Pennsylvania v. Union Gas Co.

No. 87-1241

Argued October 31, 1988

Decided June 15, 1989

491 U.S. 1

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Syllabus



Respondent's predecessors operated a coal gasification plant, which

produced coal tar as a byproduct, along a creek in Pennsylyania. 

Shortly after acquiring easements in the property along the creek, and

while excavating to control flooding, the State struck a large deposit

of coal tar which began to seep into the creek.  Finding the tar to be a

hazardous substance, the Environmental Protection Agency declared the

site the Nation's first Superfund site, and the State and the Federal

Government together cleaned up the area.  The Government reimbursed the

State for cleanup costs and sued respondent to recoup those costs under 

104 and 106 of the Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (CERCLA), 42 U.S.C.  9604 and 9606, claiming

that respondent was liable because it and its predecessors had deposited

the tar in the ground.  Respondent filed a third-party complaint against

the State, asserting, inter alia, that it was liable as an "owner and

operator" of the site under  107(a) of CERCLA.  The District Court

dismissed this complaint on the ground that the State's Eleventh

Amendment immunity barred the suit.  The Court of Appeals affirmed,

finding no clear expression of intent to hold States liable in monetary

damages under CERCLA.  However, after this Court vacated that decision

and remanded for reconsideration in light of subsequent amendments to

CERCLA made by the Superfund Amendments and Reauthorization Act of 1986

(SARA), the Court of Appeals held that the statute's amended language

clearly rendered States liable for [491 U.S. 2] monetary damages, and

that Congress had the power to do so under the Commerce Clause.



Held:  The judgment is affirmed, and the case is remanded.



832 F.2d 1343, affirmed and remanded.



JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts

I and II, concluding that CERCLA, as amended by SARA, clearly expresses

an intent to hold States liable in damages in federal court.  Pp. 7-13.



(a) The statute's plain language authorizes such suits.  Section

101(21)'s express inclusion of States within its definition of

"persons," and  101(20)(D)'s plain statement that state and local

governments are to be considered "owners or operators" in all but very

narrow circumstances, together establish that Congress intended that

States be liable for cleanup costs under  107 along with everyone else

responsible for creating hazardous waste sites.  The fact that 

101(20)(D) uses language virtually identical to  120(a)(1)'s waiver of

the Federal Government's sovereign immunity is highly significant,

demonstrating that Congress must have intended to override the States'

immunity from suit.  This conclusion is not contradicted by 

101(20)(D)'s exclusion of States from the category of "owners and

operators" when they acquire ownership or control of a site

involuntarily by virtue of their function as sovereign, by  107(d)(2)'s

general exemption of States from liability for actions taken during

cleanup of contamination generated by other persons' facilities, or by

42 U.S.C.  9659(a)(1)'s express reservation of States' Eleventh

Amendment rights in citizen suits, since those provisions would be

unnecessary unless suits against States were otherwise permitted by the

statute.  Pp. 7-10.



(b) Pennsylyania's arguments to the contrary are not persuasive.  If

accepted, the contention that CERCLA creates state liability only to the

Federal Government would render meaningless the  101(20)(D) language

making States liable "to the same extent . . . as any nongovernmental

entity, including liability for [damages]," since no explicit

authorization is necessary before the Federal Government may sue a State

for damages.  Moreover,  101(20)(D) obviously explains and qualifies the

entire definition of "owner or operator," and does not, as Pennsylyania

suggests, render States liable only if they acquire property

involuntarily and then contribute to contamination there.  Nor can it be

decisive that  101(20)(D) mentions local governments, which do not enjoy

immunity, in the same breath as States, since it was natural for

Congress to discuss governmental entities together.



JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and

JUSTICE STEVENS, concluded in Part III that Congress has [491 U.S. 3]

the authority to render States liable for money damages in federal court

when legislating pursuant to the Commerce Clause.



(a) This Court's decisions indicate that Congress has the authority to

override States' immunity when legislating pursuant to the Commerce

Clause.  See, e.g., Parden v. Terminal Railway of Alabama Docks Dept.,

377 U.S. 184; Employees v. Missouri Dept. of Public Health and Welfare,

411 U.S. 279.  This conclusion is confirmed by a consideration of the

special nature of the plenary power conferred by the Clause, which

expands federal power by taking power away from the States.  Cf.

Fitzpatrick v. Bitzer, 427 U.S. 445,  Ex parte Virginia, 100 U.S. 339,

346.



(b) By giving Congress plenary authority to regulate commerce, the

States relinquished their immunity where Congress finds it necessary, in

exercising this authority, to render them liable.  Since the commerce

power can displace State regulation, a conclusion that Congress may not

create a damages remedy against the States would sometimes mean that no

one could do so.  Indeed, this Court has recognized that the general

problem of environmental harm is often not susceptible to a local

solution.  See Illinois v. Milwaukee, 406 U.S. 91; Philadelphia v. New

Jersey, 437 U.S. 617.  Moreover, in many situations, it is only money

damages that will effectuate Congress' legitimate Commerce Clause

objectives.  Here, for example, after failing to solve the hazardous

substances problem through preventive measures, Congress chose to extend

liability to everyone potentially responsible for contamination, and,

because of the enormous costs of cleanups and the finite nature of

Government resources, sought to encourage private parties to help out by

allowing them to recover for their own cleanup efforts.  There is no

merit to Pennsylyania's contention that the allowance of damages suits

by private citizens against unconsenting States impermissibly expands

the jurisdiction of federal courts beyond the bounds of Article III,

since, by ratifying the Constitution containing the Commerce Clause, the

States consented to suits against them based on congressionally created

causes of action.  Cf. Fitzpatrick v. Bitzer, supra.



JUSTICE WHITE agreed with the plurality's conclusion that Congress has

the authority under Article I to abrogate the States' Eleventh Amendment

immunity, but disagreed with the reasoning supporting that conclusion.



BRENNAN, J., announced the judgment of the Court and delivered the

opinion of the Court with respect to Parts I and II, in which MARSHALL,

BLACKMUN, STEVENS, and SCALIA, JJ., joined, and an opinion with respect

to Part III, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined. 

STEVENS, J., filed a concurring opinion, post,   SCALIA, J., [491 U.S.

4] filed an opinion concurring in part and dissenting in part, in Parts

II, III, and IV of which REHNQUIST, C.J., and O'CONNOR and KENNEDY, JJ.,

joined, post,   WHITE, J., filed an opinion concurring in the judgment

in part and dissenting in part, in Part I of which REHNQUIST, C.J., and

O'CONNOR and KENNEDY, JJ., joined, post,   O'CONNOR, J., filed a

dissenting opinion, post,  [491 U.S. 5] BRENNAN, J., lead opinion



JUSTICE BRENNAN 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 JUSTICE MARSHALL, JUSTICE BLACKMUN, and

JUSTICE STEVENS join.



This case presents the questions whether 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. No. 99-499, 100 Stat. 1613, permits 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 Commerce 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,

Pennsylyania, which produced coal tar as a byproduct.  The plant was

dismantled around 1950.  A few years later, Pennsylyania took part in

major flood-control efforts along the creek.  In 1980, shortly after

acquiring easements to the property along the creek, the Commonwealth

struck a large deposit of coal tar while excavating the creek.  The coal

tar began to seep into the creek, and the [491 U.S. 6] Environmental

Protection Agency determined that the tar was a hazardous substance and

declared the site the Nation's first emergency Superfund site.  Working

together, Pennsylyania and the Federal Government cleaned up the area,

and the Federal Government reimbursed the State for cleanup costs of

$720,000.



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 Pennsylyania, 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 Pennsylyania'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., 792 F.2d 372

(1986).



