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United States v. Union Gas Co.

ELR Citation: 18 ELR 20046
Nos. No. 85-1177, 832 F.2d 1343/26 ERC 1769/(3d Cir., 11/03/1987) Rev'd on remand from U.S. Supreme Court

The court rules that the Eleventh Amendment does not bar a private suit in federal court against a state for monetary damages arising under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). The Eleventh Amendment bars such suits unless the state has consented to suit or unless Congress has unmistakably expressed its intention to abrograte the Eleventh Amendment's protections. In an earlier pre-SARA opinion in this case, 16 ELR 20818, the court had ruled that the Eleventh Amendment bars such suits under CERCLA. The court now rules that SARA §101, amending the definition of "owner or operator" in CERCLA §101(20) by adding a new paragraph (D), provides the unmistakable congressional expression of intent to abrogate the Eleventh Amendment. The new text requires that in general a state "shall be subject to the provisions of this Act in the same manner and the same extent" as any nongovernmental entity. Moreover, this is similar to the language Congress used to waive the federal government's sovereign immunity. Although normally mere enumeration in a definitional section remains insufficient to abrogate the Eleventh Amendment, here the language is not definitional in character. The new waiver of the federal government's sovereign immunity in CERCLA §120(a)(1) provides that the explicit waiver provided there is not intended to affect the liability of other entities under CERCLA. That the waiver does not appear in the section of CERLCA creating liability, a factor in determining whether the congressional expression is sufficiently clear, is not a concern here since the new language itself is so clear.

CERCLA's new citizen suit provision, §310(a)(1), expressly prevents abrogation of Eleventh Amendment immunity for citizen suits, and by implication Eleventh Amendment immunity is abrogated elsewhere. Because the statutory language is clear, SARA legislative history is unnecessary to resolve this issue. Nonetheless, the conference report supports the court's reading.

The court next rules that Congress can act pursuant to its powers under the commerce clause of Article I of the Constitution to abrogate Eleventh Amendment immunity. Congress is not limited to acting under amendments passed after the Eleventh Amendment. The court notes that the Supreme Court has never directly addressed the issue of whether Congress can abrogate the Eleventh Amendment under its commerce clause powers. Nonetheless, the court rules that the Constitution must be read in light of the entire document, not on a timeline, and the Article I commerce clause powers are sufficient to enable Congress to legislate in ways that limit states. The Eleventh Amendment was not intended to limit Congress' Article I powers; rather it limits the courts' powers under Article III to abrogate the state's presumptive immunity from diversity suits. Such an arrangement is sensible because it limits only the unelected judiciary, and this is also the effect of requiring a clear statement of congressional intent rather than relying on judicially found inferences. Congress, unlike the judiciary, is restrained by the political process as it acts under the commerce clause. Moreover, the very structure of the federal scheme requires that states have relinquished sovereignty where the Constitution has provided Congress a plenary grant of authority.

Finally, the court finds that SARA's changes to CERCLA retroactively abrogate the Eleventh Amendment. The general rule is that a court of appeals applies the law as it is in effect at the time of its appellate decision. SARA has in effect increased the jurisdiction of federal courts over states, and this is treated like all other changes of law on appeal. The court observes in a footnote that the legislative history of SARA suggests that Congress had intended to abrogate Eleventh Amendment immunity when it originally enacted CERCLA.

Related opinions in this case appear at 14 ELR 20246, 20491, and 16 ELR 20818. This issue is analyzed in articles at 14 ELR 10156 and 17 ELR 10197.]

Counsel for Appellant
Robert A. Swift, David H. Marion
Kohn, Savett, Marion & Graf
2400 One Reading Center, 1101 Market St., Philadelphia PA 19107
(215) 238-1700

Lawrence A. Demase
Rose, Schmidt, Chapman, Duff & Hasley
900 Oliver Bldg., Pittsburgh PA 15222
(412) 434-8600

Counsel for Appellee
Leroy S. Zimmerman, Attorney General; Andrew S. Gordon, Chief Deputy Attorney General
Chief, Litigation Section
Office of the Attorney General, 15th Fl., Strawberry Square, Harrisburg PA 17120
(717) 787-3391

Counsel for Amicus Curiae
Elaine Gail Suchman, Ass't Attorney General; Robert Abrams, Attorney General
State of New York, Department of Law
Environmental Protection, 120 Broadway, New York NY 10271
(518) 474-7330

Before Weis & Higginbotham, JJ.