Pennsylvania v. Union Gas Company/Concurrence White

by Byron White

Justice WHITE, with whom THE CHIEF JUSTICE, Justice O'CONNOR, and Justice KENNEDY join as to Part I, concurring in the judgment in part and dissenting in part.

I find no "unmistakably clear language," Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 478, 107 S.Ct. 2941, 2948, 97 L.Ed.2d 389 (1987), in either CERCLA or SARA that expresses Congress' intent to abrogate the States' Eleventh Amendment immunity. However, a m jority of the Court concludes otherwise, and therefore I reach the constitutional issue presented here. On that question, I concur in Justice BRENNAN's conclusion, but not his reasoning.

* Our cases make it plain that only the most direct expression of Congress' intent to make the States subject to suit will suffice to abrogate their sovereign immunity as recognized in the Eleventh Amendment. Thus, we have said that Congress must "explicitly and by clear language indicate on [the] face [of an enactment] an intent to sweep away the immunity of the States"; and that any such law must "have a history which focuses directly on the question of state liability and which shows that Congress considered and firmly decided to abrogate the Eleventh Amendment immunity of the States." Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 1147, 59 L.Ed.2d 358 (1979). As we put it more recently: "Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985).

Two statutes are offered by the Court as providing the "unmistakable language" required by our cases to abrogate the States' Eleventh Amendment immunity: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq. (1982 ed. and Supp. IV), and the 1986 Amendments to CERCLA, found in the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. 99-499, 100 Stat. 1613. I consider both of these statutes in turn.

I begin by examining CERCLA, in the form in which Congress originally adopted it in 1980. In its initial consideration of this case-under CERCLA before the SARA amendments were added in 1986-the Third Circuit concluded that the statute did not contain an "unmistakable" abrogation of the Eleventh Amendment. United States v. Union Gas Co., 792 F.2d 372, 378-382 (1986). The Court disagrees, however, suggesting that because CERCLA includes "States" within its definition of "persons," 42 U.S.C. § 9601(21), and because the statute makes "persons" who are "owners or operators," 42 U.S.C. § 9601(20) (1982 ed., Supp. IV), liable under § 9607, Congress expressed in CERCLA an "unmistakably" clear intent to make the States liable to suit by private parties in federal court. Ante, at 7-8. I reject this conclusion for several reasons.

First, I note that of the four federal judges who examined this question under CERCLA, only one-Judge Higginbotham in dissent in the Third Circuit's initial consideration of this case, 792 F.2d, at 383-386-found in this statutory scheme the requisite clear statement of Congress' intent to abrogate the States' immunity. See n. 7, infra. While such a "judicial headcount" is, of course, not dispositive, it does suggest that whatever one can say about CERCLA, it did not include an "unmistakable " declaration of abrogation of state immunity. If we are going to be faithful to Atascadero and Welch as providing our standard for this sort of case, then the fact that experienced jurists could disagree about Congress' intent under CERCLA is relevant, because the disagreement suggests that the statute's provisions about state liability were certainly not "unmistakably clear."

Second, the significance that the Court draws from CERCLA's inclusion of States within its definition of persons is suspect for its impact on other portions of the statute. The definitional section the Court relies on also includes the "United States Government" within the term "person." 42 U.S.C. § 9601(21). Yet Congress also adopted, in CERCLA, an entirely separate statutory provision rendering the Federal Government suable under the statute's liability provision, see § 9607(g). If the Court's views about the significance of including States within the definition of persons is correct, then § 9607(g) was wholly redu dant, because-by including the United States Government within the definition of persons-Congress had already stripped the Federal Government of its sovereign immunity. ^[1]

Rather than assuming that Congress wrote a wholly redundant subsection of § 9607, however, it seems more likely to conclude that Congress did not think that including the United States Government or the States within § 9601(21)'s general definition of "persons" subject to CERCLA's regime was enough to abrogate the sovereign immunity of either for damages awards. ^[2] Cf. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). With respect to the Federal Government, Congress went on to enact a separate provision executing the requisite waiver of immunity, § 9607(g). However, with respect to the States, Congress made no such additional provision: the conclusion to be drawn is obvious.

Finally, and most importantly, the Court's reading of CERCLA employs the precise analytical approach we rejected in Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). There, as is true here, the relevant statutory term that described who was covered by the Act (in Employees, it was the term "employers" in the Fair Labor Standards Act (FLSA)), expressly included the State defendant (in Employees, it was the State as an employer of "employees of a State . . . hospital"); invoking these provisions, a private litigant sought to hold the State liable under the statute's damages remedy. Id., at 282-283, 93 S.Ct., at 1616-1617. Nonetheless, in Employees, we held that Congress had not thereby abrogated the States' Eleventh Amendment immunity; instead, we concluded, Congress had meant only to make the States subject to enforcement actions brought by the Federal Government. Id., at 285-286, 93 S.Ct., at 1618-19.

