Lead Opinion
announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Part III, in which
This case presents the questions whether the Comprehen-sive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. S. C. § 9601 et seq., as amended by the Superfund Amendments and Act of 1986 (SARA), Pub. L. 99&emdash;499, 100 Stat. 1613, a suit for monetary damages against a State in federal court and, if so, whether Congress has the authority to create such a cause of action when legislating pursuant to the Clause. The answer to both questions is "yes."
I
For about 50 years, the predecessors of respondent Union Gas Co. operated a coal gasification plant near Brodhead Creek in Stroudsburg, Pennsylvania, which produced coal tar as a by-product. The plant was dismantled around 1950. A few years later, Pennsylvania took part in major flood-control efforts along the creek. In 1980, shortly after acquiring easements to the property along the creek, the struck a large deposit of coal tar while excavating the creek. The coal tar began to seep into the creek, and the
To recoup these costs, the United States sued Union Gas under §§104 and 106 of CERCLA, 42 U. S. C. §§9604 and 9606, claiming that Union Gas was liable for such costs because the company and its predecessors had deposited coal tar into the ground near Brodhead Creek. Union Gas filed a third-party complaint against Pennsylvania, asserting that the Commonwealth was responsible for at least a portion of the costs because it was an “owner or operator” of the hazardous-waste site, 42 U. S. C. § 9607(a), and because its flood-control efforts had negligently caused or contributed to the release of the coal tar into the creek. The District Court dismissed the complaint, accepting Pennsylvania’s claim that its Eleventh Amendment immunity barred the suit. A divided panel of the Court of Appeals for the Third Circuit affirmed, finding no clear expression of congressional intent to hold States liable in monetary damages under CERCLA. United States v. Union Gas Co.,
While Union Gas’ petition for certiorari was pending, Congress amended CERCLA by passing SARA. We granted certiorari, vacated the Court of Appeals’ opinion, and remanded for reconsideration in light of these amendments.
In Hans v. Louisiana,
CERCLA both provides a mechanism for cleaning up hazardous-waste sites, 42 U. S. C. §§9604, 9606 (1982 ed. and Supp. IV), and imposes the costs of the cleanup on those responsible for the contamination, §9607. Two general terms, among others, describe those who may be liable under CERCLA for the costs of remedial action: “persons” and “owners or operators.” § 9607(a). “States” are explicitly included within the statute’s definition of “persons.” § 9601(21). The term “owner or operator” is defined by reference to certain activities that a “person” may undertake. §9601(20)(A).
Section 101(20)(D) of SARA excludes from the category of “owners or operators” States that “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
It is also highly significant that, in § 101(20)(D), Congress used language virtually identical to that it chose in waiving the Federal Government’s immunity from suits for damages under CERCLA. Section 120(a)(1) of CERCLA, as set forth in 42 U. S. C. § 9620(a)(1), provides: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of 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 section 9607 of this title.” This is doubtless an “‘unequivocal!] expression]’” of the Federal Government’s waiver of its own sovereign immunity, United States v. Testan,
Although it is true that the inclusion of States within CERCLA’s definition of “persons” would not be rendered meaningless if we held that CERCLA did not subject the States to suits brought by private citizens, it is equally certain that such a holding would deprive the last portion of §101(20)(D) of all meaning. Congress would have had no cause to stress that States would be liable “to the same extent ... as any nongovernmental entity,” § 101(20)(D), if it had meant only that they could be liable to the United States. In United States v. Mississippi,
The same can be said about the clause of § 101(20)(D) specifying that States would be subject to CERCLA’s provisions, “including liability under section 9607 of this title.” Section 9607 provides for liability in damages, and liability in damages is considered a special remedy, requiring special statutory language, only where the States’ immunity from suits by private citizens is involved. In light of § 101(20)(D)’s very precise language, it would be exceedingly odd to interpret this provision as merely a signal that the United States — rather than private citizens — could sue the States for damages under CERCLA.
Moreover, § 101(20)(D) does not, as Pennsylvania suggests, render States liable only if they acquire property involuntarily and then contribute to a release of harmful substances at that property. Section 101(20)(D) obviously explains and qualifies the entire definition of “owner or operator” — not
Nor can it be decisive that § 101(20)(D) mentions local governments as well as States. The Commonwealth argues that, because local governments do not enjoy immunity from suit, § 101(20)(D)’s reference to local governments means that the section shows no intent to abrogate States’ immunity. It was natural, however, for Congress to describe the potential liability of States and local governments in the same breath, since both are governmental entities and both enjoy special exemptions from liability under CERCLA. See §§ 101(20)(D), 107(d)(2). Pennsylvania also argues that § 101(20)(D) demonstrates no intent to hold the States liable because this provision limits the States’ liability. ' It is true that this section rescues the States from liability where they obtained ownership of cleanup sites involuntarily. The Commonwealth fails to grasp, however, that a limitation of liability is nonsensical unless liability existed in the first place.
