UNITED STATES DEPARTMENT OF ENERGY v. OHIO ET AL.
No. 90-1341
Supreme Court of the United States
Argued December 3, 1991—Decided April 21, 1992*
503 U.S. 607
*Together with No. 90-1517, Ohio et al. v. United States Department of Energy, also on certiorari to the same court.
James A. Feldman argued the cause for petitioner in No. 90-1341 and respondent in No. 90-1517. With him on the briefs were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Robert L. Klarquist, and Jacques B. Gelin.
Jack A. Van Kley, Assistant Attorney General of Ohio, argued the cause for respondents in No. 90-1341 and petitioners in No. 90-1517. With him on the brief were Lee Fisher, Attorney General, and Timothy J. Kern and Terrence S. Finn, Assistant Attorneys General.†
†Briefs of amici curiae were filed for the State of California et al. by Gale A. Norton, Attorney General of Colorado, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Martha E. Rudolph, Cynthia M. Vagelos, and Mary Capdeville, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Roderick E. Walston, Chief Assistant Attorney General, Theodora Berger and R. H. Connett, Senior Assistant Attorneys General, Edwin F. Lowry, Deputy Attorney General, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Paige Murphy-Young, Assistant Attorney General, Winston Bryant, Attorney General of Arkansas, Richard Blumenthal, Attorney General of Connecticut, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Bonnie J. Campbell, Attorney General of Iowa, Frederic J. Cowan, Attorney General of Kentucky, Michael E. Carpenter, Attorney General of Maine, Dennis J. Harnish, Assistant Attorney General, J. Joseph Curran, Jr., Attorney General of Maryland, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, T. Travis Medlock, Attorney General of South Carolina, Charles W. Burson, Attorney General of Tennessee, Michael D. Ferrigan, Deputy Attorney General, Dan Morales, Attorney General of Texas, Thomas Edwards, Assistant Attorney General, Paul Van Dam, Attorney
JUSTICE SOUTER delivered the opinion of the Court.
The question in these cases is whether Congress has waived the National Government‘s sovereign immunity from liability for civil fines imposed by a State for past violations of the Clean Water Act (CWA), 86 Stat. 816, as amended,
I
The CWA prohibits the discharge of pollutants into navigable waters without a permit. Section 402, codified at
This litigation began in 1986 when respondent State of Ohio sued petitioner Department of Energy (DOE) in Federal District Court for violations of state and federal pollution laws, inсluding the CWA and RCRA, in operating its uranium-processing plant in Fernald, Ohio. Ohio sought, among other forms of relief, both state and federal civil penalties for past violations of the CWA and RCRA and of state laws enacted to supplant those federal statutes. See, e. g., Complaint ¶ 64 (seeking penalties for violations of state law and of regulations issued pursuant to RCRA); id., ¶ 115 (seeking penalties for violations of state law and of CWA).1 Before the District Court ruled on DOE‘s motion for dismissal, the parties proposed a consent decree to settle all but one substantive claim,2 and Ohio withdrew all outstanding claims for relief except its request for civil penalties for DOE‘s alleged past violations. See Consent Decree Between DOE and Ohio, App. 63. By a contemporaneous stipulation, DOE and Ohio agreed on the amount of civil penalties DOE will owe if it is found liable for them, see Stipulation Between DOE and Ohio, id., at 87. The parties thus left for determination under the motion to dismiss only the issue we consider today: whether Congress has waived the National Government‘s sovereign immunity from liability for civil fines imposed for past failure to comply
DOE admits that the CWA and RCRA obligate a federal polluter, like any other, to obtain permits from EPA or the state permitting agency, see Brief for Petitioner DOE 24 (discussing CWA); id., at 34-40 (discussing RCRA).3 DOE also concedes that the CWA and RCRA render federal agencies liable for fines imposed to induce them to comply with injunctions or other judicial orders designed to modify behavior prospectively, which we will speak of hereafter as “coercive fines.” See id., at 19-20, and n. 10; see also n. 14, infra. The parties disagree only on whether the CWA and RCRA, in either their “federal-facilities”4 or “citizen-suit”5 sections, waive federal sovereign immunity from liability for fines,
The United States Distriсt Court for the Southern District of Ohio held that both statutes waived federal sovereign immunity from punitive fines, by both their federal-facilities and citizen-suit sections. 689 F. Supp. 760 (1988). A divided panel of the United States Court of Appeals for the Sixth Circuit affirmed in part, holding that Congress had waived immunity from punitive fines in the CWA‘s federal-facilities section and RCRA‘s citizen-suit section, but not in RCRA‘s federal-facilities section. 904 F. 2d 1058 (1990).6 Judge Guy dissented, concluding that neither the CWA‘s federal-facilities section nor RCRA‘s citizen-suit section sufficed to provide the waiver at issue. Id., at 1065-1069.