In all relevant respects, the portion of CERCLA on which the Court elies and the portion of the FLSA that was before us in Employees are indistinguishable, as are the arguments made for considering the statutes to have abrogated the States' immunity. In Employees, we rejected these arguments; the same result should attach here. Instead, we should conclude, as we did in Employees, that Congress' intent could have been to let the Act's policies be achieved through enforcement actions taken by the Federal government against the States. As we observed in Employees, supra, at 286, 93 S.Ct., at 1619: "The policy of the Act so far as the States are concerned is wholly served by allowing the delicate federal-state relationship to be managed through" enforcement actions directed by the Federal Executive Branch-and not through litigation by private parties against the States.

Nor is the Court's result supported by reference to the purposes of CERCLA. Respondent finds much significance in the fact that this statute was designed to be "comprehensive" in nature. 792 F.2d, at 381 (summarizing respondent's contention below). But surely the Federal Employers' Liability Act (Welch), the Rehabilitation Act (Atascadero), and the FLSA (Employees) were all "comprehensive" statutes in their respective fields, and yet this was not enough to deem the Eleventh Amendment abrogated in those cases. Nor is it true that CERCLA's "comprehensiveness" will be substantially lessened by deeming the States' immunity to have survived intact. The States remain subject to liability at the hands of the Federal government; this provides a viable means of achieving CERCLA's ends. See Reply Brief for Petitioner 10. ^[3]

Above all, the entire purpose of our "clear statement" rule would be obliterated if this Court were to imply Eleventh Amendment abrogation from our sense of what would best serve the general policy ends Congress was trying to achieve in a statute. Such arguments based on the statute's general goals, whatever weight they might have under a normal exercise in statutory construction, have no bearing on our analysis of congressional abrogation. Cf. Dellmuth v. Muth, 491 U.S. 223, 230-231, 109 S.Ct. 2397, 2400-2401, 105 L.Ed.2d 181 (1989). If Congress believes that making the States liable to private parties is critical to the scheme it has created in CERCLA, it is up to Congress to say so in unmistakable language. Since it has not, I believe that our "clear statement" precedents bar us from implying such a policy choice-even if it is "latent" in the statutory scheme, or an advisable means of achieving the statute's ends.

The question then becomes whether, a the Court of Appeals found, United States v. Union Gas Co., 832 F.2d 1343 (3rd Cir.1987), the 1986 amendments to CERCLA (known as SARA) added such an "unmistakable" statement of abrogation to the statute.

The text of the relevant portion of SARA (now codified at 42 U.S.C. § 9601(20)(D) (1982 ed., Supp. IV)) states, in full:

"State or Local Government Limitation-Paragraph (20) of [[[42 U.S.C. § 9601]]] (defining 'owner or operator') is amended as follows:

"(1) Add the following new subparagraph at the end thereof:

" '(D) The term "owner or operator" does not include a unit of State or local government which acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as sovereign. The exclusion provided under this paragraph shall not apply to any State or local government which has caused or contributed to the release . . . of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this Act in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under [42 U.S.C. § 9607].' " Pub.L. 99-499, 100 Stat. 1615.

Although Congress entitled the amendment "State or Local Government Limitation," the Court disparages the idea that § 9601(20)(D) was enacted solely as a limitation on governmental unit liability. The Court asserts that such a view ignores that § 101(20)(D) "would be unnecessary unless" the States could be liable under § 9607. Ante, at 8. But everyone agrees that States may be liable under § 9607: the liability of the Commonwealth of Pennsylvania to the United States. Section 9601(20)(D) provides a significant reduction of that potential liability, as it limits the circumstances under which state and local governments will be forced to pay the United States Government for cleanups at involuntarily acquired sites. Given this fact, § 9601(20)(D) makes perfectly good sense without any contortion of it to imply an intent of Congress to abrogate the Eleventh Amendment. ^[4]

There is a second fact about the relevant part of SARA that makes it an odd candidate for an Eleventh Amendment abrogation provision: it only applies to facilities acquired by state and local governments "involuntarily . . . by virtue of [their] function[s] as sovereign." See § 9601(20)(D). If this amendment is the means by which Congress intended to make the States liable to suit, it did so only with respect to those properties which a State acquired involuntarily; States would remain immune for sites which they owned and operated by choice. A State would be immune from private suit under § 9607 for costs associated with the cleanup of a state-created, owned, and operated hazardous-waste dump, but it would be liable for discharges at sites it acquired when an owner abandoned his property. Surely if the two cases are to be distinguished, the logical distinction would be exactly the opposite one.

Recognizing that Congress could not have intended such a result, the Court avoids this conclusion by saying that this part of SARA "explains and qualifies the entire definition of 'owner or operator'-not just that part of the definition applicable to involuntary owners." Ante, at 12-13. But this is plainly wrong: the portion of the sentence which the Court says renders the States liable ("a State or local government shall be subject . . .") is introduced by the words, "[t]he exclusion provided under this paragraph shall not apply. . . ." § 9601(20)(D). Thus, the liability-creating portion of § 9601(20)(D) exists only as a "limit" on the liability-limiting portion of § 9601(20)(D). ^[5] Under the Court's reading of the statute, we are left with the paradox of Congress being tougher on States that find themselves involuntary operators of waste sites, than it was on those that had owned and operated such facilities on their own accord.