We thus hold that the language of CERCLA as amended by SARA clearly evinces an intent to hold States liable in damages in federal court.
Ill
Our conclusion that CERCLA clearly permits suits for money damages against States in federal court requires us to decide whether the Commerce Clause grants Congress the power to enact such a statute. Pennsylvania argues that the principle of sovereign immunity found in the Eleventh
A
Though we have never squarely resolved this issue of congressional power, our decisions mark a trail unmistakably leading to the conclusion that Congress may permit suits against the States for money damages. The trail begins with Parden v. Terminal Railway of Alabama Docks Dept.,
The path continues in Employees v. Missouri Dept. of Public Health and Welfare,
Since Employees, we have twice assumed that Congress has the authority to abrogate States’ immunity when acting pursuant to the Commerce Clause. See Welch v. Texas Dept. of Highways and Public Transportation,
It is no accident, therefore, that every Court of Appeals to have reached this issue has concluded that Congress has the authority to abrogate States’ immunity from suit when legislating pursuant to the plenary powers granted it by the Constitution. See, e. g., United States v. Union Gas Co.,
Even if we never before had discussed the specific connection between Congress’ authority under the Commerce Clause and States’ immunity from suit, careful regard for precedent still would mandate the conclusion that Congress has the power to abrogate immunity when exercising its plenary authority to regulate interstate commerce. In Fitzpatrick v. Bitzer, supra, we held that Congress may subject States to suits for money damages in federal court when legislating under § 5 of the Fourteenth Amendment, and further held that Congress had done so in the 1972 Amendments to Title VII of the Civil Rights Act of 1964. Subsequent cases
Fitzpatrick’s, rationale is straightforward: “When Congress acts pursuant to § 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional Amendment whose other sections by their own terms embody limitations on state authority.”
“Such enforcement [of the prohibitions of the Fourteenth Amendment] is no invasion of State sovereignty. No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact. . . . [I]n exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. Her rights do not reach to that extent. Nor can she deny to the general government the right to exercise all its granted powers, though they may interfere with the full enjoyment of rights she would have if those powers had not been thus granted. Indeed, every addition of power to the general government involves a corresponding diminution of the governmental powers of the States. It is carved out of them.” Id., at 346, quoted in Fitzpatrick, supra, at 454-455.
Each of these points is as applicable to the Commerce Clause as it is to the Fourteenth Amendment. Like the Fourteenth Amendment, the Commerce Clause with one hand gives power to Congress while, with the other, it takes power away from the States. It cannot be relevant that the Four
Pennsylvania attempts to bring this case outside Fitzpatrick by asserting that “[t]he Fourteenth Amendment . . . alters what would otherwise be the proper constitutional balance between federal and state governments.” Brief for Petitioner 39. The Commonwealth believes, apparently, that the “constitutional balance” existing prior to the Fourteenth Amendment did not permit Congress to override the States’ immunity from suit. This claim, of course, begs the very question we face.
For its part, Justice Scalia’s opinion casually announces: “Nothing in [Fitzpatrick’s] reasoning justifies limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.” Post, at 42. The operative word here is, it would appear, “antecedent”; and it is important to emphasize that, according to Justice Scalia, the Commerce Clause is antecedent, not to the Eleventh Amendment, but to “the principle embodied in the Eleventh Amendment.” But, according to Part II of Justice Scalia’s opinion, this “principle” has been with us since the days before the Constitution was ratified — since the days, in other words, before the Commerce Clause. In describing the “consensus that the doctrine of sovereign immunity . . . was part of the understood background against which the Constitution was adopted, and which its jurisdic
Even if “the principle embodied in the Eleventh Amendment” made its first appearance at the same moment as the Commerce Clause, and not before, Justice Scalia could no longer rely on chronology in distinguishing Fitzpatrick. Only if it were the Eleventh Amendment itself that introduced the principle of sovereign immunity into the Constitution would the Commerce Clause have preceded this principle. Even then, the order of events would matter only if the Amendment changed things; that is, it would matter only if, before the Eleventh Amendment, the Commerce Clause did authorize Congress to abrogate sovereign immunity. But if Congress enjoyed such power prior to the enactment of this Amendment, we would require a showing far more powerful than Justice Scalia can muster that the Amendment was intended to obliterate that authority. The language of the Eleventh Amendment gives us no hint that it limits congressional authority; it refers only to “the judicial power” and forbids “construing]” that power to extend to the enumerated suits — language plainly intended to rein in the Judiciary, not Congress. It would be a fragile Constitution indeed if subsequent amendments could, without express reference, be interpreted to wipe out the original understanding of congressional power.
