491 U.S. 1 (1989)
For about 50 years, the predecessors of respondent Union Gas Co. operated a coal gasification plant near Brodhead Creek in Stroudsburg, Pennsylvania, which produced coal tar as a by-product.1
The plant was dismantled around 1950. A few years later, Pennsylvania took part in major flood-control efforts along the creek.2
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.3 The coal tar began to seep into the creek, and the Environmental Protection Agency determined that the tar was a hazardous substance and declared the site the Nation's first emergency Superfund site.4 Working together, Pennsylvania and the Federal Government cleaned up the area, and the Federal Government reimbursed the State for clean-up costs of $720,000.5
To recoup these costs, the United States sued Union Gas under §§ 104 and 106 of CERCLA, claiming that Union Gas was liable for such costs because the company and its predecessors had deposited coal tar into the ground near Brodhead Creek. Union Gas filed a third-party complaint against Pennsylvania, asserting that the Commonwealth was responsible for at least a portion of the costs because it was an owner or operator of the hazardous-waste site.6 Its flood-control efforts had negligently caused or contributed to the release of the coal tar into the creek.7 The District Court dismissed the complaint, accepting Pennsylvania's claim that its Eleventh Amendment immunity barred the suit. A divided panel of the Court of Appeals for the Third Circuit affirmed, finding no clear expression of congressional intent to hold States liable in monetary damages under CERCLA.8
While Union Gas' petition for certiorari was pending, Congress amended CERCLA by passing SARA. The Supreme Court granted certiorari, vacated the Court of Appeals' opinion, and remanded for reconsideration in light of these amendments.9 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.10 The Supreme Court granted certiorari, 485 U. S. 958 (1988), and affirmed.11
Whether CERCLA as amended by SARA permits a suit for monetary damages against a State in federal court?12
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.13
Yes. CERCLA as amended by SARA clearly expresses an intent to hold States liable in damages in federal court.14 The statute explicitly includes States within its definition of persons.15 Section 101(20)(D) of SARA provides that States acquiring ownership involuntarily are excluded from owner or operator liability except where they have caused or contributed to a release. In that case they are subject to the statute in the same manner as any nongovernmental entity.16
This language mirrors the waiver of federal sovereign immunity in § 120(a)(1).17 The plain statement that States are to be considered owners or operators in all but narrow circumstances conveys unmistakable clarity that Congress intended States to be liable for cleanup costs.18 Section 107(d)(2) further recognizes potential state liability by exempting States from liability for emergency responses absent gross negligence.19
Although the inclusion of States within CERCLA's definition of persons would not be rendered meaningless if limited only to suits by the United States, the highly specific language of § 101(20)(D) was unnecessary unless Congress intended to permit suits by private citizens against the States.2021
CERCLA as amended by SARA clearly permits suits for money damages against States in federal court.22
Related opinions on this issue
Justice Stevens filed a concurring opinion emphasizing the distinction between the correct and literal interpretation of the plain language of the Eleventh Amendment and the defense of sovereign immunity that the Court has added to the text of the Amendment in cases like Hans v. Louisiana.23
With respect to the legitimate scope of the Eleventh Amendment limitation on federal judicial power, he does not believe Congress has the power under the Commerce Clause to abrogate the States' immunity.24 With respect to the judicially created doctrine of state immunity even from suits alleging violation of federally protected rights, he agrees that Congress has plenary power to subject the States to suit in federal court.25
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, he joins the opinion.26 Even if a majority of this Court might have reached a different assessment of the 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.27
Justice White filed an opinion concurring in the judgment in part and dissenting in part. He finds no unmistakably clear language in either CERCLA or SARA that expresses Congress' intent to abrogate the States' Eleventh Amendment immunity.28
He begins by examining CERCLA in the form in which Congress originally adopted it in 1980.29 The Third Circuit concluded that the statute did not contain an unmistakable abrogation of the Eleventh Amendment.30 The Court disagrees, suggesting that because CERCLA includes States within its definition of persons and because the statute makes persons who are owners or operators liable under § 9607, Congress expressed in CERCLA an unmistakably clear intent to make the States liable to suit by private parties in federal court.31
He rejects this conclusion for several reasons, including that of the four federal judges who examined this question under CERCLA, only one found in this statutory scheme the requisite clear statement.32 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.33 The definitional section the Court relies on also includes the United States Government within the term person.34
