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. 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."
For about 50 years, the predecessors of respondent Union Gas Co. operated a coal gasification plant near Brodhead Creek in Stroudsburg, Pennsylvania, which produced coal tar as a by-product. The plant was dismantled around 1950. A few years later, Pennsylvania took part in major flood-control efforts along the creek. In 1980, shortly after acquiring easements to the property along the creek, the Commonwealth struck a large deposit of coal tar while excavating the creek. The coal tar began to seep into the creek, and the
To recoup these costs, the United States sued Union Gas under §§ 104 and 106 of CERCLA, 42 U. S. C. §§ 9604 and 9606, claiming that Union Gas was liable for such costs because the company and its predecessors had deposited coal tar into the ground near Brodhead Creek. Union Gas filed a third-party complaint against Pennsylvania, asserting that the Commonwealth was responsible for at least a portion of the costs because it was an "owner or operator" of the hazardous-waste site, 42 U. S. C. § 9607(a), and because its flood-control efforts had negligently caused or contributed to the release of the coal tar into the creek. The District Court dismissed the complaint, accepting Pennsylvania's claim that its Eleventh Amendment immunity barred the suit. A divided panel of the Court of Appeals for the Third Circuit affirmed, finding no clear expression of congressional intent to hold States liable in monetary damages under CERCLA. United States v. Union Gas Co., 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.
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. IV), and imposes the costs of the cleanup on those responsible for the contamination, § 9607. Two general terms, among others, describe those who may be liable under CERCLA for the costs of remedial action: "persons" and "owners or operators." § 9607(a). "States" are explicitly included within the statute's definition of "persons." § 9601(21). The term "owner or operator" is defined by reference to certain activities that a "person" may undertake. § 9601(20)(A).
Section 101(20)(D) of SARA excludes from the category of "owners or operators" States that "acquired ownership or control involuntarily through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government involuntarily acquires title by virtue of its function as
It is also highly significant that, in § 101(20)(D), Congress used language virtually identical to that it chose in waiving the Federal Government's immunity from suits for damages under CERCLA. Section 120(a)(1) of CERCLA, as set forth in 42 U. S. C. § 9620(a)(1), provides: "Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title." This is doubtless an " `unequivoca[l] 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).
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,
The same can be said about the clause of § 101(20)(D) specifying that States would be subject to CERCLA's provisions, "including liability under section 9607 of this title." Section 9607 provides for liability in damages, and liability in damages is considered a special remedy, requiring special statutory language, only where the States' immunity from suits by private citizens is involved. In light of § 101(20)(D)'s very precise language, it would be exceedingly odd to interpret this provision as merely a signal that the United States — rather than private citizens — could sue the States for damages under CERCLA.
Moreover, § 101(20)(D) does not, as Pennsylvania suggests, render States liable only if they acquire property involuntarily and then contribute to a release of harmful substances at that property. Section 101(20)(D) obviously explains and qualifies the entire definition of "owner or operator" — not
Nor can it be decisive that § 101(20)(D) mentions local governments as well as States. The Commonwealth argues that, because local governments do not enjoy immunity from suit, § 101(20)(D)'s reference to local governments means that the section shows no intent to abrogate States' immunity. It was natural, however, for Congress to describe the potential liability of States and local governments in the same breath, since both are governmental entities and both enjoy special exemptions from liability under CERCLA. See §§ 101(20)(D), 107(d)(2). Pennsylvania also argues that § 101(20)(D) demonstrates no intent to hold the States liable because this provision limits the States' liability. It is true that this section rescues the States from liability where they obtained ownership of cleanup sites involuntarily. The Commonwealth fails to grasp, however, that a limitation of liability is nonsensical unless liability existed in the first place.
We thus hold that the language of CERCLA as amended by SARA clearly evinces an intent to hold States liable in damages in federal court.
Our conclusion that CERCLA clearly permits suits for money damages against States in federal court requires us to decide whether the Commerce Clause grants Congress the power to enact such a statute. Pennsylvania argues that the principle of sovereign immunity found in the Eleventh
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 trial 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 286-287. Employees' message is plain: the power to regulate commerce includes the power to override States' immunity from suit, but we will
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, 475-476, 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
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:
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
Pennsylvania attempts to bring this case outside Fitzpatrick by asserting that "[t]he Fourteenth Amendment . . . alters what would otherwise be the proper constitutional balance between federal and state governments." Brief for Petitioner 39. The Commonwealth believes, apparently, that the "constitutional balance" existing prior to the Fourteenth Amendment did not permit Congress to override the States' immunity from suit. This claim, of course, begs the very question we face.