Justice Scalia attempts to avoid the pull of our prior decisions by claiming that Hans answered this constitutional question over 100 years ago. Because Hans was brought into federal court via the Judiciary Act of 1875 and because the Court there held that the suit was barred by the Eleventh Amendment, Justice Scalia argues, that case disposed
Our prior cases thus indicate that Congress has the authority to override States’ immunity when legislating pursuant to the Commerce Clause. This conclusion is confirmed by a consideration of the special nature of the power conferred by that Clause.
B
We have recognized that the States enjoy no immunity where there has been “‘a surrender of this immunity in the plan of the convention.’” Monaco v. Mississippi,
It would be difficult to overstate the breadth and depth of the commerce power. See, e. g., NLRB v. Jones & Laughlin Steel Corp.,
The case before us brilliantly illuminates these points. The general problem of environmental harm is often not susceptible of a local solution. See Illinois v. Milwaukee,
The cause of action under consideration, for example, came about only after Congress had tried to solve the problem posed by hazardous substances through other means. Prior statutes such as the Resource Conservation and Recovery Act of 1976, 90 Stat. 2796, as amended, 42 U. S. C. §6901 et seq., had failed in large part because they focused on preventive measures to the exclusion of remedial ones. See Note, Superfund and California’s Implementation: Potential Conflict, 19 C. W. L. R. 373, 376, n. 23 (1983). The remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup. See, e. g., 42 U. S. C. § 9613(f)(1) (1986 ed., Supp. IV). Congress did not think it enough, moreover, to permit only the Federal Government to recoup the costs of its own cleanups of hazardous-waste sites; the Government’s resources being finite, it could neither pay up front for all necessary cleanups nor undertake many different projects at the same time. Some help was needed, and Congress sought to encourage that help by allowing private parties who voluntarily cleaned up hazardous-waste sites to recover a proportionate amount of the costs of cleanup from the other
It does not follow that Congress, pursuant to its authority under the Commerce Clause, could authorize suits in federal court that the bare terms of Article III would not permit. No one suggests that if the Commerce Clause confers on Congress the power of abrogation, it must also confer the power to direct that certain state-law suits (not falling under the diversity jurisdiction) be brought in federal court.
According to Pennsylvania, however, to decide that Congress may permit suits against States for money damages in federal court is equivalent to holding that Congress may expand the jurisdiction of the federal courts beyond the bounds of Article III. Pennsylvania argues that the federal judicial power as set forth in Article III does not extend to any suits for damages brought by private citizens against unconsenting States. See Brief for Petitioner 35-36, quoting Ex parte New York,
IV
We hold that CERCLA renders States liable in money damages in federal court, and that Congress has the authority to render them so liable when legislating pursuant to the Commerce Clause. Given our ruling in favor of Union Gas, we need not reach its argument that Hans v. Louisiana,
It is so ordered.
Notes
Section 101(20)(D), as set forth in 42 U. S. C. 9601(20)(D), provides in full:
“(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 or threatened release of a hazardous substance from the facility, and such a State or local government shall be subject to the provisions of this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.”
Justice White’s attack on the notion that the definition of the word “persons,” standing alone, abrogates the States’ immunity from suit, see post, at 46-50, is directed at an argument that we do not make. We do not say that CERCLA’s definition of “persons” alone overrides the States’ im
The failure to appreciate this point leads to four mistakes. First, in his “judicial headcount,” post, at 46-47, Justice White counts the votes as to the wrong statute. The judges who ruled that CERCLA did not render States liable did so when they considered the unamended version of CERCLA; as to CERCLA as amended by SARA, the three-judge panel unanimously agreed that it clearly abrogated the States’ immunity. (This headcounting approach is flawed for another, more fundamental reason: surely judges can disagree about the content and rigor of the standard of “unmistakable clarity,” and if they do, they are likely to reach different results on States’ amenability to suit for reasons having nothing to do with the statutory language itself.)
Second, Justice White asserts that our reading of CERCLA is inconsistent with the Court’s conclusion in Employees v. Missouri Dept. of Public Health and Welfare,
Third, Justice White claims that' our reading of CERCLA renders § 107(g) — which overrides the United States’ sovereign immunity from suit — redundant. Post, at 47. However, since we do not argue here that the inclusion of the States and the Federal Government in § 101(21)’s definition of “persons,” standing alone, overrides these entities’ immunity, our position does not make § 107(g) superfluous.