In No. 90-1341, DOE petitioned for review insofar as the Sixth Circuit found any waiver of immunity from punitive fines, while in No. 90-1517, Ohio cross-petitioned on the holding that RCRA‘s federal-facilities section failed to effect such a waiver.7 We consolidated the two petitions and granted certiorari, 500 U. S. 951 (1991).8
We start with a common rule, with which we presume congressional familiarity, see McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991), that any waiver of the National Government‘s sovereign immunity must be unequivocal, see United States v. Mitchell, 445 U. S. 535, 538-539 (1980). “Waivers of immunity must be ‘construed strictly in favor of the sovereign,’ McMahon v. United States, 342 U. S. 25, 27 (1951), and not ‘enlarge[d] . . . bеyond what the language requires.’ Eastern Transportation Co. v. United States, 272 U. S. 675, 686 (1927).” Ruckelshaus v. Sierra Club, 463 U. S. 680, 685-686 (1983). By these lights we examine first the two statutes’ citizen-suit sections, which can be treated together because their relevant provisions are similar, then the CWA‘s federal-facilities section, and, finally, the corresponding section of RCRA.
A
So far as it concerns us, the CWA‘s citizen-suit section reads that
“any citizen may commence a civil action on his own behalf—
“(1) against any person (including . . . the United States . . .) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . .
“. . . . .
“The district courts shall have jurisdiction . . . to enforce such an effluent standard or limitation, or such an order . . . as the case may be, and to apply any appro-
Court of Appeals appears to have considered whether RCRA‘s citizen-suit section constitutes such a waiver.
priate civil penalties under [
33 U. S. C. § 1319(d) ].”33 U. S. C. § 1365(a) .
The relevant part of the corresponding section of RCRA is similar:
“[A]ny person may commence a civil action on his own behalf —
“(1)(A) against any person (including . . . the United States) . . . who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter . . .
“(B) against any person, including the United States . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .
“. . . . .
“. . . The district court shall have jurisdiction . . . to enforce the permit, standard, regulation, condition, requirement, prohibition, or order, referred to in paragraph (1)(A), to restrain any person who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste referred to in paragraph (1)(B), to order such person to take such othеr action as may be necessary, or both, . . . and to apply any appropriate civil penalties under [
42 U. S. C. §§ 6928(a) and(g) ].”42 U. S. C. § 6972(a) .
A State is a “citizen” under the CWA and a “person” under RCRA,9 and is thus entitled to sue under these provisions. Ohio and its amici argue that by specifying the United States as an entity subject to suit and incorporating the civil-
The effect of incorporating each statute‘s civil-penalties section into its respective citizen-suit section is not, however, as clear as Ohio claims. The incorporations must be read as encompassing all the terms of the penalty provisions, including their limitations, see, e. g., Engel v. Davenport, 271 U. S. 33, 38 (1926) (adoption of earliеr statute by reference “makes it as much a part of the later act as though it had been incorporated at full length“); see also 2B N. Singer, Sutherland on Statutory Construction § 51.08 (5th rev. ed. 1992), and significant limitations for present purposes result from restricting the applicability of the civil-penalties sections to “person[s].”10 While both the CWA and RCRA define “person” to cover States, subdivisions of States, municipalities, and interstate bodies (and RCRA even extends the term to cover governmental corporations),11 neither statute defines “person” to include the United States.12 Its omission has to be
Against this reasoning, Ohio argues that the incorporated penalty provisions’ exclusion of the United States is overridden by the National Government‘s express inclusion as а “person” by each of the citizen-suit sections. There is, of course, a plausibility to the argument. Whether that plausibility suffices for the clarity required to waive sovereign immunity is, nonetheless, an issue we need not decide, for the force of Ohio‘s argument wanes when we look beyond the citizen-suit sections to the full texts of the respective statutes.
What we find elsewhere in each statute are various provisions specially defining “person” and doing so expressly for purposes of the entire section in which the term occurs. Thus, for example, “[f]or the purpose of this [CWA] section,”
however, applies only “[f]or purposes of this Act,” ibid., which refers to the Medical Waste Tracking Act of 1988 itself, see 102 Stat. 2950.