Yet Congress also adopted an entirely separate statutory provision rendering the Federal Government suable under the statute's liability provision.35 If the Court's views about the significance of including States within the definition of persons is correct, then the separate provision was wholly redundant.36 Rather than assuming that Congress wrote a wholly redundant subsection, it seems more likely to conclude that Congress did not think that including the United States Government or the States within the general definition of persons subject to CERCLA's regime was enough to abrogate the sovereign immunity of either for damages awards.37
The Court's reading of CERCLA employs the precise analytical approach rejected in Employees v. Missouri Dept. of Public Health and Welfare.38 There, as is true here, the relevant statutory term that described who was covered by the Act expressly included the state defendant.39 Nonetheless, in Employees, the Court held that Congress had not thereby abrogated the States' Eleventh Amendment immunity.40 In all relevant respects, the portion of CERCLA on which the Court relies and the portion of the FLSA that was before the Court in Employees are indistinguishable.41
The question then becomes whether the 1986 amendments to CERCLA added such an unmistakable statement of abrogation to the statute.42 Although Congress entitled the amendment State or Local Government Limitation, the Court disparages the idea that it was enacted solely as a limitation on governmental unit liability.43 The Court asserts that such a view ignores that the provision would be unnecessary unless the States could be liable.44
But everyone agrees that States may be liable to the United States.45 The provision provides a significant reduction of that potential liability.46 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.47
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.48 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.49 But this is plainly wrong.
The portion of the sentence which the Court says renders the States liable is introduced by the words The exclusion provided under this paragraph shall not apply.50 Thus, the liability-creating portion of the provision exists only as a limit on the liability-limiting portion.51 The Court argues that the last clause of the last sentence 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.52
But like the Court's reliance on the inclusion of States within CERCLA's definition of persons, this method of analysis is directly contrary to the approach taken in Employees. The provision 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.53 Consequently, he does not think that SARA's liability-limiting amendment to CERCLA contains an unmistakably clear statement by Congress that it wanted to abrogate the States' solemn immunity to private suit under the Eleventh Amendment.54
His view on the statutory issue has not prevailed, however; a majority of the Court has ruled that the statute, as amended, plainly intended to abrogate the immunity of the States from suit in the federal courts.55 He accepts that judgment. On the constitutional question, he concurs in the conclusion that Congress has the authority under Article I to abrogate the Eleventh Amendment immunity of the States, although he does not agree with much of the reasoning.56
Accordingly, he would affirm the judgment of the Court of Appeals.57
Whether Congress has the authority to create such a cause of action when legislating pursuant to the Commerce Clause?58
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.59 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 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.60 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.
Yes. Congress has the authority to render States liable in money damages in federal court when legislating pursuant to the Commerce Clause.61 Though the Court had never squarely resolved this issue of congressional power, prior decisions mark a trail leading to the conclusion that Congress may permit suits against the States for money damages.62
The path begins with Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964). There the Court concluded that the States surrendered a portion of their sovereignty when they granted Congress the power to regulate commerce.63 The path continues in Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279 (1973), where the Court acknowledged the same surrender but required a clear statement before finding abrogation.64
Since Employees the Court has twice assumed that Congress has the authority to abrogate state immunity when acting pursuant to the Commerce Clause.65 Every Court of Appeals to reach the issue has concluded that Congress has the authority to abrogate state immunity when legislating pursuant to plenary powers.66 Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), held that Congress may subject States to suits for money damages when legislating under § 5 of the Fourteenth Amendment.67 The rationale of Fitzpatrick applies equally to the Commerce Clause because both provisions expand federal power and contract state power.68
The special nature of the commerce power confirms the conclusion. The Commerce Clause withholds power from the States at the same time as it confers it on Congress.69 Because the power would be incomplete without authority to render States liable in damages, the States relinquished their immunity when they ratified the Constitution.70 The breadth of the commerce power and its displacement of state authority show why Congress must be able to hold States financially accountable to private citizens as well as the Federal Government.71
Congress has the authority to render States liable in money damages in federal court when legislating pursuant to the Commerce Clause.