Finally, only a failure to recognize that we rely on § 101(21) and § 101(20) (D) in combination could lead to the suggestion that States would enjoy § 101(20)(D)’s more favorable standard of liability even if they voluntarily acquired a site. Post, at 53, n. 5.
. Justice White’s response to this point is unconvincing. After claiming that our reading renders a part of the statute redundant — an accusation without merit, see n. 2, supra — Justice White resorts to a reading of § 101(20)(D) that, he admits, renders the phrase “as any nongovernmental entity” superfluous. Post, at 55, n. 6. To say that this phrase can be explained as a “statutory ‘exclamation point,’ ” post, at 54-55, n. 6, is just another way of describing redundancy. Nor is it possible to explain this passage as an effort to pre-empt state-law immunity for local governments. See post, at 55, n. 6. Given our recognition that “there is no tradition of immunity for municipal corporations,” Owen v. City of Independence,
The language of the Rehabilitation Act Amendments of 1986, Pub. L. 99-506, 100 Stat. 1807, is indeed more pointed on the subject of abrogation than is CERCLA, since it mentions the Eleventh Amendment by name. See post, at 56, n. 7. It is surprising that Justice White’s opinion lays so much stress on this difference in wording, however, because it expressly disclaims any intent to require that the words “Eleventh Amendment” appear in a statute in order to find abrogation. Ibid. If no magic words are required for abrogation, then each statute must be evaluated on its own terms, not defeated by reference to another statute that uses more specific language.
Since Union Gas itself eschews reliance on the theory of waiver we announced in Farden v. Terminal Railway of Alabama Docks Dept.,
Concurrence Opinion
concurring.
It is important to emphasize the distinction between our two Eleventh Amendments. There is first the correct and literal interpretation of the plain language of the Eleventh Amendment that is fully explained in Justice Brennan’s dissenting opinion in Atascadero State Hospital v. Scanlon,
Because Justice Brennan’s opinion in Atascadero and the works of numerous scholars
Several of this Court’s decisions make clear that much of our state immunity doctrine has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment. For example, it is well established that a State may waive its immunity, subjecting itself to possible suit in federal court. See Atascadero,
Another striking example of the application of prudential— rather than true jurisdictional — concerns is found in our decision in Edelman v. Jordan,
“Both prospective and retrospective relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.” (Citations omitted.)
The theme that thus emerges from cases such as Edelman, Pennhurst, and Green is one of balancing of state and federal interests. This sort of balancing, however, like waiver, is antithetical to traditional understandings of Article III subject-matter jurisdiction — either the judicial power extends to a suit brought against a State or it does not. See National Mutual Ins. Co. v. Tidewater Transfer Co.,
Because Congress has decided that the federal interest in protecting the environment outweighs any countervailing interest in not subjecting States to the possible award of monetary damages in a federal court, and because the “judicial power” of the United States plainly extends to such suits, I join Justice Brennan’s opinion. Even if a majority of this Court might have reached a different assessment of the
See, e. g., Marshall, Fighting the Words of the Eleventh Amendment, 102 Harv. L. Rev. 1342 (1989); Jackson, The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 Yale L. J. 1 (1988); Amar, Of Sovereignty and Federalism, 96 Yale L. J. 1425 (1987); Lee, Sovereign Immunity and the Eleventh Amendment: The Uses of History, 18 Urb. Law. 519 (1986); Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61 (1984); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983); Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 Harv. L. Rev. 682 (1976).
. The Eleventh Amendment asserts:
“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*25 United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
This language parallels Article III, which provides in pertinent part:
“The judicial Power shall extend ... to Controversies . . . between a State and Citizens of another State . . . and between a State . . . and foreign . . . Citizens or Subjects.”
This understanding of our state immunity cases explains an additional anomaly. Over the years, this Court has repeatedly exercised Article III power to review state-court judgments in cases involving claims that, under our post-Hans decisions, could not have been brought in federal district court. See, e. g., Davis v. Michigan Dept, of Treasury.
To the extent state immunity from suit in federal court is based on a concern for comity, and not on a limitation on Article III power, Congress is just as free to “declare its will” that this presumption come to an end as are States to decide not to accord one another immunity from suit in state court. See Nevada v. Hall,
Concurrence Opinion
concurring in part and dissenting in part.