This textual analysis passes the test of giving effect to all the language of the citizen-suit sections. Those sections’ incorporations of their respective statutes’ civil-penalties sections will have the effect of authorizing punitive fines when a polluter other than the United States is brought to court by a citizen, while the sections’ explicit authorizations for suits against the United States will likewise be effective, since those sections concededly authorize coercive sanctions against the National Government.15
A clear and unequivocal waiver of anything more cannot be found; a broader waiver may not be inferred, see Ruckel-
B
The relevant portion of the CWA‘s federal-facilities section provides that
“[e]ach department, agency, or instrumentality of the . . . Federal Government . . . shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner . . . as any nongovernmental entity . . . . The preceding sentence shall apply (A) to any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever), (B) to the exercise of any Federal, State or local administrative authority, and (C) to any process and sanction, whether enforced in Federal, State, or local courts or in any other manner . . . . [T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court.”
33 U. S. C. § 1323(a) .
Ohio rests its argument for waiver as to punitive fines on two propositions: first, that the statute‘s use of the word “sanction” must be understood to encompass such fines, see Brief for Respondent Ohio 26-29; and, second, with respect to the fines authorized under a state permit program approved by EPA, that they “aris[e] under Federal law” despite their genesis in state statutes, and are thus within the scope of the “civil penalties” covered by the congressional waiver, id., at 29-35.
1
Ohio‘s first proposition is mistaken. As a general matter, the meaning of “sanction” is spacious enough to cover not only what we have called punitive fines, but coercive ones as well, and use of the term carries no necessary implication that a reference to punitive fines is intended. One of the two dictionaries Ohio itself cites reflects this breadth. See Black‘s Law Dictionary 1341 (6th ed. 1990) (defining “sanction” as a “[p]enalty or other mechanism of enforcement used to provide incentives for obedience with the law or with rules and regulations. That part of a law which is designed to secure enforcеment by imposing a penalty for its violation or offering a reward for its observance“). Ohio‘s other such source explicitly adopts the coercive sense of the term. See Ballentine‘s Law Dictionary 1137 (3d ed. 1969) (defining sanction in part as “[a] coercive measure“).
Beyond the dictionaries, examples of usage in the coercive sense abound. See, e. g., Penfield Co. of Cal. v. SEC, 330 U. S. 585, 590 (1947) (fines and imprisonment imposed as “coercive sanctions” when imposed to compel target “to do what the law made it his duty to do“); Hicks v. Feiock, 485 U. S. 624, 633-634, n. 6 (1988) (“sanction” in Penfield was civil because it was conditional; contemnor could avoid “sanction” by agreeing to comply with discovery order); Fed. Rule Civ. Proc. 37(b) (describing as “sanctions” various steps district court may take in response to noncompliance with discovery orders, including holding recalcitrant deponent in contempt); United States v. Westinghouse Elec. Corp., 648 F. 2d 642, 649 (CA9 1981) (discussing “sanctions,” imposed pursuant to Fed. Rule Civ. Proc. 37(b), consisting of fine for each day litigant remained in noncompliance with District Court‘s discovery order); Latrobe Steel Co. v. United Steelworkers of America, Local 1537, 545 F. 2d 1336, 1344 (CA3 1976) (“Coercive sanctions . . . look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the
The term‘s context, of course, may supply a clarity that the term lacks in isolation, see, e. g., Shell Oil Co. v. Iowa Dept. of Revenue, 488 U. S. 19, 26 (1988). It tends to do so here, but once again the clarity so found cuts against Ohio‘s position. The word “sanction” appears twice in
2
The last relevant passage of
The role of the first modifier is problematical, however. On the one hand, it tugs toward a more expansive reading of “civil penalties.” If by using the phrase “civil penalties arising under Federal law” Congress meant nothing more than coercive fines arising under federal law, it would have been simpler to describe all such penalties as imposed to enforce an order or process, whether of a local, state, or federal court. Thus, the first modifier suggests that the civil penalties arising under federal law may indeed include the punitive along with the coercive. Nevertheless, a reading expansive enough to reflect a waiver as to punitive fines would raise a new and troublesome question about the source of legal authority to impose such a fine. As far as federal law is concerned, the only available source of authority to impose punitive fines is the civil-penalties section,
Ohio urges us to find a source of authority good against the United States by reading “arising under Federal law” to include penalties prescribed by state statutes approved by EPA and supplanting the CWA. Ohio argues for treating a state statute as providing penalties “arising under Federal law” by stressing the complementary relationship between
The case for such pessimism is not, however, self-evident. To be sure, an agency of the Government may break the law where it might have complied voluntarily if it had faced the prospect of punitive fines for past violations. But to say that its “compliance cannot be . . . accomplished” without such fines is to assume that without sanctions for past conduct a federal polluter can never be brought into future compliance, that an agency of the National Government would defy an injunction backed by coercive fines and even a threat of personal commitment. The position seems also to ignore the fact that once such fines start running they can be every dollar as onerous as their punitive counterparts; it could be a very expensive mistake to plan on ignoring the law indefinitely on the assumption that contumacy would be cheap.