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.  479 U.S. 1025 (1987).  On remand, the Court of Appeals held

that the language of CERCLA, as amended, clearly rendered States liable

for monetary damages, and that Congress had the power to do so when

legislating pursuant to the Commerce Clause.  United States v. Union Gas

Co., 832 F.2d 1343 (1986).  We granted certiorari, 485 U.S. 958 (1988),

and now affirm. [491 U.S. 7] II



In Hans v. Louisiana, 134 U.S. 1 (1890), this Court held that the

principle of sovereign immunity reflected in the Eleventh Amendment

rendered the States immune from suits for monetary damages in federal

court even where jurisdiction was premised on the presence of a federal

question.  Congress may override this immunity when it acts pursuant to

the power granted it under  5 of the Fourteenth Amendment, but it must

make its intent to do so "unmistakably clear."  See Atascadero State

Hospital v. Scanlon, 473 U.S. 234, 242 (1985).  Before turning to the

question whether Congress possesses the same power of abrogation under

the Commerce Clause, we must first decide whether CERCLA, as amended by

SARA, clearly expresses an intent to hold States liable in damages for

conduct described in the statute.  If we decide that it does not, then

we need not consider the constitutional question.



CERCLA both provides a mechanism for cleaning up hazardous waste sites,

42 U.S.C.  9604, 9606 (1982 ed. and Supp. 1V), 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 [491 U.S. 8] sovereign. 9601(20)(D).  However,  101(20)(D)

continues, [t]he 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. Ibid.  The express

inclusion of States within the statute's definition of "persons," and

the plain statement that States are to be considered "owners or

operators" in all but very narrow circumstances, together convey a

message of unmistakable clarity:  Congress intended that States be

liable along with everyone else for cleanup costs recoverable under

CERCLA.  Section 101(20)(D) is an express acknowledgment of Congress'

background understanding -- evidenced first in its inclusion of States

as "persons" -- that States would be liable in any circumstance

described in  107(a) from which they were not expressly excluded.  The

"exclusion" furnished to the States in  101(20)(D) would be unnecessary

unless such a background understanding were at work. [491 U.S. 9]



The plain language of another section of the statute reinforces this

conclusion.  Section 107(d)(2) of CERCLA, as set forth in 42 U.S.C. 

9607(d)(2) (1982 ed., Supp.IV), headed "State and local governments,"

provides: No State or local government shall be liable under this

subchapter for costs or damages as a result of actions taken in response

to an emergency created by the release or threatened release of a

hazardous substance generated by or from a facility owned by another

person.  This paragraph shall not preclude liability for costs or

damages as a result of gross negligence or intentional [491 U.S. 10]

misconduct by the State or local government. This section is, needless

to say, an explicit recognition of the potential liability of States

under this statute; Congress need not exempt States from liability

unless they would otherwise be liable.  Similarly, unless suits against

the States were elsewhere permitted, Congress would have had no reason

to specify that citizen suits -- as opposed to the kind of lawsuit

involved here -- could be brought "against any person (including the

United States and any other governmental instrumentality or agency, to

the extent permitted by the eleventh amendment to the Constitution)." 

42 U.S.C.  9659(a)(1).  The reservation of States' rights under the

Eleventh Amendment would be unnecessary if Congress had not elsewhere in

the statute overridden the States' immunity from suit.



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 "`unequivoca[1] express[ion]'" of the

Federal Government's waiver of its own sovereign immunity, United States

v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. King, 395

U.S. 1, 4 (1969), since we cannot imagine any other plausible

explanation for this unqualified language.  It can be no coincidence

that, in describing the potential liability of the States in 

101(20)(D), Congress chose language mirroring that of  120(a)(1).  In

choosing this mirroring language in  101(20)(D), therefore, Congress

must have intended to override the States' immunity from suit, just as

it waived the Federal Government's immunity in  120(a)(1). [491 U.S. 11]



This cascade of plain language does not, however, impress Pennsylyania. 

In the face of such clarity, the Commonwealth bravely insists that

CERCLA merely makes clear that States may be liable to the United

States, not that they may be liable to private entities such as Union

Gas.  The Commonwealth relies principally on this Court's decision in

Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279

(1973).  We held there that Congress had not abrogated the States'

immunity from suit in the Fair Labor Standards Act.  Nevertheless, we

found, the statute's explicit inclusion of state-run hospitals among

those to whom the law would apply was not meaningless:  since the

statute allowed the United States to sue, the inclusion of States within

the entities covered by the statute served to permit suits by the United

States against the States.  Id. at



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,

380 U.S. 128, 140-141 (1965), we recognized that the Constitution

presents no barrier to lawsuits brought by the United States against a

State.  For purposes of such lawsuits, States are naturally just like

"any nongovernmental entity"; there are no special rules dictating when

they may be sued by the Federal Government, nor is there a stringent

interpretive principle guiding construction of statutes that appear to

authorize such suits.  Indeed, this Court has gone so far as to hold

that no explicit statutory authorization is necessary before the Federal

Government may sue a State.  See United States v. California, [491 U.S.

12] 332 U.S. 19, 26-28 (1947). Unless Congress intended to permit suits

brought by private citizens against the States, therefore, the highly

specific language of  101(20)(D) was unnecessary.



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 Pennsylyania 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 [491 U.S. 13] just that part of the definition

applicable to involuntary owners.



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).  Pennsylyania

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. III



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. 

Pennsylyania argues that the principle of sovereign immunity found in

the Eleventh [491 U.S. 14] Amendment precludes such congressional

authority.  We do not agree. 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.,

377 U.S. 184 (1964).  There, in responding to a state-owned railway's

argument that Congress had no authority to subject the railway to suit,

we concluded that "the States surrendered a portion of their sovereignty

when they granted Congress the power to regulate commerce," id. at 191,

and that, [b]y empowering Congress to regulate commerce, . . . the

States necessarily surrendered any portion of their sovereignty that

would stand in the way of such regulation, id. at 192.  Although it is

true that we have referred to Parden as a case involving a waiver of

immunity, Fitzpatrick v. Bitzer, 427 U.S. 445, 451 (1976), the

statements quoted above lay a firm foundation for the argument that

Congress' authority to regulate commerce includes the authority directly

to abrogate States' immunity from suit.



The path continues in Employees v. Missouri Dept. of Public Health and

Welfare, 411 U.S. at 286, in which we again acknowledged, quoting

Parden, that "`the States surrendered a portion of their sovereignty

when they granted Congress the power to regulate commerce.'"  Although

we declined "to extend Parden to cover every exercise by Congress of its

commerce power," we did so in Employees itself only because the purpose

of Congress to give force to the Supremacy Clause by lifting the

sovereignty of the States and putting the States on the same footing as

other employers [was] not clear. 411 U.S. at   Employees' message is

plain:  the power to regulate commerce includes the power to override

States' immunity from suit, but we will [491 U.S. 15] not conclude that

Congress has overridden this immunity unless it does so clearly.



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,

483 U.S. 468,  and n. 5 (1987); County of Oneida v. Oneida Indian Nation

of New York, 470 U.S. 226, 252 (1985).  See also Green v. Mansour, 474

U.S. 64, 68 (1985) ("States may not be sued in federal court . . .

unless Congress, pursuant to a valid exercise of power, unequivocally

expresses its intent to abrogate the immunity"); Quern v. Jordan, 440

U.S. 332, 343 (1979) (referring to congressional power recognized in

Employees as power "to abrogate Eleventh Amendment immunity").



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., 832 F.2d 1343 (CA3 1987) (case below); In re McVey

Trucking, Inc., 812 F.2d 311 (CA7), cert. denied, 484 U.S. 895 (1987);

County of Monroe v. Florida, 678 F.2d 1124 (CA2 1982), cert. denied, 459

U.S. 1104 (1983); Peel v. Florida Dept. of Transportation, 600 F.2d 1070

(CA5 1979); Mills Music, Inc. v. Arizona, 591 F.2d 1278 (CA9 1979).