M
I join Part II of Justice Brennan s opinion holding that the text of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. S. C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. 99-499, 100 Stat. 1613, clearly renders States liable for money damages in private suits. Justice White’s contention that there is no clear statement is given plausibility only by his methodology of considering CERCLA and SARA separately, finding that first the one and then the other does not necessarily import monetary liability to private individuals — CERCLA because, as we held in Employees v. Missouri Dept. of Public Health and Welfare,
That methodology is appropriate, and Justice White’s conclusion is perhaps correct, if one assumes that the task of a court of law is to plumb the intent of the particular Congress that enacted a particular provision. That methodology is not mine nor, I think, the one that courts have traditionally
Finding that the statute renders the States liable in private suits for money damages, I must consider the continuing validity of Hans v. Louisiana,
J — I J — l
Eight Members of the Court addressed the question whether to overrule Hans only two Terms ago — but inconclusively, since they were evenly divided. See Welch v. Texas Dept. of Highways and Public Transportation,
The Eleventh Amendment states:
“The Judicial power of the United States shall not be construed to extend to any suit in' law or equity, com*31 menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
If this text were intended as a comprehensive description of state sovereign immunity in federal courts — that is, if there were no state sovereign immunity beyond its precise terms — then it would unquestionably be most reasonable to interpret it as providing immunity only when the sole basis of federal jurisdiction is the diversity of citizenship that it describes (which of course tracks some of the diversity jurisdictional grants in U. S. Const., Art. Ill, §2). For there is no plausible reason why one would wish to protect a State from being sued in federal court for violation of federal law (a suit falling within the jurisdictional grant over cases “arising under . . . the Laws of the United States”) when the plaintiff is a citizen of another State or country, but to permit a State to be sued there when the plaintiff is citizen of the State itself. Thus, unless some other constitutional principle beyond the immediate text of the Eleventh Amendment confers immunity in the latter situation — that is to say, unless the text of the Eleventh Amendment is not comprehensive — even if the parties to a suit fell within its precise terms (for example, a State and the citizen of another State) sovereign immunity would not exist so long as one of the other, nondiversity grounds of jurisdiction existed.
About a century ago, in the landmark case of Hans v. Louisiana, the Court unanimously rejected this “comprehensive” approach to the Amendment, finding sovereign immunity where not only a nondiversity basis of jurisdiction was present, but even where the parties did not fit the description of the Eleventh Amendment, the plaintiff being a citizen not of another State or country, but of Louisiana itself. What we said in Hans was, essentially, that the Eleventh Amendment was important not merely for what it said but for what it reflected: a consensus that the doctrine of sovereign immunity, for States as well as for the Federal Govern
“Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also*33 the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been ‘a surrender of this immunity in the plan of the convention.’ The Federalist, No. 81.” Monaco v. Mississippi,292 U. S. 313 , 322-323 (1934) (footnote omitted).
The evidence is strong that the jurisdictional grants in Article III of the Constitution did not automatically eliminate underlying state sovereign immunity, and even stronger that that assumption was implicit in the Eleventh Amendment. What is subject to greater dispute, however, is how much sovereign immunity was implicitly eliminated by what Hamilton called the “plan of the convention.” We have already held that “inherent in the constitutional plan,” Monaco v. Mississippi, supra, at 329, are a waiver of immunity against suits by the United States itself, see United States v. Mississippi,
The inherent necessity of a tribunal for peaceful resolution of disputes between the Union and the individual States, and between the individual States themselves, is incomparably greater, in my view, than the need for a tribunal to resolve disputes on federal questions between individuals and the States. Undoubtedly the Constitution envisions the necessary judicial means to assure compliance with the Constitution and laws. But since the Constitution does not deem this to require that private individuals be able to bring claims against the Federal Government for violation of the Constitution or laws, see United States v. Testan,
Even if I were wrong, however, about the original meaning of the Constitution, or the assumption adopted by the Eleventh Amendment, or the structural necessity for federal-question suits against the States, it cannot possibly be denied that the question is at least close. In that situation, the mere venerability of an answer consistently adhered to for almost a century, and the difficulty of changing, or even clearly identifying, the intervening law that has been based on that answer, strongly argue against a change. As noted by the Welch plurality, “Hans has been reaffirmed in case after case, often unanimously and by exceptionally
I would therefore decline respondent’s invitation to overrule Hans v. Louisiana.
