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United States v. Union Gas Co.

filed: November 3, 1987.


On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 83-2456.

Weis, Higginbotham, Becker, Circuit Judges.

Author: Becker


BECKER, Circuit Judge.

This appeal is before us for a second time, following remand by the Supreme Court. It presents the same ultimate question that we addressed earlier: does the eleventh amendment bar defendant-third party plaintiff Union Gas Company from suing the Commonwealth of Pennsylvania in federal court for monetary damages in an action arising under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund), 42 U.S.C. § 9601 et seq. (1982). See United States v. Union Gas, 792 F.2d 372 (3d Cir. 1986) (Union Gas I). In our earlier decision, we affirmed the district court's judgment determining that the eleventh amendment barred the suit. The Supreme Court granted certiorari, vacated our earlier decision, and remanded the case "for further consideration in light of the Superfund Amendments and Reauthorization Act of 1986 [SARA], Pub. L. No. 99-499." Union Gas v. Pennsylvania, 479 U.S. 1025, 107 S. Ct. 865, 865, 93 L. Ed. 2d 821 (1987).

We now reverse the district court's judgment, concluding that, in contrast to the legislative language upon which we based Union Gas I, SARA provides CERCLA with the requisite unmistakably clear language needed to abrogate the states' eleventh amendment immunity.*fn1 This conclusion on specificity requires us to reach an important, difficult and controversial issue -- the power of Congress to abrogate the eleventh amendment not by the later fourteenth amendment but by the commerce power of the earlier Article I. We conclude that Congress possessed the constitutional power to abrogate the immunity and that we must apply this valid congressional enactment to the present case.


Our earlier opinion, Union Gas I, set forth both the facts and the procedural history of the case in detail. See 792 F.2d at 374-75. We briefly review them here.

Predecessors of Union Gas Company owned and operated a facility that allegedly released hazardous substances at a site near Brodhead Creek in Stroudsburg, Pennsylvania. Long after the plant had been closed and dismantled, the Commonwealth of Pennsylvania, acting pursuant to an easement for flood control, excavated at the former Union Gas site and struck a large deposit of hazardous substances that began to seep into Brodhead Creek. Alerted to the seepage, the Environmental Protection Agency (EPA) ordered a clean-up, which Pennsylvania and the United States performed jointly. The United States, expending a total of approximately $720,000, reimbursed the Commonwealth for all of its costs.

The United States sued Union Gas in the district court for the Eastern District of Pennsylvania under CERCLA, 42 U.S.C. §§ 9604, 9607 (1982), for recoupment of costs incurred in cleaning up the Brodhead Creek spill. Union Gas, in turn, filed a third-party complaint against Pennsylvania, alleging that the Commonwealth had "negligently caused, or contributed to, the discharge" and should therefore shoulder at least part of the clean-up costs. 792 F.2d at 375. Believing that the eleventh amendment barred Union Gas' suit against it, the Commonwealth moved to dismiss, and the district court granted the Commonwealth's motion. Subsequently, the United States and Union Gas settled the principal action and the district court dismissed the lawsuit.

Union Gas thereupon appealed the district court's dismissal of Pennsylvania as a defendant, and a divided panel of this Court affirmed.*fn2 Noting that the Supreme Court requires that "Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself," Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 87 L. Ed. 2d 171, 105 S. Ct. 3142 (1985) (footnote omitted), the panel found no such unmistakable expression of intent to abrogate in CERCLA.

Union Gas petitioned for certiorari on October 8, 1986. On October 17, the President signed the SARA amendments to CERCLA. Thereafter, the Supreme Court vacated our prior opinion and judgment and remanded the case for reconsideration in light thereof.


The eleventh amendment provides 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.

U.S. Const. amend. XI. Although the amendment does not expressly address suits against a state by its own citizens, the Supreme Court has interpreted it as embodying state sovereign immunity and has therefore constructed a presumptive bar against suits by citizens of the defendant state. See Welch v. State Department of Highways and Public Transportation, 483 U.S. 468, 107 S. Ct. 2941, 97 L. Ed. 2d 389 (1987); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984) (Pennhurst II); Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Hans v. Louisiana, 134 U.S. 1, 33 L. Ed. 842, 10 S. Ct. 504 (1890); see also infra typescript at 27-28 (discussing extent of presumption).

A. Standards for Imputing Congressional Intent to Abrogate the Eleventh Amendment

In our original panel opinion, we noted that eleventh amendment immunity "can be avoided in only two ways: (a) Congress can abrogate it by providing through statute for suits against states, or (b) states can waive their sovereign immunity and consent to be sued." Union Gas I, 792 F.2d at 376 (emphasis in original). After the vacatur of our previous opinion, the Supreme Court decided Welch and noted the same two exceptions to the eleventh amendment's reach. See 107 S. Ct. at 2945-46.

We also explained in Union Gas I that, because of "the eleventh amendment's importance in maintaining the balance of power between state and federal interests," 792 F.2d at 376, the Supreme Court requires Congress to "express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself." Id. (quoting Atascadero State Hospital v. Scanlon, 473 U.S. at 243); see also Pennhurst II, 465 U.S. 89, 99, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); Quern v. Jordan, 440 U.S. 332, 342-45, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979)

The Court has insisted that the statute, when read literally, not merely allow suits against the state, but that it do so with such specificity that it is clear that Congress consciously and directly focused on the issue of state sovereign immunity and chose to abrogate it.

792 F.2d at 376 (citations omitted).

The Supreme Court reaffirmed these principles in Welch, which emphasized that Congress can create an exception to the reach of the eleventh amendment only if it expresses its intent to do so in unmistakable language in the statute itself. Welch overturned, at least in part, the decision in Parden v. Terminal Railway of Ala. Docks Dept., 377 U.S. 184, 12 L. Ed. 2d 233, 84 S. Ct. 1207 (1964), in which the Court had found that Congress had intended to abrogate states' eleventh amendment immunity when it enacted the Federal Employers' Liability Act (FELA) and regulated "[e]very common carrier by railroad while engaging in commerce between any of the several States. . . ." 45 U.S.C. § 51 (1982). "Every common carrier," held Parden, included state-owned railroads and thus abrogated their eleventh amendment immunity. Welch explicitly overruled this holding in Parden, reinterpreting the very same provision of the FELA as it was incorporated by reference in the Jones Act.

Although our later decisions do not expressly overrule Parden, they leave no doubt that Parden's discussion of congressional intent to negate Eleventh Amendment immunity is no longer good law. . . . In subsequent cases the Court consistently has required an unequivocal expression that Congress intended to override Eleventh Amendment immunity. Accordingly, to the extent that Parden v. Terminal Railway . . . is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled.

107 S. Ct. at 2948 (citations and footnote omitted).

B. CERCLA and the Eleventh Amendment

In Union Gas I, we found that the language and structure of CERCLA did not sufficiently evince Congress' intention to abrogate the states' eleventh amendment immunity. SARA has now changed both the language and structure of CERCLA, and, as we explain below, SARA demonstrates ...

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