Nor does the complementary relationship between state and federal law support Ohio‘s claim that state-law fines thereby “arise under Federal law.” Plain language aside, the far more compelling interpretative case rests on the best known statutory use of the phrase “arising under federal law,” appearing in the grant of federal-question jurisdiction to the courts of the United States. See
Since Ohio‘s argument for treating state-penalty provisions as arising under federal law thus fails, our reading of the last-quoted sentence from
We do, however, have a response satisfactory for sovereign immunity purposes to the tension between a proviso suggesting an apparently expansive but uncertain waiver and its antecedent text that evinces a narrower waiver with greater clarity. For under our rules that tension is resolved by the requirement that any statement of waiver be unequivocal: as against the clear waiver for coercive fines the indication of a waiver as to those that are punitive is less certain. The rule of narrow construction therefore takes the waiver no further than the coercive variety.
C
We consider, finally, the federal-facilities section of
shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural (including any requirement for permits or reporting or any provisions for injunctive relief and such sanctions as may be imposed by a court to enforce such relief) . . . in the same manner, and to the same extent, as any person is subject to such requirements. . . . Neither the United States, nor any agent, employee, or officer thereof, shall be immune or exempt from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief.
42 U. S. C. § 6961 .
Ohio and its amici stress the statutory subjection of federal facilities to all requirements, which they would have us read as an explicit and unambiguous waiver of federal sovereign immunity from punitive fines. We, however, agree with the Tenth Circuit that all . . . requirements can reasonably be interpreted as including substantive standards and the means for implementing those standards, but exclud
We have already observed that substantive requirements can be enforced either punitively or coercively, and the Tenth Circuit‘s understanding that Congress intended the latter finds strong support in the textual indications of the kinds of requirements meant to bind the Government. Significantly, all of them refer either to mechanisms requiring review for substantive compliance (permit and reporting requirements) or to mechanisms for enforcing substantive compliance in the future (injunctive relief and sanctions to enforce it). In stark contrast, the statute makes no mention of any mechanism for penalizing past violations, and this absence of any example of punitive fines is powerful evidence that Congress had no intent to subject the United States to an enforcement mechanism that could deplete the federal fisc regardless of a responsible officer‘s willingness and capacity to comply in the future.
The drafters’ silence on the subject of punitive sanctions becomes virtually audible after one reads the provision‘s final sentence, waiving immunity from any process or sanction of any State or Federal Court with respect to the enforcement of any such injunctive relief. The fact that the drafters’ only specific reference to an enforcement mechanism described sanction as a coercive means of injunctive enforcement bars any inference that a waiver of immunity from requirements somehow unquestionably extends to punitive fines that are never so much as mentioned.17
The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, concurring in part and dissenting in part.
These cases concern a uranium-processing plant which, the Government concedes, has contaminated the soil, air and surface waters of Fernald, Ohio, with radioactive materials, exceeded certain of the effluent limitations set forth in its water pollution рermit, and failed to construct portions of the water pollution control facilities in accordance with the permit. Answer ¶¶ 28, 33.
The situation at the Fernald plant is not an aberration. The Department of Energy (DOE) estimates that taxpayers may pay $40 to $70 billion during the next 20 years to clean
In an effort to compel Government agencies to adhere to the environmental laws under which private industry must operate, Congress waived sovereign immunity for civil penalties in the federal facilities and citizen suit provisions of the
I
It is axiomatic that a statute should be read as a whole. 2A N. Singer, Sutherland on Statutory Construction § 46.05 (5th ed. 1992). When the federal facilities and citizen suit
The federal facilities provision,
The majority devotes three pages of its opinion to a tortured discussion of whether subjecting the Government to process and sanction encompasses liability for civil penalties. See ante, at 621-623. Rаther than engaging in these analytic gymnastics, the Court needed to do nothing more than read the rest of the federal facilities provision. It clearly states:
[T]he United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court.