Ill
Justice Brennan’s plurality opinion purports to assume the validity of Hans, and yet reaches the result that CERCLA’s imposition of monetary liability is constitutional because Congress has the power to abrogate state sovereign immunity in the exercise of its Commerce Clause power. Justice White, who not merely assumes the validity of
To begin with, Hans did not merely hold that Article III failed to eliminate state sovereign immunity of its own force, without any congressional action to that end. In Hans, as here, there was a congressional statute that could be pointed to as eliminating state sovereign immunity — namely, the Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470, which gave United States courts jurisdiction over cases involving federal questions. (The Hans Court was unquestionably aware of that refinement, because it was the statutory ground of interpretation of the Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 80, rather than the constitutional ground, that Justice Iredell had relied upon in his dissent in Chisholm, which the Hans Court discussed at some length.) Thus, the distinction that the Court must rely upon is not one between cases in which Congress has assertedly sought to eliminate state sovereign immunity and cases in which in no such assertion is available; but rather the much more gossamer distinction between cases in which Congress has assertedly sought to eliminate
I think it plain that the position adopted by the Court contradicts the rationale of Hans, if not its narrow holding. Hans was not expressing some narrow objection to the particular federal power by which Louisiana had been haled into court, but was rather enunciating a fundamental principle of federalism, evidenced by the Eleventh Amendment, that the States retained their sovereign prerogative of immunity. That is clear throughout the opinion, but particularly in the following passage:
“Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States: can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.
“The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States.”134 U. S., at 15 .
This rationale is also evident from Hans’ reliance upon the dissenting opinion of Justice Iredell in Chisholm — whose views, the Court said, “were clearly right, — as the people of the United States in their sovereign capacity [by ratifying the Eleventh Amendment] subsequently decided.”
“So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which*38 will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorise the deduction of so high a power.” 2 Dali., at 449-450.
Our later cases are similarly clear that state immunity from suit in federal courts is a structural component of federalism, and not merely a default disposition that can be altered by action of Congress pursuant to its Article I powers. As we unanimously explained in Ex parte New York,
“That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification. ”
In Great Northern Ins. Co. v. Read,
“A state’s freedom from litigation was established as a constitutional right through the Eleventh Amendment. The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent.”
“The ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.’ [Garcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528 , 572 (Powell, J., dissenting)]. By guaranteeing the sovereign immunity of the States against suit in federal court, the Eleventh Amendment serves to maintain this balance.”
And in recently refusing to overrule Hans in Welch — an opinion joined by Justice White — the plurality opinion observed that Hans “established that the Eleventh Amendment embodies a broad constitutional principle of sovereign immunity”; that “ ‘a suit directly against a State by one of its own citizens is not one to which the judicial power of the United States extends, unless the State itself consents to be sued.’”
The Court’s conclusion is not only contrary to the clear understanding of a century of cases regarding the Eleventh Amendment, but it contradicts our unvarying approach to Article III as setting forth the exclusive catalog of permissible federal-court jurisdiction. When we have turned to consider whether “a surrender of [state] immunity [is inherent] in the plan of the convention,” we have discussed that issue
The Court’s error is clear enough from the embarrassing frailty of the case support to which the plurality opinion appeals. Justice Brennan refers to “statements . . . [that] lay a firm foundation,” ante, at 14, a “path [that] continues,” ibid., and a “message [that] is plain,” ibid. What he notably does not cite is a single Supreme Court case, over the past 200 years upholding (in absence of a waiver) the congressional exercise of the asserted power — or even a single Supreme Court case finding that such an exercise has occurred. How strange that such a useful power — one that the plurality finds essential to the achievement of congressional objectives, ante, at 20-22 — should never have been approved and rarely (if ever) have been asserted. Even the “message-sending” dicta that the plurality describes cannot be taken at face value. When the plurality states, for example, that “we have twice assumed that Congress has the authority to abrogate States’ immunity when acting pursuant to the Com
Finally, the plurality opinion errs in relying on Fitzpatrick v. Bitzer, supra, which upheld a money award against a State under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. The distinction, as we carefully explained in that opinion, is that the Civil Rights Act was enacted pursuant to § 5 of the Fourteenth Amendment. We held that “the Eleventh Amendment, and the principle of state sovereignty which it embodies, see Hans v. Louisiana, . . . are necessarily limited” by the later Amendment,
> 1 — 1
It remains for me to consider whether the doctrine of waiver applies here. The basis for application of a waiver theory would be that, subsequent to enactment of CERCLA, Pennsylvania acted as the “owner and operator of... a facility,” 42 U. S. C. § 9607(a)(1), which latter term includes a “site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located,” §9601(9)(B); and that, by so acting, Pennsylvania voluntarily assumed the state liability for private suit that the legislation (assertedly) contains.
