is concerned. See Fitzpatrick,
supra, 427 U.S. at 452. Succinctly stated, the Fourteenth Amendment cases
focus on whether §5 of the Fourteenth Amendment itself provides the clear
statement by Congress necessary to allow abrogation of the Eleventh Amend-
ment. Of course, such discussions assume that the clear statement rule is the
starting point for the analysis.
A-41
ment); modified on other grounds, 691 F.2d 1070 (2d Cir. 1982);
Witter v. Pennsylvania Nat'l Guard, 462 F.Supp. 299, 306 (E.D.
Pa. 1978) (Vietnam Era Veterans Readjustment Act is an express
authorization of federal suits against a state for back pay). Abro-
gation of immunity in these cases was premised on a finding that
in enacting the particular legislation at issue, Congress clearly
expressed its intent to allow states to be sued. Compare Savage
v. Commonwealth of Pennsylvania, 475 F.Supp. 524, 529 (E.D.
Pa. 1979) (Civil Rights Act of 1871 not intended by Congress to
abrogate a state's immunity (citing Quern v. Jordan, 440 U.S.
332 (1979)); Municipal Authority of Bloomsburg v. Dept. of
Environmental Resources, 496 F.Supp. 686, 689 (M.D. Pa.
1980) (Federal Water Pollution Control Act amendments did not
abrogate the states’ immunity); Stubbs v. Kline, 463 F.Supp. 110,
116 (W.D. Pa. 1978) (Rehabilitation Act of 1973 did not contain
the requisite congressional intent to abrogate a state's Eleventh
Amendment immunity).
Applying the clear statement rule to the facts of the present
case indicates that allowance of the claim against the Common-
wealth of Pennsylvania depends-on a finding that Congress
expressly intended to abrogate a state's sovereign immunity.? A
review of the statutory provisions and legislative history of
CERCLA, however, reveals that there is no clear statement of
such an intent in CERCLA.
Turning to the actual statutory provisions themselves, the
3. In applying the clear statement rule to the present case, it should ini-
tially be noted that the Supreme Court has not yet addressed whether a state
can be specifically named as a defendant in a waiver of abrogation case, where
the state is being sued under a federal statute, as opposed to a consent case,
where the state is being sued under state law. Cf. Alabama v. Pugh, 438 U.S.
781 (1979); Ex parte Young, 209 U.S. 123 (1908). For purposes of deciding the
present motion, however, this court will assume, without deciding, that a state
may be specifically named as a defendant in a suit under a federal statute which
abrogates the states’ Eleventh Amendment immunity. Of course, a state may,
on its own accord, waive its sovereign immunity. Parden v. Terminal R. Co.,
supra. The Third Circuit Court of Appeals has ruled, however, that while
Pennsylvania has waived its sovereign immunity in state courts, it has not con-
sented to suits filed in federal court. Skelan Bd. of Trustees of Bloomsburg, 669
F.2d 142, 147 (3d Cir. 1982), cert. denied, 103 S.Ct. 468 (1982).
A-42
court finds nothing to indicate that Congress intended to allow
states to be sued by private citizens under CERCLA. Union
Gas’s assertion that Congress did intend to lift the states’ sov-
ereign immunity centers upon language in Section 9607 that any
“person” responsible for illegal toxic waste dumping is liable to
other “persons” for costs incurred in the clean-up operation.
Section 9601(21) defines a person, for purposes of
CERCLA, as “an individual, firm, corporation, association, part-
nership, consortium, joint venture, commercial entity, United
States Government, State, municipality, commission, political
subdivision of a state, or any interstate body.”
Union Gas argues that, since a “person” includes a state
4. Section 9607 provides that:
Notwithstanding any other provision or rule of law, and subject only to the
defenses set forth in subsection (b) of this section—
(1) the owner and operator of a vessel (otherwise subject to the jurisdiction
of the United States) or a facility,
(2) any person who at the time of disposal of any hazardous substance
owned or operated any facility at which such hazardous substances were
disposed of,
(3) any person who by contract, agreement, or otherwise arranged for dis-
posal or treatment, or arranged with a transporter for transport for dis-
posal or treatment, of hazardous substances owned or possessed by such
person, by any other party or entity, at any facility owned or operated by
another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for
transport to disposal or treatment facilities or sites selected by such per-
son, from which there is a release, or a threatened release which causes
the incurrence of response costs, of a hazardous substance, shall be liable
for—
(A) all costs of removal or remedial action incurred by the United States
Government or a Staie not inconsistent with the national contingency
plan;
(B) any other necessary costs of response incurred by any other person
consistent with the national contingency plan; and
(C) damages for injury to, destruction of, or loss of natural resources, in-
cluding the reasonable costs of assessing such injury, destruction, or loss
resulting from such a release.