33 U. S. C. § 1323(a) .
Obviously, Congress intended the United States to be liable for civil penalties. The plain language of the statute says so. Therefore, the broad term sanctions used earlier in the same subsection must include these penalties. Any other reading would contravene the ancient and sound rule of construction that each word in a statute should, if possible, be given effect. Crandon v. United States, 494 U. S. 152, 171 (1990) (SCALIA, J., concurring in judgment); Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U. S. 237, 249 (1985); Colautti v. Franklin, 439 U. S. 379, 392 (1979).
The question, then, is not whether Congress has waived federal immunity for civil penalties. The waiver here unambiguously reached those claims for civil penalties arising
A
Ohio contends that it is entitled to recover civil penalties on two different claims: the first brought under the CWA itself, through its citizen suit provision,
1
First, the CWA waives sovereign immunity for civil penalty claims brought under the Act‘s citizen suit clause.
Nevertheless, the majority concludes that this straightforward approach is not sufficient to waive immunity. The Court latches onto the fact that the enforcement provision does not include its own definition of person and that the CWA‘s general purpose definition of the word person does not include the United States.
To conclude otherwise is to resort to ingenuity to create ambiguity that simply does not exist in this stаtute. Rothschild v. United States, 179 U. S. 463, 465 (1900).
2
The CWA also waives immunity for civil penalties arising under state laws enacted to allow local administration of the CWA permit program. The majority rejects this proposition by relying on cases in which the Court has held that state laws approved by the Federal Government do not arise under federal law. See ante, at 625-626. But these cases are inapposite because the CWA regime goes far beyond simple federal approval of state action. Instead, the Act establishes a distinctive variety of cooperative federalism.
As we recently explained: The Clean Water Act anticipates a partnership between the States and the Federal Government. . . . Arkansas v. Oklahoma, ante, at 101. To effectuate this partnership, the CWA authorizes the Environmental Protection Agency (EPA) to issue pollution discharge permits,
Under this unusual statutory structure, compliance with a state-administered permit is deemed compliance with the CWA.
Given the structure of the CWA, it is apparent that the arising under limitation on the waiver of sovereign immunity was not intended to protect the Federal Government from exposure to penalties under state laws that merely provide for the administration of a CWA permit system. Instead, the limitation shields the Government from liability under state laws that have not been subject to initial EPA review and ongoing agency supervision.5 Only by resorting
B
Because of its determination to find that civil penalties are not available against the Government, the majority paints itself into a corner. The Court acknowledges that its distortion of the statute leaves the phrase civil penalties arising under Federal law devoid of meaning. See ante, at 626-627. But rather than reading the CWA as Congress wrote it and recognizing that it effects a waiver of immunity, the majority engages in speculation about why Congress could not have meant what it unambiguously said:
Perhaps it used [civil penalties arising under federal law] just in case some later amendment might waive the Government‘s immunity from punitive sanctions. Perhaps a drafter mistakenly thought that liability for such sanctions had somehow been waived already. Perhaps someone was careless. Ibid.
It is one thing to insist on an unequivocal waiver of sovereign immunity. It is quite another to impute to Congress a desire for incoherence as a basis for rejecting an exрlicit waiver. Keifer & Keifer v. Reconstruction Finance Corporation, 306 U. S. 381, 394 (1939); Franchise Tax Bd. of California v. Postal Service, 467 U. S. 512, 524 (1984). Cf. Canadian Aviator, supra, at 225. That is what the majority does today. Surely the interest in requiring the Congress
The unambiguous language of the federal facilities and citizen suit provisions of the CWA clearly contemplate a waiver of immunity as to suit for civil damages, and once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to ‘assume the authority to narrow the waiver that Congress intended.’ Ardestani v. INS, 502 U. S. 129, 137 (1991), quoting United States v. Kubrick, 444 U. S. 111, 118 (1979); Irwin v. Department of Veterans Affairs, 498 U. S. 89, 94 (1990).
II
Turning to the RCRA, I agree with the majority and with the Court of Appeals that the RCRA federal facilities provision does not effect an unambiguous waiver of immunity from civil penalties,
However, I would find a waiver under RCRA‘s citizen suit provision,
III
The job of this Court is to determine what a statute says, not whether it could have been drafted more artfully. In these cases, the federal facilities and citizen suit provisions of
Notes
States may sue the United States under the citizen-suit sections. See
(1) Adopting or enforcing requirements which are more stringent or more extensive than those required under this part;
(2) Operating a program with a greater scope of coverage than that required under this part. If an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the Federally approved program.