Parden is the only case in which we have held that the Federal Government can demand, as a condition to its permission of state action regulable under the Commerce
There are obvious and fatal difficulties in acknowledging such a power if no Commerce Clause power to abrogate state sovereign immunity exists. All congressional creations of private rights of action attach recovery to the defendant’s commission of some act, or possession of some status, in a field where Congress has authority to regulate conduct. Thus, all federal prescriptions are, insofar as their prospective application is concerned, in a sense conditional, and — to the extent that the objects of the prescriptions consciously engage in the activity or hold the status that produces liability-can be redescribed as invitations to “waiver.” For example, one is not liable for damages to private parties under the federal securities laws, see the Securities Exchange Act of 1934, § 10(b), 48 Stat. 891, 15 U. S. C. §78j(b), unless one participates in the activity of purchasing or selling securities affecting interstate commerce; and it is possible to describe that liability as not having been categorically imposed, but rather as being the result of a “waiver” of one’s immunity, in
* * *
The Court’s holding today can be applauded only by those who think state sovereign immunity so constitutionally insignificant that Hans itself might as well be abandoned. It is only the Court’s steadfast refusal to accept the fundamental structural importance of that doctrine, reflected in Hans and the other cases discussed above, that permits it to regard abrogation through Article I as an open question, and enables the plurality to fight the Hans-Atascadero battle all over again — but this time to win it — on the field of the Commerce Clause. It is a particularly unhappy victory, since instead of cleaning up the allegedly muddled Eleventh Amendment jurisprudence produced by Hans, the Court leaves that in
I would reverse the judgment of the Court of Appeals on the ground that federal courts have no power to entertain the present suit against the Commonwealth of Pennsylvania.
. In Petty v. Tennessee-Missouri Bridge Comm'n,
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.
Concurrence Opinion
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,
I
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 “háve 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,
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.
A
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.,
First, I note that of the four federal judges who examined this question under CERCLA, only one — Judge Higgin-botham in dissent in the Third Circuit’s initial consideration of this case,
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 redundant, because — by including the United States Government within the definition of persons — Congress had already stripped the Federal Government of its sovereign immunity.
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,
In all relevant respects, the portion of CERCLA on which the Court relies and the portion of the FLSA that was before us in jEmployees 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: “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.
B
The question then becomes whether, as the Court of Appeals found, United States v. Union Gas Co.,
“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
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
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),
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,
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
II
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
Accordingly, I would affirm the judgment of the Court of Appeals.
In an effort to avoid the force of this observation, the Court unleashes its oft-repeated statement that it relies on a “combination” of CERCLA and SARA to reach its conclusion. Ante, at 9, n. 2. The Court says that it is my “failure to recognize” this quality in its analysis that leads to my “confusion” about this case. Ibid.
I do not “fail to recognize” the Court’s approach — I reject it outright. The search for an “unmistakable statement” of abrogation is the search for unmistakable proof that Congress purposefully intended to set aside the States’ immunity. It is, therefore, the search for a historical fact that either was or was not true at the time Congress legislated. The Court’s “combination” analysis loses sight of this underlying theory behind orn-eases and, unfortunately, substantially undermines our precedents.
As I see it, the analysis must be this: either Congress abrogated the Eleventh Amendment when it enacted CERCLA — in which ease, § 9607(g) was superfluous when adopted — or Congress did not do so until it adopted SARA — which is a peculiar view, for reasons I explain in Part I-B below— or Congress did not have an intent to abrogate in either instance. Blur
This conclusion is also supported by the fact that in two other places in § 9607, where Congress wished a particular provision to apply to private persons and the United States and the States, it used the phrases “[n]o person (including the United States or any State) ...” and “any person (including the United States or any State).” See §§ 9607(i), (j). If Congress believed (as the Court contends that it did) that its inclusion of States within CERCLA’s definition of “person” was adequate to bring the States fully within the operation of § 9607, then the parenthetical phrases I quote here would have been wholly redundant.
Respondent approaches the policy question with the view that limitless state liability under CERCLA is the best means to achieve the statute’s ends. However, Congress clearly did not think so: it limited state
In addition, Congress also adopted in SARA a limitation on state and local government liability (to the Federal Government) for actions taken at toxic waste sites in response to emergencies. Pub. L. 99-499, § 107(d)(2), 100 Stat. 1629; 42 U. S. C. § 9607(d)(2) (1982 ed., Supp. IV). As the House Commerce Committee observed, this legislative exemption was designed to “remov[e] a disincentive for governments to respond to emergencies covered by CERCLA.” H. R. Rep. No. 99-253, pt. 1, p. 73 (1985). Thus, Congress did not view ever expanding governmental liability as the only way to achieve CERCLA’s ends.