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 [491 U.S. 16] hold firmly to the principle that

Congress can override States' immunity under  5.  See, e.g., Dellmuth v.

Muth, post, p. 223; Atascadero State Hospital v. Scanlon, 473 U.S. at

238; Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99

(1984); Quern v. Jordan, supra.



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. 427

U.S. at 456.  In so reasoning, we emphasized the "shift in the

federal-state balance" occasioned by the Civil War Amendments, id. at

455, and in particular quoted extensively from Ex parte Virginia, 100

U.S. 339 (1880).  The following passage from Ex parte Virginia is worth

quoting here as well: 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,

427 U.S. at   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 Fourteenth [491 U.S. 17] Amendment accomplishes

this exchange in two steps ( 1-4, plus  5), while the Commerce Clause

does it in one.  The important point, rather, is that the provision both

expands federal power and contracts state power; that is the meaning, in

fact, of a "plenary" grant of authority, and the lower courts have

rightly concluded that it makes no sense to conceive of  5 as somehow

being an "ultraplenary" grant of authority.  See, e.g., In re McVey

Trucking, supra, at 316.  See also Quern, supra, at 343 (distinguishing

Employees (Commerce Clause) from Fitzpatrick ( 5) only by reference to

the clarity of the congressional intent expressed in the relevant

statutes).



Pennsylyania 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 jurisdictional [491 U.S. 18] provisions did not

mean to sweep away, post at 31-32, JUSTICE SCALIA clearly refers to a

state of affairs that existed well before the States ratified the

Constitution.  JUSTICE SCALIA, therefore, has things backwards:  it is

not the Commerce Clause that came first, but "the principle embodied in

the Eleventh Amendment" that did so.  Antecedence takes this case closer

to, not further from, Fitzpatrick.



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 "constru[ing]" 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 [491

U.S. 19] of the question whether Congress has the authority to abrogate

States' immunity when legislating pursuant to the powers granted it by

the Constitution.  See post at 36-37.  This argument depends on the

notion that, in passing the Judiciary Act, "Congress . . . sought to

eliminate [the] State sovereign immunity" that Article III had not

eliminated.  Post at 36(emphasis in original).  As JUSTICE SCALIA is

well aware, however, the Judiciary Act merely gave effect to the grant

of federal question jurisdiction under Article III, which was not

self-executing.  Thus, if Article III did not "automatically eliminate"

sovereign immunity, see post at 33, then neither did the Judiciary Act

of 1875.  That unsurprising conclusion does not begin to address the

question whether other congressional enactments, not designed simply to

implement Article III's grants of jurisdiction, may override States'

immunity.  When one recalls, in addition, our conclusion that "Art[icle]

III `arising under' jurisdiction is broader than federal question

jurisdiction under  1331," Verlinden B. v. Central Bank of Nigeria, 461

U.S. 480, 495 (1983), JUSTICE SCALIA's conception of Hans' holding looks

particularly exaggerated.



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, 292 U.S. 313, 322-323 (1934), quoting The

Federalist No. 81, p. 657 (H. Dawson ed. 1876) (A. Hamilton).  Because

the Commerce Clause withholds power from the States at the same time as

it confers it on Congress, and because the congressional power thus

conferred would be incomplete without the authority to render States

liable in damages, it must be that, to the extent [491 U.S. 20] that the

States gave Congress the authority to regulate commerce, they also

relinquished their immunity where Congress found it necessary, in

exercising this authority, to render them liable.  The States held

liable under such a congressional enactment are thus not "unconsenting";

they gave their consent all at once, in ratifying the Constitution

containing the Commerce Clause, rather than on a case-by-case basis.



It would be difficult to overstate the breadth and depth of the commerce

power.  See, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

(1937); Wickard v. Filburn, 317 U.S. 111, (1942); Katzenbach v. McClung,

379 U.S. 294 (1964).  It is not the vastness of this power, however,

that is so important here:  it is its effect on the power of the States.

 The Commerce Clause, we long have held, displaces state authority even

where Congress has chosen not to act, see Gibbons v. Ogden, 9 Wheat. 1

(1824); Missouri Pacific R. Co. v. Stroud, 267 U.S. 404, 408 (1925);

Northwest Central Pipeline Corp. v. State Corp. Comm'n of Kansas, 489

U.S. 493 (1989), and it sometimes precludes state regulation even though

existing federal law does not preempt it, see Philadelphia v. New

Jersey, 437 U.S. 617, 621, n. 4, (1978); Northwest Central Pipeline

Corp., supra.  Since the States may not legislate at all in these last

two situations, a conclusion that Congress may not create a cause of

action for money damages against the States would mean that no one could

do so.  And in many situations, it is only money damages that will carry

out Congress' legitimate objectives under the Commerce Clause.



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, 406 U.S. 91 (1972) (recognizing

authority of federal courts to create federal "common law" of nuisance

to apply to interstate water pollution, displacing state nuisance laws).

 We have, in fact, invalidated one State's effort to deal with the

problem [491 U.S. 21] of waste disposal on a local level.  See

Philadelphia v. New Jersey, supra.  A New Jersey statute prohibited the

treatment and disposal, within the State, of any solid or liquid wastes

generated outside the State.  Indicating that a law applicable to all

wastes would have survived under the Commerce Clause, id. at 626, we

held that the exemption of locally produced wastes doomed the statute,

id. at   As a practical matter, however, it is difficult to imagine that

a State could forbid the disposal of all wastes.  Hence, the Commerce

Clause, as interpreted in Philadelphia v. New Jersey, ensures that we

often must look to the Federal Government for environmental solutions. 

And often those solutions, to be satisfactory, must include a cause of

action for money damages.



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.

1V).  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 [491 U.S. 22] potentially responsible parties.

 See ibid.; Mardan Corp. v. C.G.C. Music, Ltd., 804 F.2d 1454, 1457, n.

3 (CA9 1986); Walls v. Waste Resource Corp., 761 F.2d 311, 318 (CA6

1985).  If States, which comprise a significant class of owners and

operators of hazardous waste sites, see Brief for Respondent 8, need not

pay for the costs of cleanup, the overall effect on voluntary cleanups

will be substantial.  This case thus shows why the space carved out for

federal legislation under the commerce power must include the power to

hold States financially accountable not only to the Federal Government,

but to private citizens as well.



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 Pennsylyania, 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.  Pennsylyania 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, 256

U.S. 490, 497 (1921) ("`[T]he 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'").  We never have

held, however, that Article III does not permit such suits where the

States have consented to them.  Pennsylyania's argument thus is answered

by our conclusion that, in approving the commerce power, the States

consented to suits against them based on congressionally created causes

of action.  Its claim also is answered by Fitzpatrick v. Bitzer, 427

U.S. 445 [491 U.S. 23] (1976).  The Fourteenth Amendment does not

purport to expand or even change the scope of Article III.  If

Pennsylyania were right about the limitations on Article III, then our

holding in Fitzpatrick would mean that the Fourteenth Amendment, though

silent on the subject, expanded the judicial power as originally

conceived.  We do not share that view of Fitzpatrick. 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, 134

U.S. 1 (1890), should be overruled.  We affirm the judgment of the Court

of Appeals for the Third Circuit, and remand the case for further

proceedings consistent with this opinion.