For its part, JUSTICE SCALIA's opinion casually announces: "Nothing in [Fitzpatrick's] reasoning justifies limitation of the principle embodied in the Eleventh Amendment through appeal to antecedent provisions of the Constitution." Post, at 42. The operative word here is, it would appear, "antecedent"; and it is important to emphasize that, according to JUSTICE SCALIA, the Commerce Clause is antecedent, not to the Eleventh Amendment, but to "the principle embodied in the Eleventh Amendment." But, according to Part II of JUSTICE SCALIA's opinion, this "principle" has been with us since the days before the Constitution was ratified — since the days, in other words, before the Commerce Clause. In describing the "consensus that the doctrine of sovereign immunity. . . was part of the understood background against which the Constitution was adopted, and which its jurisdictional
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
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.
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
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, 127-128 (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 pre-empt it, see Philadelphia v. New Jersey, 437 U.S. 617, 621, n. 4, 628-629 (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
The cause of action under consideration, for example, came about only after Congress had tried to solve the problem posed by hazardous substances through other means. Prior statutes such as the Resource Conservation and Recovery Act of 1976, 90 Stat. 2796, as amended, 42 U. S. C. § 6901 et seq., had failed in large part because they focused on preventive measures to the exclusion of remedial ones. See Note, Superfund and California's Implementation: Potential Conflict, 19 C. W. L. R. 373, 376, n. 23 (1983). The remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup. See, e. g., 42 U. S. C. § 9613(f)(1) (1986 ed., Supp. IV). Congress did not think it enough, moreover, to permit only the Federal Government to recoup the costs of its own cleanups of hazardous-waste sites; the Government's resources being finite, it could neither pay up front for all necessary cleanups nor undertake many different projects at the same time. Some help was needed, and Congress sought to encourage that help by allowing private parties who voluntarily cleaned up hazardous-waste sites to recover a proportionate amount of the costs of cleanup from the other
It does not follow that Congress, pursuant to its authority under the Commerce Clause, could authorize suits in federal court that the bare terms of Article III would not permit. No one suggests that if the Commerce Clause confers on Congress the power of abrogation, it must also confer the power to direct that certain state-law suits (not falling under the diversity jurisdiction) be brought in federal court.
According to Pennsylvania, however, to decide that Congress may permit suits against States for money damages in federal court is equivalent to holding that Congress may expand the jurisdiction of the federal courts beyond the bounds of Article III. Pennsylvania argues that the federal judicial power as set forth in Article III does not extend to any suits for damages brought by private citizens against unconsenting States. See Brief for Petitioner 35-36, quoting Ex parte New York, 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. Pennsylvania'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
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.
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
Because JUSTICE BRENNAN's opinion in Atascadero and the works of numerous scholars
Several of this Court's decisions make clear that much of our state immunity doctrine has absolutely nothing to do with the limit on judicial power contained in the Eleventh Amendment. For example, it is well established that a State may waive its immunity, subjecting itself to possible suit in federal court. See Atascadero, 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
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, 104-106 (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"
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.
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
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
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.
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:
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,
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, 399-402 (1976); U. S. Const., Art. I, § 9, cl. 7 ("No Money
Even if I were wrong, however, about the original meaning of the Constitution, or the assumption adopted by the Eleventh Amendment, or the structural necessity for federal-question suits against the States, it cannot possibly be denied that the question is at least close. In that situation, the mere venerability of an answer consistently adhered to for almost a century, and the difficulty of changing, or even clearly identifying, the intervening law that has been based on that answer, strongly argue against a change. As noted by the Welch plurality, "Hans has been reaffirmed in case after case, often unanimously and by exceptionally
I would therefore decline respondent's invitation to overrule Hans v. Louisiana.