Related opinions on this issue
Joined by The Chief Justice, Justice O'connor, And Justice Kennedy Joined As To Parts Ii, Iii, And Iv
Justice Scalia filed an opinion concurring in part and dissenting in part. He joins Part II of the opinion holding that the text of CERCLA as amended by SARA clearly renders States liable for money damages in private suits.72
Finding that the statute renders the States liable in private suits for money damages, he must consider the continuing validity of Hans v. Louisiana, 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.73
The Eleventh Amendment states that 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. If this text were intended as a comprehensive description of state sovereign immunity in federal courts, 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.74
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.75 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, was part of the understood background against which the Constitution was adopted, and which its jurisdictional provisions did not mean to sweep away.76
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.77 What is subject to greater dispute, however, is how much sovereign immunity was implicitly eliminated by what Hamilton called the plan of the convention.78
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 his view, than the need for a tribunal to resolve disputes on federal questions between individuals and the States.79 Undoubtedly the Constitution envisions the necessary judicial means to assure compliance with the Constitution and laws.80
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, it is difficult to see why it must be interpreted to require that private individuals be able to bring such claims against the States.81
Even if he were wrong 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.82 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.83
He would therefore decline respondent's invitation to overrule Hans v. Louisiana.84 The plurality opinion purports to assume the validity of Hans, and yet reaches the result that CERCLA's imposition of monetary liability is constitutional because Congress has the power to abrogate state sovereign immunity in the exercise of its Commerce Clause power.85
Better to overrule Hans, he should think, than to perpetuate the complexities that it creates, but eliminate all its benefits to the federal system.86 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.87
The course the Court today pursues — preserving Hans but permitting Congress to overrule it — achieves the worst of both worlds.88 And it is a course no more justified by text than by consequences.89
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.90 In Hans, as here, there was a congressional statute that could be pointed to as eliminating state sovereign immunity — namely, the Judiciary Act of 1875.91
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 no such assertion is available, but rather the much more gossamer distinction between cases in which Congress has assertedly sought to eliminate 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.
He thinks it plain that the position adopted by the Court contradicts the rationale of Hans, if not its narrow holding.92 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.93
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.94 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.95
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 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.96 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.97
The Court's error is clear enough from the embarrassing frailty of the case support to which the plurality opinion appeals.98 Finally, the plurality opinion errs in relying on Fitzpatrick v. Bitzer, which upheld a money award against a State under Title VII of the Civil Rights Act of 1964.99 The distinction, as we carefully explained in that opinion, is that the Civil Rights Act was enacted pursuant to § 5 of the Fourteenth Amendment.100
Nothing in this reasoning justifies limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution.101 It remains for him to consider whether the doctrine of waiver applies here.102 There are obvious and fatal difficulties in acknowledging such a power if no Commerce Clause power to abrogate state sovereign immunity exists.103
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.104 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.105
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 he has just rejected.106 There is little more than a verbal distinction between saying that Congress can make the Commonwealth of Pennsylvania 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.107
If state sovereign immunity has any reality, it must mean more than this.108 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.109
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.110
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 place, and adds to the clutter the astounding principle that Article III limitations can be overcome by simply exercising Article I powers.111 It is an unstable victory as well, since that principle is too much at war with itself to endure.112 We shall either overrule Hans in form as well as in fact, or return to its genuine meaning.113
He would reverse the judgment of the Court of Appeals on the ground that federal courts have no power to entertain the present suit against the Commonwealth of Pennsylvania.114
Justice O'Connor filed a dissenting opinion. She agrees 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.115
But that view does not command a majority of the Court, thus necessitating an inquiry whether Congress intended in CERCLA and SARA to abrogate the States' Eleventh Amendment immunity.116 On that question, she joins Part I of Justice White's opinion.117 She also joins Parts II, III, and IV of Justice Scalia's opinion concurring in part and dissenting in part.118