Of course, even if policy reasons did counsel expansive state liability under CERCLA, our “clear statement” rule mandates that the choice is to be left to Congress — to resolve with an explicit declaration of its decision— and not to be implied by this Court.
A similar observation explains another section of SARA which the Court, ante, at 9-10, attempts to use as support for its reading of § 9601 (20)(D): § 9607(d)(2), which was enacted by Congress to encourage state and local governments to conduct emergency cleanups of waste sites by exempting them from potential liability for those cleanup activities. See 42 U. S. C. § 9607(d)(2) (1982 ed., Supp. IV); H. R. Conf. Rep. No. 99-962, pp. 203-204 (1986). About this amendment, the Court again suggests that “Congress need not exempt States from liability unless they would otherwise be liable.” Ante, at 10.
As with § 9601(20)(D), however, this limitation is best understood as a limit on state liability to the United States; it need not be read as an implicit statement that elsewhere the Eleventh Amendment has been waived for private lawsuits, in order to make it a vital part of the statute. Cf. Employees v. Missouri Dept, of Public Health and Welfare,
The Court also rejects this conclusion by saying that the inclusion of the liability-creating exception to the liability-limiting exception of §9601(20)(D) serves to enlighten us as to Congress’ “background understanding” of the effect of CERCLA in the first place: that States would be liable under § 9607. In this instance, and throughout, see n. 1, supra, the Court does not make it clear whether it is the SARA amendments of 1986, or CERCLA itself, that renders the States liable to suit under § 9607.
Yet the difference may be a significant one. Section 9607 is a strict-liability provision. See, e. g., New York v. Shore Realty Co.,
But under § 9601(20)(D), state and local governments are liable only if they have “caused or contributed” to a release of toxic materials. If § 9601(20)(D) is the source of the Eleventh Amendment waiver, and if, as the Court contends, its provisions are meant to address all state and local governments that own or operate toxic sites, then perhaps Congress abrogated the Eleventh Amendment only far enough to make States liable under this less stringent rule — whether they are voluntary or involuntary owners of a site.
. The Court goes on to observe, however, that even if this interpretation is accepted as explaining almost all of the last sentence of § 9601(20)(D), it still does not account for Congress “stress[ing] that States would be liable ‘to the same extent ... as any nongovernmental entity,’” ante, at 11. The Court contends that the first part of the last sentence of § 9601(20)(D) Ci. e., “such a State . . . shall be subject”) would have been enough to accomplish the end of merely making involuntary-owner States liable to actions by the United States; the addition of the phrase “as any nongovernmental entity” means that Congress must have intended something more. To this I have three responses.
First, Congress may have added the phrase in which the Court puts so much stock (“as any nongovernmental entity”) as a statutory “exclamation
Second, Congress could have used the phrase “as any nongovernmental entity” to insure that local governments that cause discharges at involuntarily acquired sites would be liable under §9607. Congress may have merely wanted to be forceful in using its pre-emptive power to set aside any state-law immunity doctrines for such local government entities, without necessarily going so far as to execute an “unmistakably clear” abrogation of state government immunity. Cf. Quern v. Jordan,
One additional observation concerning SARA may be made. At the time SARA was enacted, one Court of Appeals —the Third Circuit, in its initial decision in this case, United States v. Union Gas Co.,
The Court’s view of SARA is that, in enacting § 9601(20)(D), Congress had an “unmistakably clear” intent to amend CERCLA so as to reverse the force of these holdings finding a lack of abrogation in CERCLA’s original text. Yet just eight days after it adopted SARA, Congress enacted the Rehabilitation Act Amendments of 1986, Pub. L. 99-506, 100 Stat. 1807, which included a provision setting aside the force of our holding in Atas-cadero State Hospital v. Scanlon,
While I would not go so far as to hold that Congress must use these precise words (i. e., make reference to the Eleventh Amendment) before it will be deemed to have abrogated States’ immunity, the words used by Congress to set aside Atascadero are legions more “unmistakably clear” than the tangled mess in § 9601(20)(D), which the Court concludes set aside the then-existing case law with respect to CERCLA.
Of course, I do not believe that only the “magic words” found in the Rehabilitation Act amendment will suffice to achieve abrogation. Cf. ante, at 13, n. 4. Instead, my view (based on our prior decisions in Atascadero and Welch v. Texas Dept. of Highways and Public Transportation,
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, Hans v. Louisiana,
Dissenting Opinion
dissenting.
I agree with Justice Sc alia 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.