JUSTICE BRENNAN's plurality opinion purports to assume the validity of Hans, and yet reaches the result that CERCLA's imposition of monetary liability is constitutional because Congress has the power to abrogate state sovereign immunity in the exercise of its Commerce Clause power. JUSTICE WHITE, who not merely assumes the validity of
To begin with, Hans did not merely hold that Article III failed to eliminate state sovereign immunity of its own force, without any congressional action to that end. In Hans, as here, there was a congressional statute that could be pointed to as eliminating state sovereign immunity — namely, the Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470, which gave United States courts jurisdiction over cases involving federal questions. (The Hans Court was unquestionably aware of that refinement, because it was the statutory ground of interpretation of the Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 80, rather than the constitutional ground, that Justice Iredell had relied upon in his dissent in Chisholm, which the Hans Court discussed at some length.) Thus, the distinction that the Court must rely upon is not one between cases in which Congress has assertedly sought to eliminate state sovereign immunity and cases in which in no such assertion is available, but rather the much more gossamer distinction between cases in which Congress has assertedly sought to eliminate
I think it plain that the position adopted by the Court contradicts the rationale of Hans, if not its narrow holding. Hans was not expressing some narrow objection to the particular federal power by which Louisiana had been haled into court, but was rather enunciating a fundamental principle of federalism, evidenced by the Eleventh Amendment, that the States retained their sovereign prerogative of immunity. That is clear throughout the opinion, but particularly in the following passage:
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:
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):
In Great Northern Ins. Co. v. Read, 322 U.S. 47, 51 (1944), we said:
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
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
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
It remains for me to consider whether the doctrine of waiver applies here. The basis for application of a waiver theory would be that, subsequent to enactment of CERCLA, Pennsylvania acted as the "owner and operator of . . . a facility," 42 U. S. C. § 9607(a)(1), which latter term includes a "site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located," § 9601(9)(B); and that, by so acting, Pennsylvania voluntarily assumed the state liability for private suit that the legislation (assertedly) contains.
Parden is the only case in which we have held that the Federal Government can demand, as a condition to its permission of state action regulable under the Commerce
There are obvious and fatal difficulties in acknowledging such a power if no Commerce Clause power to abrogate state sovereign immunity exists. All congressional creations of private rights of action attach recovery to the defendant's commission of some act, or possession of some status, in a field where Congress has authority to regulate conduct. Thus, all federal prescriptions are, insofar as their prospective application is concerned, in a sense conditional, and — to the extent that the objects of the prescriptions consciously engage in the activity or hold the status that produces liability — can be redescribed as invitations to "waiver." For example, one is not liable for damages to private parties under the federal securities laws, see the Securities Exchange Act of 1934, § 10(b), 48 Stat. 891, 15 U. S. C. § 78j(b), unless one participates in the activity of purchasing or selling securities affecting interstate commerce; and it is possible to describe that liability as not having been categorically imposed, but rather as being the result of a "waiver" of one's immunity, in
* * *
The Court's holding today can be applauded only by those who think state sovereign immunity so constitutionally insignificant that Hans itself might as well be abandoned. It is only the Court's steadfast refusal to accept the fundamental structural importance of that doctrine, reflected in Hans and the other cases discussed above, that permits it to regard abrogation through Article I as an open question, and enables the plurality to fight the Hans-Atascadero battle all over again — but this time to win it — on the field of the Commerce Clause. It is a particularly unhappy victory, since instead of cleaning up the allegedly muddled Eleventh Amendment jurisprudence produced by Hans, the Court leaves that in
I would reverse the judgment of the Court of Appeals on the ground that federal courts have no power to entertain the present suit against the Commonwealth of Pennsylvania.
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.
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
Two statutes are offered by the Court as providing the "unmistakable language" required by our cases to abrogate the States' Eleventh Amendment immunity: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U. S. C. § 9601 et seq. (1982 ed. and Supp. IV), and the 1986 Amendments to CERCLA, found in the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. 99-499, 100 Stat. 1613. I consider both of these statutes in turn.
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. IV), 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
Second, the significance that the Court draws from CERCLA's inclusion of States within its definition of persons is suspect for its impact on other portions of the statute. The definitional section the Court relies on also includes the "United States Government" within the term "person." 42 U. S. C. § 9601(21). Yet Congress also adopted, in CERCLA, an entirely separate statutory provision rendering the Federal Government suable under the statute's liability provision, see § 9607(g). If the Court's views about the significance of including States within the definition of persons is correct, then § 9607(g) was wholly redundant, because — by including the United States Government within the definition of persons — Congress had already stripped the Federal Government of its sovereign immunity.