42 U.S.C. §9607 (emphasis added).
A-43
within the meaning of CERCLA, 42 U.S.C. §9601(21), a state
would be liable to a private litigant under §9607. This court
cannot agree. A similar argument concerning the Fair Labor
Standards Act (“FLSA”) was suggested by plaintiffs and rejected
by the Court in Employees v. Missouri Public Health Dept.,
supra, 411 U.S. 279. In Employees, the term “employers,”
within the meaning of FLSA, included state-run health institu-
tions. The Supreme Court found, however, that despite this
inclusion, there was no indication of a congressional purpose to
permit a citizen to sue the state in federal court. 411 U.S. at 285.
The Court refused to imply such a purpose merely because the
statute defined “employers” so as to include a particular state-
run institution. In view of Employees, Union Gass argument
as to the combined effect of Sections 9607 and 9601(21) of
CERCLA must be rejected. Any congressional waiver in .
CERCLA of the states’ Eleventh Amendment immunity from
suit must therefore be found in the statute's legislative history.
A review of the legislative background of CERCLA, how-
ever, reveals nothing to support a finding that Congress clearly
expressed an intent to abrogate a state's immunity from liability.
Neither the House nor the Senate reports indicated an intent to
include a governmental entity as a defendant in an action
brought by a private party. The Senate debates, however, made
numerous references to private companies potentially liable un-
der CERCLA. During one of these debates, it was expressly
stated that a specific purpose of the CERCLA or “Superfund”
liability provisions is to “provide that the fund be financed
largely by those industries and consumers who profit from prod-
ucts and services associated with the hazardous substances
which impose risks on society.’ 126 Cong. Rec. $14963-64 (daily
ed. Nov. 24, 1980) (statement of Sen. Randolph) (emphasis
added). The Senate debates further emphasized that “[i]ssues of
liability not resolved by this act, if any, shall be governed by
traditional and evolving principles of common law.’ i26 Cong.
Rec. at $14964. This court reads this last statement to include
the common law doctrine of sovereign immunity embodied in
the Eleventh Amendment.
In sum, since neither the statutory provisions nor the legis-
A-44
lative history of CERCLA reveals the requisite clear statement
by Congress, the inevitable conclusion to be drawn is that Con-
gress did not intend to allow private citizens to file suit against a
state under this statute. Accordingly, the Commonwealth of
Pennsylvania’s motion to dismiss shall be granted.
The court's Order was previously entered on October 28,
1983.
Louis C. BECHTLE, J.
A-45
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA : CIVIL ACTION
V.
UNION GAS COMPANY
Vv.
COMMONWEALTH OF
PENNSYLVANIA
and THE BOROUGH OF
STROU DSBURG : NO. 83-2456
CRDER
AND NOW, TO WIT, this 13th day of September, 1984,
upon motion of the Commonwealth of Pennsylvania to dismiss,
IT IS ORDERED that the motion is granted and the amended
third-party complaint filed by the Union Gas Company is dis-
missed for the reasons set forth in this court's Memorandum
dated November 15, 1983.
Louis C. BECHTLE, J.
Ht
A-47
Appendix D
SUPREME COURT OF THE UNITED STATES
NO. A-146
UNION GAS COMPANY,
Applicant,
Vv.
PENNSYLVANIA, ET AL.
ORDER EXTENDING TIME TO FILE PETITION FOR
WRIT OF CERTIORARI
UPON CONSIDERATION of the application of counsel for
the applicant,
IT IS ORDERED that the time for filing a petition for a writ
of certiorari in the above-entitled case be, and the same is
hereby, extended to and including October 8, 1986.
/s/ WILLIAM J. BRENNAN, JR.
Associate Justice of the Supreme
Court of the United States
Dated this 27th
day of August, 1986.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.