It is so ordered. STEVENS, J., concurring



JUSTICE STEVENS, 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, 473 U.S. 234, 247 (1985).  In addition, there is the defense of

sovereign immunity that the Court has added to the text of the Amendment

in cases like Hans v. Louisiana, 134 U.S. 1 (1890).  With respect to the

former -- the legitimate scope of the Eleventh Amendment limitation on

federal judicial power -- I do not believe Congress has the power under

the [491 U.S. 24] Commerce Clause, or under any other provision of the

Constitution, to abrogate the States' immunity.  A statute cannot amend

the Constitution.  With respect to the latter -- the judicially created

doctrine of state immunity even from suits alleging violation of

federally protected rights -- I agree that Congress has plenary power to

subject the States to suit in federal court.



Because JUSTICE BRENNAN's opinion in Atascadero and the works of

numerous scholars have exhaustively and conclusively refuted the

contention that the Eleventh Amendment embodies a general grant of

sovereign immunity to the States, further explication on this point is

unnecessary.  Suffice it to say that the Eleventh Amendment carefully

mirrors the language of the citizen-state and alien-state diversity

clauses of Article III, and only provides that "[t]he Judicial power of

the United States shall not be construed to extend" to these cases.  

There is absolutely nothing in the text of the Amendment that in any way

affects the other grants of "judicial Power" contained in Article III. 

Plainer language is seldom, if ever, found in constitutional law. [491

U.S. 25]



In Hans v. Louisiana, supra, however, the Court departed from the plain

language, purpose, and history of the Eleventh Amendment, extending to

the States immunity from suits premised on the "arising under"

jurisdictional grant of Article III.  Later adjustments to this rule, as

well as the Court's inability to develop a coherent doctrine of Eleventh

Amendment immunity, make clear that this expansion of state immunity is

not a matter of Eleventh Amendment law at all, but rather is based on a

prudential interest in federal-state comity and a concern for "Our

Federalism."  The Eleventh Amendment, as does Article III, speaks in

terms of "judicial power."  The question that must therefore animate the

inquiry in any actual Eleventh Amendment case is whether the federal

court has power to entertain the suit.  In cases in which there is no

such power, Congress cannot provide it -- even through a "clear

statement."  Many of this Court's decisions, however, purporting to

apply the Eleventh Amendment, do not deal with judicial power at all. 

Instead, the issue of immunity is treated as a question of the proper

role of the federal courts in the amalgam of federal-state relations. 

It is in these cases that congressional abrogation is appropriate.



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, 473 U.S. at 238;

Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184, 186

(1964); Employees v. Missouri Dept. of Public Health [491 U.S. 26] and

Welfare, 411 U.S. 279, 284 (1973); Clark v. Barnard, 108 U.S. 436,

447-448 (1883).  Yet, the cases are legion holding that a party may not

waive a defect in subject matter jurisdiction or invoke federal

jurisdiction simply by consent.  See, e.g., Owen Equipment & Erection

Co. v. Kroger, 437 U.S. 365, 377, n. 21 (1978); Sosna v. Iowa, 419 U.S.

393, 398 (1975); California v. LaRue, 409 U.S. 109, 112, n. 3 (1972);

American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, and n. 17

(1951); Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Jackson v. Ashton,

8 Pet. 148, 149 (1834).  This must be particularly so in cases in which

the federal courts are entirely without Article III power to entertain

the suit.  Our willingness to allow States to waive their immunity thus

demonstrates that this immunity is not a product of the limitation of

judicial power contained in the Eleventh Amendment.  Another striking

example of the application of prudential -- rather than true

jurisdictional -- concerns is found in our decision in Edelman v.

Jordan, 415 U.S. 651 (1974).  There, the Court inexplicably limited the

fiction established in Ex parte Young, 209 U.S. 123 (1908), which

permits suits against state officials in their official capacities for

ultra vires acts, and concluded that the Young fiction only applies to

prospective grants of relief.  If Edelman simply involved an application

of the limitation on judicial power contained in the Eleventh Amendment,

once judicial power was found to exist to award prospective relief (even

at some monetary cost to the State, see, e.g., Milliken v. Bradley, 433

U.S. 267 (1977)), it is difficult to understand why that same judicial

power would not extend to award other forms of relief.  See Fitzpatrick

v. Bitzer, 427 U.S. 445, 459 (1976) (STEVENS, J., concurring in

judgment).  In Pennhurst State School and Hospital v. Halderman, 465

U.S. 89, (1984), the Court made explicit what was implicit in Edelman: 

the Young fiction "rests on the need to promote the vindication of

federal rights," while Edelman represents an attempt to "accommodate"

this protection to the "competing interest" [491 U.S. 27] in "the

constitutional immunity of the States."  Similarly, in Green v. Mansour,

474 U.S. 64, 68 (1985), the Court explained:



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., 337 U.S. 582,

646-655 (1949) (Frankfurter, J., dissenting).  As a result, these cases

are better understood as simply invoking the comity and federalism

concerns discussed in our abstention cases, see, e.g., Los Angeles v.

Lyons, 461 U.S. 95 (1983); Trainor v. Hernandez, 431 U.S. 434 (1977);

Juidice v. Vail, 430 U.S. 327 (1977); Rizzo v. Goode, 423 U.S. 362

(1976); Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Younger v. Harris,

401 U.S. 37 (1971), although admittedly in a slightly different voice. 

In my view, federal courts [491 U.S. 28] "have a primary obligation to

protect the rights of the individual that are embodied in the Federal

Constitution" and laws, Harris v. Reed, 489 U.S. 255, 267 (1989)

(STEVENS, J., concurring), and generally should not eschew this

responsibility based on some diffuse, instrumental concern for state

autonomy.  Yet, even if I were convinced otherwise, I would think it

readily apparent that congressional abrogation is entirely appropriate. 

Cf. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528

(1985).  Congress is not superseding a constitutional provision in these

cases, but rather is setting aside the Court's assessment of the extent

to which the use of constitutionally prescribed federal authority is

prudent.



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 [491 U.S.

29] proper balance of state and federal interests as an original matter,

once Congress has spoken, we may not disregard its express decision to

subject the States to liability under federal law. SCALIA, J.,

concurring and dissenting



JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and

JUSTICE KENNEDY join as to Parts II, III, and IV, concurring in part and

dissenting in part.



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, 411 U.S. 279 (1973), the inclusion of

States within defined terms is not alone enough to evince clear intent

to abrogate Eleventh Amendment immunity, post at 48-49 (opinion

concurring in judgment in part and dissenting in part); and SARA because

there the unquestionable reference to liability coextensive with the

liability of private persons was set forth in a section dealing with

limitation of liability, thus not assuring the intent of the Congress

which enacted that provision to extend liability to the States, post at

51-52.



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 [491 U.S. 30] followed.  It is our task, as I

see it, not to enter the minds of the Members of Congress -- who need

have nothing in mind in order for their votes to be both lawful and

effective -- but rather to give fair and reasonable meaning to the text

of the United States Code, adopted by various Congresses at various

times.  See United States v. Fausto, 484 U.S. 439, (1988).  CERCLA, as

amended by SARA, clearly holds the States liable for damages in private

suits.  The inclusion of States, apparently for all purposes, within the

definition of "person," reinforced by the language of the limitation

that assumes state liability equivalent to the liability of private

individuals, leaves no fair doubt that States are liable to private

persons for money damages.  Whether it was the CERCLA Congress that

envisioned this, or the SARA Congress, is to me irrelevant.  The law

does.



Finding that the statute renders the States liable in private suits for

money damages, I must consider the continuing validity of Hans v.

Louisiana, 134 U.S. 1 (1890), which held that the Eleventh Amendment

precludes individuals from bringing damages suits against States in

federal court even where the asserted basis of jurisdiction is not

diversity of citizenship, but the existence of a federal question. II



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, 483 U.S. 468 (1987).  Since the substantive issue was

addressed so extensively by the plurality opinion announcing the

judgment of the Court in that case (which I will refer to as the

"plurality opinion"), and by the dissent, I will only sketch its

outlines here.