Finally, and most importantly, the Court's reading of CERCLA employs the precise analytical approach we rejected in Employees v. Missouri Dept. of Public Health and Welfare, 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 damages remedy. Id., at 282-283. Nonetheless, in Employees, we held that Congress had not thereby abrogated the States' Eleventh Amendment immunity;
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.
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.
Although Congress entitled the amendment "STATE OR LOCAL GOVERNMENT LIMITATION," the Court disparages the idea that § 9601(20)(D) was enacted solely as a limitation on governmental unit liability. The Court asserts that such a view ignores that § 101(20)(D) "would be unnecessary unless" the States could be liable under § 9607. Ante, at 8. But everyone agrees that States may be liable under § 9607: the liability of the Commonwealth of Pennsylvania to the United States. Section 9601(20)(D) provides a significant reduction of that potential liability, as it limits the circumstances under which state and local governments will be forced to pay the United States Government for cleanups at involuntarily acquired sites. Given this fact, § 9601(20)(D) makes
There is a second fact about the relevant part of SARA that makes it an odd candidate for an Eleventh Amendment abrogation provision: it only applies to facilities acquired by state and local governments "involuntarily . . . by virtue of [their] function[s] as sovereign." See § 9601(20)(D). If this amendment is the means by which Congress intended to make the States liable to suit, it did so only with respect to those properties which a State acquired involuntarily; States would remain immune for sites which they owned and operated by choice. A State would be immune from private suit under § 9607 for costs associated with the cleanup of a state-created, owned, and operated hazardous-waste dump, but it would be liable for discharges at sites it acquired when an owner abandoned his property. Surely if the two cases are to be distinguished, the logical distinction would be exactly the opposite one.
Recognizing that Congress could not have intended such a result, the Court avoids this conclusion by saying that this part of SARA "explains and qualifies the entire definition of `owner or operator' — not just that part of the definition applicable to involuntary owners." Ante, at 12-13. But this is plainly wrong: the portion of the sentence which the
The Court argues that the last clause of the last sentence of § 9601(20)(D) — making involuntary-owner state and local governments that cause the release of toxic chemicals "subject to the provisions of [CERCLA] in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity" — provides the clear statement of abrogation required by our cases. But like the Court's reliance on the inclusion of States within CERCLA's definition of "persons" subject to the Act (which I discussed above),
The provision, however, has meaning as something less than an abrogation provision because, like the statute in question in Employees, it exists to make the States liable to the Federal Government. While the Court is surely correct when it observes that, under United States v. California, 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 282-283. 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.
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
My view on the statutory issue has not prevailed, however; a majority of the Court has ruled that the statute, as amended, plainly intended to abrogate the immunity of the
Accordingly, I would affirm the judgment of the Court of Appeals.
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 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.
"(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."
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.
"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."
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.
In addition, Congress also adopted in SARA a limitation on state and local government liability (to the Federal Government) for actions taken at toxic waste sites in response to emergencies. Pub. L. 99-499, § 107(d)(2), 100 Stat. 1629; 42 U. S. C. § 9607(d)(2) (1982 ed., Supp. IV). As the House Commerce Committee observed, this legislative exemption was designed to "remov[e] a disincentive for governments to respond to emergencies covered by CERCLA." H. R. Rep. No. 99-253, pt. 1, p. 73 (1985). Thus, Congress did not view ever expanding governmental liability as the only way to achieve CERCLA's ends.
Of course, even if policy reasons did counsel expansive state liability under CERCLA, our "clear statement" rule mandates that the choice is to be left to Congress — to resolve with an explicit declaration of its decision — and not to be implied by this Court.
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, 285-287 (1973).
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.
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 pre-emptive power to set aside any state-law immunity doctrines for such local government entities, without necessarily going so far as to execute an "unmistakably clear" abrogation of state government immunity. Cf. Quern v. Jordan, 440 U.S. 332, 338-341 (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.
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]." 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.