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Pennsylvania v. Union Gas Co.

Citation: 19 ELR 20974
No. No. 87-1241, 491 U.S. 1/29 ERC 1657/(U.S., 06/15/1989) Aff'd

The Supreme Court rules that states may be sued for money damages under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 107, and that this is a proper exercise of congressional authority under the Constitution's Commerce Clause. Five separate opinions were filed in the case, with shifting 5-4 majorities on both questions. Four justices (Brennan, Marshall, Blackmun, and Stevens) would hold both that CERCLA makes states liable for money damages and that this is a proper exercise of congressional authority under the Commerce Clause. Justice Scalia provides the fifth voteon the CERCLA statutory interpretation issue, and Justice White provides the fifth vote on the issues of constitutional interpretation.

Justice Brennan filed the lead opinion, first holding, in a portion of the opinion joined by four other justices, that CERCLA clearly expresses congressional intent to hold states liable for hazardous waste cleanup costs. CERCLA § 101(21) specifically includes states in the definition of "persons," and under § 101(20)(A) "persons" may be "owners or operators" who are in turn liable under § 107. Section 101(20)(D) excludes states from the category of "owners or opeeators" in narrow circumstances, but specifically provides that otherwise states are subject to CERCLA liability to the same extent as a private person. Moreover, CERCLA § 107(d)(2) provides a limited immunity for states responding to emergencies, a provision which would be unnecessary unless states were liable in general, and CERCLA § 310(a)(1)'s reservation of Eleventh Amendment state sovereign immunity from citizen suits would be unnecessary unless Congress had elsewhere overridden state immunity from suit. CERCLA § 101(20)(D)'s waiver of state sovereign immunity mirrors the language of CERCLA § 120(a)(1), which is an effective waiver of federal sovereign immunity. The lead opinion, still in a portion in which four other justices join Justice Brennan, next holds that the CERCLA waiver extends to cost recovery suits brought by private parties in addition to those brought by the United States. CERCLA § 101(20)(D) makes states liable "to the same extent . . . as any nongovernmental entity," and the United States can always sue a state without explicit statutory interpretation anyway. Similarly, CERCLA § 101(20)(D)'s provision that states' liability includes liability under § 107 is only meaningful where states are made liable for private actions. Still in a portion of Justice Brennan's opinion joined by four other justices, the Court holds that CERCLA § 101(20)(D)'s waiver applies to the entire definition of "owner or operator," not just to that part applicable to involuntary owners, and its mention of local governments along with state governments does not diminish the waiver of state liability.

The lead opinion filed by Justice Brennan next holds, in reasoning joined by three other justices, that the Commerce Clause authorizes Congress to abrogate states' Eleventh Amendment sovereign immunity. The opinion recognizes that no previous Supreme Court decision has squarely addressed this issue, but several prior decisions either assume it or provide reasoning for decisions that supports this conclusion, and all courts of appeals that have considered the issue conclude that Commerce Clause power extends to abrogating Eleventh Amendment state immunity. Prior Supreme Court decisions had squarely held that Congress can abrogate Eleventh Amendment state immunity when Congress acts under the Fourteenth Amendment, and even though the Eleventh Amendment was enacted after the Commerce Clause and before the Fourteenth Amendment, the state sovereignty principles of the Eleventh Amendment predate the Constitution itself. Similarly, the chronological order of amendments would only matter if the Commerce Clause authorized Congress to abrogate state sovereign immunity, and if so, the Eleventh Amendment would have to be far clearer than it is to show that it was intended to limit congressional power and [19 ELR 20975] not merely judicial power. Moreover, Congress' Commerce Clause power would be incomplete without the authority to render the states liable in damages, and states surrendered this part of their immunity when they ratified the Constitution. Because the Commerce Clause precludes state legislation in some areas even where Congress has not acted, if Congress cannot create a cause of action for money damages against states then no one can do so. However, in many situations only money damages could carry out Congress' legitimate objectives under the Commerce Clause. Moreover, holding that Congress under the Commerce Clause can abrogate state immunity under the Eleventh Amendment does not mean that Congress can expand the jurisdiction of the federal courts beyond the bounds of Article III.

In a concurring opinion, Justice Stevens, who had fully joined in Justice Brennan's lead opinion, distinguishes between the limited, literal provisions of the Eleventh Amendment, which he says Congress cannot alter by statute, and the expanded, Court-added state sovereign immunity provision of the Eleventh Amendment, which he says Congress can abrogate by statute.

In another concurring opinion, Justice White, joined by three other justices, disagrees with the majority opinion and would not have found the necessary clear congressional intent in CERCLA to abrogate Eleventh Amendment state immunity. However, if such intent is taken as given, Justice White, now no longer joined by three other justices, would agree with the conclusion but not much of the reasoning of the lead opinion by Justice Brennan, and would find that Congress can abrogate Eleventh Amendment state sovereign immunity.

In a partial concurrence and partial dissent, Justice Scalia, would first hold that CERCLA has the necessary clear intent to abrogate Eleventh Amendment state sovereign immunity, and then, in portions of the opinion joined by three other justices, would have dismissed the suit as violative of the Eleventh Amendment's protection of states from suits brought against them in federal court.

Finally, Justice O'Connor adds a brief dissent, emphasizing that she would agree with Justice White's opinion to the extent that CERCLA does not have the necessary clear waiver of state sovereign immunity, and Justice Scalia's opinion to the extent that Congress may not abrogate Eleventh Amendment state sovereign immunity.

[Lower court opinions in this case appear at 14 ELR 20246, 20491; 16 ELR 20818; and 18 ELR 20046. Briefs from the Supreme Court are digested at ELR PEND. LIT. 66014.]

Counsel for Petitioners
John G. Knorr III, Chief Deputy Attorney General; Gregory R. Neuhauser, Senior Deputy Attorney General
Office of the Attorney General
15th Fl., Strawberry Sq., Harrisburg PA 17120
(717) 783-1471

Counsel for Respondent
Robert A. Swift, Marguerite R. Goodman
Kohn, Savett, Klein & Graf
1101 Market St., Ste. 2400, Philadelphia PA 19107
(215) 238-1700

Lawrence Demase
Rose, Schmidt, Chapman, Duff & Hasley
900 Oliver Bldg., Pittsburgh PA 15222
(412) 434-8610