The Eleventh Amendment states:



The Judicial power of the United States shall not be construed to extend

to any suit in law or equity, commenced [491 U.S. 31] 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. III,  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 Government, [491 U.S. 32] was part of the understood

background against which the Constitution was adopted, and which its

jurisdictional provisions did not mean to sweep away. [T]he cognizance

of suits and actions [against unconsenting States] was not contemplated

by the Constitution when establishing the judicial power of the United

States. 134 U.S. at 15.  We noted that the decision of this Court that

prompted the Eleventh Amendment, Chisholm v. Georgia, 2 Dall. 419

(1793), permitting a South Carolina citizen to bring an assumpsit action

for damages against the State of Georgia in federal court, had "created

. . . a shock of surprise throughout the country," 134 U.S. at 11; and

we concluded that the Amendment, which, by its precise terms, repudiated

that decision, reflected as well a repudiation of the premise upon which

that decision was based -- namely, that Article III's jurisdictional

grants over the States are unlimited by the doctrine of sovereign

immunity.  "The letter [of Article III and the Eleventh Amendment] is

appealed to now," we said, "as [the letter of Article III] was then, as

a ground for sustaining a suit brought by an individual against a

State."  Id. at 15.  We rejected that appeal.  The rationale of Hans and

of the many cases that have followed it was concisely expressed, again

for a unanimous Court, by Chief Justice Hughes in a case which held

that, despite Article III's express grant of jurisdiction over suits

"between a State . . . and foreign States," and despite the absence of

express grant of sovereign immunity in the Eleventh Amendment, a State

could not be sued by a foreign State in federal court:



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 nonconsenting

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 [491 U.S. 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, 380 U.S. 128, 140-141 (1965); United

States v. Texas, 143 U.S. 621, 641-646 (1892), and a waiver of immunity

against suits by other States, see South Dakota v. North Carolina, 192

U.S. 286 (1904).  The foremost argument urged in favor of overruling

Hans is that a waiver of immunity against suits presenting federal

questions is also implicit in the constitutional scheme.  On this single

point, I add a few words to what was so recently said in Welch.



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, 424 U.S. 392, (1976); U.S.Const., Art. I,  9, cl. 7 ("No

Money [491 U.S. 34] shall be drawn from the Treasury, but in Consequence

of Appropriations made by Law"), it is difficult to see why it must be

interpreted to require that private individuals be able to bring such

claims against the States.  If private initiation of suit against the

offending sovereign as such is essential to preservation of the

structure, it is difficult to see why it would not be essential at both

levels.  Indeed, if anything, it would seem more important at the

federal level, since suits against the States for violation of the

Constitution or laws can at least be brought by the Federal Government

itself, see United States v. Mississippi, supra, at 140-141.  In

providing federal immunity from private suit, therefore, the

Constitution strongly suggests that state immunity exists as well.  Of

course federal law can give, and has given, the private suitor many

means short of actions against the State to assure compliance with

federal law.  He may obtain a federal injunction against the state

officer, which will effectively stop the unlawful action, see Ex parte

Young, 209 U.S. 123, 160 (1908), and may obtain money damages against

state officers, and even local governments, under 42 U.S.C.  1983; see

Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). 

I think it impossible to find in the scheme of the Constitution a

necessity that private remedies be expanded beyond this, to include a

remedy not available, for a similar infraction, against the United

States itself.



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 [491 U.S. 35] strong Courts"; its reversal "would overrule

at least 17 cases, in addition to Hans itself" and cast doubt on "a

variety of other cases that were concerned with this Court's traditional

treatment of sovereign immunity."  483 U.S. at 494, n. 27.  Moreover,

unlike the vast majority of judicial decisions, Hans has had a pervasive

effect upon statutory law, automatically assuring that private damages

actions created by federal law do not extend against the States. 

Forty-nine Congresses since Hans have legislated under that assurance. 

It is impossible to say how many extant statutes would have included an

explicit preclusion of suits against States if it had not been thought

that such suits were automatically barred.  Indeed, it is not even

possible to say that, without Hans, all constitutional amendments would

have taken the form they did.  The Seventeenth Amendment, eliminating

the election of Senators by state legislatures, was ratified in 1913, 23

years after Hans.  If it had been known at that time that the Federal

Government could confer upon private individuals federal causes of

action reaching state treasuries; and if the state legislatures had had

the experience of urging the Senators they chose to protect them against

the proposed creation of such liability; it is not inconceivable,

especially at a time when voluntary state waiver of sovereign immunity

was rare, that the Amendment (which had to be ratified by three-quarters

of the same state legislatures) would have contained a proviso

protecting against such incursions upon state sovereignty.



I would therefore decline respondent's invitation to overrule Hans v.

Louisiana. III



JUSTICE BRENNAN's plurality opinion purports to assume the validity of

[491 U.S. 36] Hans, and yet it 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 Hans, but actually believes in it, agrees with that

disposition.  Better to overrule Hans, I should think, than to

perpetuate the complexities that it creates, see Atascadero State

Hospital v. Scanlon, 473 U.S. 234, (1985) (BRENNAN, J., dissenting), but

eliminate all its benefits to the federal system.  If Hans means only

that federal question suits for money damages against the States cannot

be brought in federal court unless Congress clearly says so, it means

nothing at all.  We do not need Hans for the "clear statement" rule --

just as we do not need to rely on any constitutional prohibition of

suits against the Federal Government to require a similar rule for

elimination of the sovereign immunity of the United States.  See United

States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Testan,

supra, at 399.  As far as I can discern, the course the Court today

pursues -- preserving Hans but permitting Congress to overrule it --

achieves the worst of both worlds.  And it is a course no more justified

by text than by consequences.



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 [491 U.S. 37] state

sovereign immunity pursuant to its powers to create and organize courts

and cases in which it has assertedly sought to do so pursuant to some of

its other powers.



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."  134 U.S. at 14.  Iredell's only words addressed

precisely to the constitutional issue were as follows: 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 [491 U.S. 38] admits, 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 authorize the deduction of so high a power. 2 Dall. at   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, 256

U.S. 490, 497 (1921):



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, 322 U.S. 47, 51 (1944), we said: 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.  [491 U.S. 39] In

Atascadero, 473 U.S. at 242, we identified this principle as an

essential element of the constitutional checks and balances: 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." 483

U.S. at 486, quoting Hans, 134 U.S. at 21 (Harlan, J. concurring).  The

only attempt by either the plurality or JUSTICE WHITE to reconcile

today's holding with the "broad constitutional principle of sovereign

immunity" established by these precedents is the plurality's facile

assertion that, in approving the commerce power, the States consented to

suits against them based on congressionally created causes of action,

ante at 22.  The suggestion that this is the kind of consent our cases

had in mind when reciting the familiar phrase, "the States may not be

sued without their consent," does not warrant response.



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

[491 U.S. 40] under the rubric of the various grants of jurisdiction in

Article III, seeking to determine which of those grants must reasonably

be thought to include suits against the States.  See, e.g., Monaco, 292

U.S. at 328-330.  We have never gone thumbing through the Constitution

to see what other original grants of authority -- as opposed to

Amendments adopted after the Eleventh Amendment -- might justify

elimination of state sovereign immunity.  If private suits against

States, though not permitted under Article III (by virtue of the

understanding represented by the Eleventh Amendment), are nonetheless

permitted under the Commerce Clause, or under some other Article I grant

of federal power, then there is no reason why the other limitations of

Article III cannot be similarly exceeded.  That Article would be

transformed from a comprehensive description of the permissible scope of

federal judicial authority to a mere default disposition, applicable

unless and until Congress prescribes more expansive authority in the

exercise of one of its Article I powers.  That is not the regime the

Constitution establishes.