The Court argues that the last clause of the last sentence of § 9601(20)(D)-making involuntary-owner state and local governments that cause the release of toxic chemicals "subject to the provisions of [CERCLA] in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity"-provides the clear statement of abrogation required by our cases. But like the Court's reliance on the inclusion of States within CERCLA's definition of "persons" subject to the Act (which I discussed above), this method of analysis is directly contrary to the approach we took in Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973). The Court insists that its reliance on this part of SARA is correct because, if the statute is interpreted to mean something other than abrogating state immunity, the provision is rendered redundant and meaningless. Ante, at 11-12.

The provision, however, has meaning as something less than an abrogation provision because, like the statute in question in Employees, it exists to make the States liable to the Federal Government. While the Court is surely correct when it observes that, under United States v. California, 332 U.S. 19, 26-27, 67 S.Ct. 1658, 1662-1663, 91 L.Ed. 1889 (1947), no statutory provision is required as a general matter to permit the United States to sue a State, here, the Congress forbade such actions in the first part of § 9601(20)(D) with respect to some States (i.e., involuntary owners of waste sites). Thus, the portion of § 9601(20)(D) on which the Court rests its case is precisely like the 1966 amendment to § 3(d) of the FLSA that was before us in Employees: it operates to put some States back into the class of entities that may be liable to the United States, after Congress had previously exempted them from such actions. See Employees, supra, 411 U.S., at 282-283, 93 S.Ct., at 1616-1617. As in Employees, the statute should be read as only authorizing suits by the United States against the States, absent a more clear statement of an authorization of private actions. ^[6]

In Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360-1361, 39 L.Ed.2d 662 (1974), we said of the related question of interpreting a state statute to find a waiver of Eleventh Amendment immunity, that such a waiver would only be found "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' " of the statute in question. Here, there is room for a "reasonable construction" of SARA that does not entail an Eleventh Amendment abrogation; i.e., that Congress intended it as a modification of the liability of the States to the Federal Government. Even if the Court's interpretation of § 9601(20)(D) were itself "reasonable," the existence of an alternative, nonabrogating "reasonable" nterpretation of the section dictates rejection of its view.

Consequently, I do not think that SARA's liability-limiting amendment to CERCLA contains an "unmistakably clear" statement by Congress that it wanted to abrogate the States' solemn immunity to private suit under the Eleventh Amendment. ^[7]

My view on the statutory issue has not prevailed, however; a majority of the Court has ruled that the statute, as amended, plainly intended to abrogate the immunity of the States from suit in the federal courts. I accept that judgment. This brings me to the question whether Congress has the constitutional power to abrogate the States' immunity. ^[8] In that respect, I agree with the conclusion reached by Justice BRENNAN in Part III of his opinion, that Congress has the authority under Article I to abrogate the Eleventh Amendment immunity of the States, although I do not agree with much of his reasoning.

Accordingly, I would affirm the judgment of the Court of Appeals.

Justice O'CONNOR, dissenting.

I agree with Justice SCALIA that a faithful interpretation of the Eleventh Amendment embodies a concept of state sovereignty which limits the power of Congress to abrogate States' immunity when acting pursuant to the Commerce Clause. But that view does not command a majority of the Court, thus necessitating an inquiry whether Congress intended in CERCLA, 42 U.S.C. § 9601 et seq., and SARA, Pub.L. 99-499, 100 Stat. 1613, to abrogate the States' Eleventh Amendment immunity. On that question, I join Part I of Justice WHITE's opinion. I also join Parts II, III, and IV of Justice SCALIA's opinion concurring in part and dissenting in part.

Notes

1. In Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), we said that a condition of suability of the Bridge Commission, which we interpreted Congress to have attached to its approval of the interstate compact creating the Commission, was accepted by the States when they implemented the compact. That was an alternative holding, since we also found that the terms of the compact itself made the Commission suable. Obviously, moreover, what Congress may exact with respect to new entities created by compacts that the States have no constitutional power to make without its explicit consent, see U.S.C.onst., Art. I, § 10, cl. 3, may be much greater than what it may exact in other contexts.
2. A "waiver" theory would not support retroactive imposition of liability-but that is rare in any event. Moreover, it could be held that waiver cannot occur when the State is unaware of the facts that trigger its liability, or of the law that imposes it. It is difficult to imagine how ignorance of the facts could ever be found, unless (as is most unlikely) we should decline to attribute the knowledge of the State's agents to the State itself. Our cases discussing waiver have displayed no interest in "actual" state knowledge of either facts or law.
8. As a preliminary matter, I reiterate my view that, for the reasons stated by the plurality in Welch v. Texas Dept. of Highways, supra, at 478-488, 107 S.Ct., at 2944-2954, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), should not be overruled.