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 Commerce [491 U.S. 41] Clause," ante at 15,

it means not that we have assumed it to be true, but that we have

assumed it for the sake of argument.  See Welch, 483 U.S. at 475

(specifically refraining from even "intimating a view of the question");

County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 252 (1985).  And

of the two cases cited as referring to existence of a congressional

power "to abrogate . . . immunity," ante at 15, one is plainly

discussing abrogation not pursuant to Article I but pursuant to the

Fourteenth Amendment, see Quern v. Jordan, 440 U.S. 332, 343 (1979), and

the other is ambiguous but surely susceptible of that interpretation,

see Green v. Mansour, 474 U.S. 64, 68 (1985).  In fact, the only dicta

even suggesting the position the Court today adopts were contained in

Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S. 184, (1964),

and (because it quoted Parden) in Employees v. Missouri Dept. of Public

Health and Welfare, 411 U.S. at 286.  As our later cases have made

plain, see Fitzpatrick v. Bitzer, 427 U.S. 445, 451 (1976), Parden's

holding was based upon the State's waiver of its sovereign immunity. 

One aspect of the case has already been overruled, and another cast in

doubt, see infra, at 43; its dicta, and the dicta of a later case

quoting its dicta, are hardly substantial support for the new

constitutional principle the Court adopts.



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, 427 U.S. at 456, whose

substantive provisions were "by express terms directed at the States,"

id. at 453, and "`were intended to be, what they really are, limitations

of the [491 U.S. 42] power of the States and enlargements of the power

of Congress,'" id. at 454, quoting Ex parte Virginia, 100 U.S. 339, 345

(1880).  Nothing in this reasoning justifies limitation of the principle

embodied in the Eleventh Amendment through appeal to antecedent

provisions of the Constitution.  The plurality asserts that it is no

more impossible for provisions of the Constitution adopted concurrently

with Article III to permit abrogation of state sovereign immunity than

it is for provisions adopted subsequently.  We do not dispute that that

is possible, but only that it happened.  As suggested above, if the

Article I commerce power enables abrogation of state sovereign immunity,

so do all the other Article I powers.  An interpretation of the original

Constitution which permits Congress to eliminate sovereign immunity only

if it wants to renders the doctrine a practical nullity, and is

therefore unreasonable.  The Fourteenth Amendment, on the other hand,

was avowedly directed against the power of the States, and permits

abrogation of their sovereign immunity only for a limited purpose. IV



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, Pennsylyania 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, Pennsylyania 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 [491 U.S. 43] Clause, the waiver of state

sovereign immunity.  Two Terms ago, in Welch, we overruled Parden

insofar as that case spoke to the clarity of language necessary to

constitute such a demand.  See 483 U.S. at 478 (plurality opinion); id.

at 496 (SCALIA, J., concurring in part and concurring in judgment).  We

explicitly declined to address, however, the continuing validity of

Parden's holding that the Commerce Clause provided the constitutional

power to make such a demand, 483 U.S. at 478, n. 8.  I would drop the

other shoe.



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 [491 U.S. 44] exchange for federal permission to

engage in that activity.  At bottom, then, to acknowledge that the

Federal Government can make the waiver of state sovereign immunity a

condition to the State's action in a field that Congress has authority

to regulate is substantially the same as acknowledging that the Federal

Government can eliminate state sovereign immunity in the exercise of its

Article I powers -- that is, to adopt the very principle I have just

rejected.  There is little more than a verbal distinction between saying

that Congress can make the Commonwealth of Pennsylyania liable to

private parties for hazardous waste cleanup costs on sites that the

Commonwealth owns and operates, and saying the same thing but adding at

the end "if the Commonwealth chooses to own and operate them."  If state

sovereign immunity has any reality, it must mean more than this. *    * 

  *    *



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 [491 U.S. 45] place, and adds to the clutter the

astounding principle that Article III limitations can be overcome by

simply exercising Article I powers.  It is an unstable victory as well,

since that principle is too much at war with itself to endure.  We shall

either overrule Hans in form as well as in fact, or return to its

genuine meaning.



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 Pennsylyania. WHITE, J., concurring and dissenting



JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and

JUSTICE KENNEDY join as to Part I, concurring in the judgment in part

and dissenting in part.



I find no "unmistakably clear language," Welch v. Texas Dept. of

Highways and Public Transportation, 483 U.S. 468, 478 (1987), in either

CERCLA or SARA that expresses Congress' intent to abrogate the States'

Eleventh Amendment immunity.  However, a majority of the Court concludes

otherwise, and therefore I reach the constitutional issue presented

here.  On that question, I concur in JUSTICE BRENNAN's conclusion, but

not his reasoning. 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 have

a history which focuses directly on the question of state liability and

which shows that Congress considered and firmly decided to abrogate the

Eleventh Amendment immunity of the States. Quern v. Jordan, 440 U.S.

332, 345 (1979).  As we put it more recently: Congress must express its

intention to abrogate the Eleventh Amendment in unmistakable language in

[491 U.S. 46] the statute itself. Atascadero State Hospital v. Scanlon,

473 U.S. 234, 243 (1985).



Two statutes are offered by the Court as providing the "unmistakable

language" required by our cases to abrogate the States' Eleventh

Amendment immunity:  the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C.  9601 et

seq. (1982 ed. and Supp. 1V), 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.,

792 F.2d 372, 378-382 (1986).  The Court disagrees, however, suggesting

that, because CERCLA includes "States" within its definition of

"persons," 42 U.S.C.  9601(21), and because the statute makes "persons"

who are "owners or operators," 42 U.S.C.  9601(20) (1982 ed., Supp. 1V),

liable under  9607, Congress expressed in CERCLA an "unmistakably" clear

intent to make the States liable to suit by private parties in Federal

court.  Ante at 7-8.  I reject this conclusion for several reasons.



First, I note that, of the four federal judges who examined this

question under CERCLA, only one -- Judge Higginbotham in dissent in the

Third Circuit's initial consideration of this case, 792 F.2d at 383-386

-- found in this statutory scheme the requisite clear statement of

Congress' intent to abrogate the States' immunity.  See n. 7, infra. 

While such a "judicial headcount" is, of course, not dispositive, it

does suggest that, whatever one can say about CERCLA, it did [491 U.S.

47] not include an "unmistakable" declaration of abrogation of State

immunity.  If we are going to be faithful to Atascadero and Welch as

providing our standard for this sort of case, then the fact that

experienced jurists could disagree about Congress' intent under CERCLA

is relevant, because the disagreement suggests that the statute's

provisions about State liability were certainly not "unmistakably

clear."



Second, the significance that the Court draws from CERCLA's inclusion of

States within its definition of persons is suspect for its impact on

other portions of the statute.  The definitional section the Court

relies on also includes the "United States Government" within the term

"person."  42 U.S.C.  9601(21).  Yet Congress also adopted, in CERCLA,

an entirely separate statutory provision rendering the Federal

Government suable under the statute's liability provision, see  9607(g).

 If the Court's views about the significance of including States within

the definition of persons is correct, then  9607(g) was wholly

redundant, because -- by including the United States Government within

the definition of persons -- Congress had already stripped the Federal

Government of its sovereign immunity. [491 U.S. 48]



Rather than assuming that Congress wrote a wholly redundant subsection

of  9607, however, it seems more likely to conclude that Congress did

not think that including the United States Government or the States

within  9601(21)'s general definition of "persons" subject to CERCLA's

regime was enough to abrogate the sovereign immunity of either for

damages awards.  Cf. United States v. Testan, 424 U.S. 392, 399 (1976). 

With respect to the Federal Government, Congress went on to enact a

separate provision executing the requisite waiver of immunity,  9607(g).

 However, with respect to the States, Congress made no such additional

provision:  the conclusion to be drawn is obvious.



Finally, and most importantly, the Court's reading of CERCLA employs the

precise analytical approach we rejected in Employees v. Missouri Dept.

of Public Health and Welfare, 411 U.S. 279 (1973).  There, as is true

here, the relevant statutory term that described who was covered by the

Act (in Employees, it was the term "employers" in the Fair Labor

Standards Act (FLSA)), expressly included the state defendant (in

Employees, it was the State as an employer of "Employees of a State . .

. hospital"); invoking these provisions, a private litigant sought to

hold the State liable under the statute's damage remedy.  Id. at  

Nonetheless, in Employees, we held that Congress had not thereby

abrogated the States' Eleventh Amendment immunity; [491 U.S. 49]

instead, we concluded, Congress had meant only to make the States

subject to enforcement actions brought by the Federal Government.  Id.

at



In all relevant respects, the portion of CERCLA on which the Court

relies and the portion of the FLSA that was before us in Employees are

indistinguishable, as are the arguments made for considering the

statutes to have abrogated the States' immunity.  In Employees, we

rejected these arguments; the same result should attach here.  Instead,

we should conclude, as we did in Employees, that Congress' intent could

have been to let the Act's policies be achieved through enforcement

actions taken by the Federal Government against the States.  As we

observed in Employees, supra, at 286: The policy of the Act so far as

the States are concerned is wholly served by allowing the delicate

federal-state relationship to be managed through enforcement actions

directed by the Federal Executive Branch -- and not through litigation

by private parties against the States.



Nor is the Court's result supported by reference to the purposes of

CERCLA.  Respondent finds much significance in the fact that this

statute was designed to be "comprehensive" in nature.  792 F.2d at 381

(summarizing respondent's contention below).  But surely the Federal

Employers' Liability Act (Welch), the Rehabilitation Act (Atascadero),

and the FLSA (Employees) were all "comprehensive" statutes in their

respective fields, and yet this was not enough to deem the Eleventh

Amendment abrogated in those cases.  Nor is it true that CERCLA's

"comprehensiveness" will be substantially lessened by deeming the

States' immunity to have survived intact.  The States remain subject to

liability at the hands of the Federal Government; this provides a viable

means of achieving CERCLA's ends.  See Reply Brief for Petitioner 10.

[491 U.S. 50]



Above all, the entire purpose of our "clear statement" rule would be

obliterated if this Court were to imply Eleventh Amendment abrogation

from our sense of what would best serve the general policy ends Congress

was trying to achieve in a statute.  Such arguments based on the

statute's general goals, whatever weight they might have under a normal

exercise in statutory construction, have no bearing on our analysis of

congressional abrogation.  Cf. Dellmuth v. Muth, post, at   If Congress

believes that making the States liable to private parties is critical to

the scheme it has created in CERCLA, it is up to Congress to say so in

unmistakable language.  Since it has not, I believe that our "clear

statement" precedents bar us from implying such a policy choice -- even

if it is "latent" in the statutory scheme, or an advisable means of

achieving the statute's ends. B



The question then becomes whether, as the Court of Appeals found, United

States v. Union Gas Co., 832 F.2d 1343 (1987), the 1986 amendments to

CERCLA (known as SARA) added such an "unmistakable" statement of

abrogation to the statute. [491 U.S. 51]



The text of the relevant portion of SARA (now codified at 42 U.S.C. 

9601(20)(D) (1982 ed., Supp. 1V)) states, in full:



STATE OR LOCAL GOVERNMENT LIMITATION -- Paragraph (20) of [42 U.S.C. 

9601] (defining "owner or operator") is amended as follows:



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



"(D) The term `owner or operator' does not include a unit of State or

local government which acquired ownership or control involuntarily

through bankruptcy, tax delinquency, abandonment, or other circumstances

in which the government involuntarily acquires title by virtue of its

function as sovereign.  The exclusion provided under this paragraph

shall not apply to any State or local government which has caused or

contributed to the release . . . of a hazardous substance from the

facility, and such a State or local government shall be subject to the

provisions of this Act in the same manner and to the same extent, both

procedurally and substantively, as any nongovernmental entity, including

liability under [42 U.S.C.  9607]." Pub.L. 99-499, 100 Stat. 1615.



Although Congress entitled the amendment "STATE OR LOCAL GOVERNMENT

LIMITATION," the Court disparages the idea that  9601(20)(D) was enacted

solely as a limitation on governmental unit liability.  The Court

asserts that such a view ignores that  101(20)(D) "would be unnecessary

unless" the States could be liable under  9607.  Ante at 8.  But

everyone agrees that States may be liable under  9607:  the liability of

the Commonwealth of Pennsylyania 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 U.S. Government for cleanups at

involuntarily acquired sites.  Given this fact,  9601(20)(D) makes [491

U.S. 52] perfectly good sense without any contortion of it to imply an

intent of Congress to abrogate the Eleventh Amendment.



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 [491 U.S. 53] Court says renders the States liable ("a State or

local government shall be subject . . . ") is introduced by the words,

"[t]he exclusion provided under this paragraph shall not apply. . . ."  

9601(20)(D).  Thus, the liability-creating portion of  9601(20)(D)

exists only as a "limit" on the liability-limiting portion of 

9601(20)(D).  Under the Court's reading of the statute, we are left with

the paradox of Congress being tougher on States that find themselves

involuntary operators of waste sites than it was on those that had owned

and operated such facilities on their own accord.



The Court argues that the last clause of the last sentence of 

9601(20)(D) -- making involuntary-owner state and local governments that

cause the release of toxic chemicals subject to the provisions of

[CERCLA] in the same manner and to the same extent, both procedurally

and substantively, as any nongovernmental entity -- provides the clear

statement of abrogation required by our cases.  But like the Court's

reliance on the inclusion of States within CERCLA's definition of

"persons" subject to the Act (which I discussed above), [491 U.S. 54]

this method of analysis is directly contrary to the approach we took in

Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279

(1973).  The Court insists that its reliance on this part of SARA is

correct because, if the statute is interpreted to mean something other

than abrogating state immunity, the provision is rendered redundant and

meaningless.  Ante at 11-12.



The provision, however, has meaning as something less than an abrogation

provision because, like the statute in question in Employees, it exists

to make the States liable to the Federal Government.  While the Court is

surely correct when it observes that, under United States v. California,

332 U.S. 19, 26-27 (1947), no statutory provision is required as a

general matter to permit the United States to sue a State, here, the

Congress forbade such actions in the first part of  9601(20)(D) with

respect to some States (i.e., involuntary owners of waste sites).  Thus,

the portion of  9601(20)(D) on which the Court rests its case is

precisely like the 1966 amendment to  3(d) of the FLSA that was before

us in Employees:  it operates to put some States back into the class of

entities that may be liable to the United States, after Congress had

previously exempted them from such actions.  See Employees, supra, at  

As in Employees, the statute should be read as only authorizing suits by

the United States against the States, absent a more clear statement of

an authorization of private actions. [491 U.S. 55]



In Edelman v. Jordan, 415 U.S. 651, 673 (1974), we said of the related

question of interpreting a state statute to find a waiver of Eleventh

Amendment immunity that such a waiver would only be found where stated

"by the most express language or by such overwhelming implications from

the text as [will] leave no room for any other reasonable construction"

of the statute in question.  Here, there is room for a "reasonable

construction" of SARA that does not entail an Eleventh Amendment

abrogation; i.e., that Congress intended it as a modification of the

liability of the States to the Federal Government.  Even if the Court's

interpretation of  9601(20)(D) were itself "reasonable," the existence

of an alternate, nonabrogating "reasonable" interpretation of the

section dictates rejection of its view.



Consequently, I do not think that SARA's liability-limiting amendment to

CERCLA contains an "unmistakably clear" statement by Congress that it

wanted to abrogate the [491 U.S. 56] States' solemn immunity to private

suit under the Eleventh Amendment. 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 [491 U.S. 57] the States from suit in the

federal courts.  I accept that judgment.  This brings me to the question

whether Congress has the constitutional power to abrogate the States'

immunity.  In that respect, I agree with the conclusion reached by

JUSTICE BRENNAN in Part III of his opinion, that Congress has the

authority under Article I to abrogate the Eleventh Amendment immunity of

the States, although I do not agree with much of his reasoning.



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

O'CONNOR, J., dissenting



JUSTICE O'CONNOR, dissenting.



I agree with JUSTICE SCALIA that a faithful interpretation of the

Eleventh Amendment embodies a concept of state sovereignty which limits

the power of Congress to abrogate States' immunity when acting pursuant

to the Commerce Clause.  But that view does not command a majority of

the Court, thus necessitating an inquiry as to 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. Footnotes BRENNAN, J., lead opinion (Footnotes)



1. Section 101(20)(D), 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.



2. 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' immunity, but instead read CERCLA and SARA together, and argue

that SARA's wording must inform our understanding of the other

definitional sections of the statute.



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, 411 U.S. 279 (1973), that a statute literally

including the States as "persons" subject to the statute was not clear

enough to abrogate the States' immunity.  Post at 48-49.  This claim

ignores SARA's more specific language.



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.



3. 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 , 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 preempt 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, 445 U.S. 622, 638 (1980),

and our refusal in the past to allow state law immunities to define the

scope of federal statutes, see, e.g., Monell v. New York City Dept. of

Social Services, 436 U.S. 658, 695, n. 59 (1978), Congress would see no

need to use emphatic language to override this kind of immunity.  Unless

we conclude, therefore, that the phrase "as any nongovernmental entity"

is superfluous, this clause demonstrates that  101(20)(D) was designed

to do more than render the States liable in damages to the Federal

Government.



4. 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.



5. Since Union Gas itself eschews reliance on the theory of waiver we

announced in Parden v. Terminal Railway of Alabama Docks Dept., 377 U.S.

184 (1964), see Brief for Respondent 31, we neither discuss this theory

here nor understand why JUSTICE SCALIA feels the need to do so.  See

post at 42-44. STEVENS, J., concurring (Footnotes)



1. 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).



2. 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

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.



3. 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,

489 U.S. 803 (1989); Williams v. Vermont, 472 U.S. 14 (1985); Bacchus

Imports, Ltd. v. Dias, 468 U.S. 263 (1984); Heublein, Inc. v. South

Carolina Tax Comm'n, 409 U.S. 275 (1972); Halliburton Oil Well Cementing

Co. v. Reily, 373 U.S. 64 (1963); Laurens Federal Savings & Loan Assn.

v. South Carolina Tax Comm'n, 365 U.S. 517 (1961).  See also Smith v.

Reeves, 178 U.S. 436 (1900); Cohens v. Virginia, 6 Wheat. 264 (1821). 

To the extent the Eleventh Amendment is broadly construed to have

removed all federal power to adjudicate claims against the States

regardless of whether or not the claim is one arising under federal law,

it is difficult to justify our exercise of power in these cases.  See

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 256, n. 8 (1985)

(BRENNAN, J., dissenting).  See also Jackson, 98 Yale L.J., at 13-39. 

However, if our post-Hans state immunity cases are instead understood as

premised on a prudential balancing of state and federal interests, these

cases are easily explained:  a state court decision defining federal law

tips the balance in favor of federal review.  Cf. Michigan v. Long, 463

U.S. 1032, 1040 (1983); Martin v. Hunter's Lessee, 1 Wheat. 304, (1816).



4. 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, 440 U.S. 410,

(1979). SCALIA, J., concurring and dissenting (Footnotes)



1. In Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275 (1959), we

said that a condition of suability of the Bridge Commission, which we

interpreted Congress to have attached to its approval of the interstate

compact creating the Commission, was accepted by the States when they

implemented the compact.  That was an alternate holding, since we also

found that the terms of the compact itself made the Commission suable. 

Obviously, moreover, what Congress may exact with respect to new

entities created by compacts that the States have no constitutional

power to make without its explicit consent, see U.S.Const., Art. I,  10,

cl. 3, may be much greater than what it may exact in other contexts.



2. A "waiver" theory would not support retroactive imposition of

liability -- but that is rare in any event.  Moreover, it could be held

that waiver cannot occur when the State is unaware of the facts that

trigger its liability, or of the law that imposes it.  It is difficult

to imagine how ignorance of the facts could ever be found, unless (as is

most unlikely) we should decline to attribute the knowledge of the

State's agents to the State itself.  Our cases discussing waiver have

displayed no interest in "actual" state knowledge of either facts or

law. WHITE, J., concurring and dissenting (Footnotes)



1. 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 our cases 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 case,  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.  Blurring the choice among these possible historical facts by

resting on a "combination" analysis is only an effort to make this

difficult case artificially easier.



2. 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.



3. 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 and local governmental liability under  9607 in several respects. 

First, there is the involuntary ownership exclusion of  9601(20)(D),

adopted in the 1986 SARA amendments, that is discussed in detail in Part

I-B infra.



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. 1V). 

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. 99-25,3, 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.



4. 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. 1V); 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, 411 U.S.

279, (1973).



5. 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., 759 F.2d

1032, 1042 (CA2 1985); United States v. Bliss, 667 F.Supp. 1298, 1304

(ED Mo. 1987).  If CERCLA as originally enacted -- without any help from

SARA -- rendered States liable to private suits under  9607, then they

must be subject to that section's strict liability rule as well.



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.



6. 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) (i.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

point:"  Congress may have reasoned that, while state and local

governments that are involuntary owners should be exempted from

liability under CERCLA, those that actually cause subsequent discharges

should be liable under the statute, with their involuntary ownership no

defense or excuse whatsoever when the United States seeks recovery.  In

this view, Congress simply added the relevant phrase to strongly

emphasize that involuntary ownership is no defense if a state or local

government causes a discharge.  Put another way, it is incongruous to

attribute such sweeping significance -- an Eleventh Amendment

abrogation, something we have found present in only the most

extraordinary circumstances -- to this one phrase in the definitional

portion of SARA/CERCLA.



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 preemptive 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, 440 U.S. 332, (1979).  Finally, even if my reading of this

phrase makes it somewhat superfluous to the statute, the redundancy

created by my interpretation of this one clause is not nearly as severe

as the redundancy created by the Court's reading of the statute, and

discussed in the text, supra at 47.



7. 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., 792 F.2d

372 (CA3 1986) -- and one District Court -- also as part of this

litigation, United States v. Union Gas Co., 575 F.Supp. 949 (ED Pa.

1983) -- had ruled on the question whether CERCLA as it was then written

abridged States' Eleventh Amendment immunity.  Both of these courts held

that it did not; no federal court had ruled to the contrary.



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 Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985),

that Congress had failed to provide a clear statement of abrogation of

the Eleventh Amendment.  The words Congress chose in that Act are

instructive:  "A State shall not be immune under the Eleventh Amendment

. . . from suit in Federal court for a violation of [portions of the

Act]."  Pub L. 99-506, 100 Stat. 1845.



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, 483 U.S. 468 (1987)), is that Congress' intent to

abrogate must be expressed clearly, in a plain statement in the text of

the enactment -- and is not to be derived by parsing together various

fragments scattered about a statute, as if it were a legislative quote

acrostic.  See also n. 1, supra.



8. As a preliminary matter, I reiterate my view that, for the reasons

stated by the plurality in Welch v. Texas Dept. of Highways, supra, at 

Hans v. Louisiana, 134 U.S. 1 (1890), should not be overruled.

