Pennsylvania v. Union Gas Company

PETITIONER: Pennsylvania
RESPONDENT: Union Gas Company
LOCATION: Checker Gasoline Station

DOCKET NO.: 87-1241
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 491 US 1 (1989)
ARGUED: Oct 31, 1988
DECIDED: Jun 15, 1989

ADVOCATES:
John George Knorr, III - on behalf of the Petitioner
John G. Knorr, III - on behalf of petitioner
Robert A. Swift - on behalf of the Respondent

Facts of the case

Question

Media for Pennsylvania v. Union Gas Company

Audio Transcription for Oral Argument - October 31, 1988 in Pennsylvania v. Union Gas Company

William H. Rehnquist:

We'll hear argument next in No. 87-1241, Pennsylvania v. Union Gas Company.

Mr. Knorr, you may proceed whenever you're ready.

John G. Knorr, III:

Mr. Chief Justice, and may it please the Court:

The question in this case is whether a private party may sue a state for damages in federal court under the Superfund Act.

Now, the parties have briefed and the case could present constitutional issues regarding the Eleventh Amendment and about the continuing vitality of this Court's decision in Hans v. Louisiana.

But the first issue is the statutory question of whether Congress intended to subject states to these kinds of actions, and if the Court agrees that Congress did not, then there is no need to reach those constitutional issues.

When the Court of Appeals first looked at the Superfund Act, it found that the statute showed no evidence of a congressional intention to subject states to private liability.

They found that the statute was very similar to that construed in the Employees of Missouri case, that is, states were literally included among the universe of possible defendants, but there was not the specific indicia that this Court has found necessary to override the Eleventh Amendment.

When on remand from this Court, the Court of Appeals next looked at the statute, they looked at it in light of intervening amendments in an act known by its acronym as SARA, and in light of this Court's decision in Atascadero that to affect the Eleventh Amendment Congress must make itself clear, must express itself with unmistakable clarity in the words of the statute, and the Court of Appeals found that unmistakable clarity in the last clause of an exception to a provision that excludes state and local governments from liability under certain circumstances.

When you look at that amendment--

Where is that set forth either in the briefs or in the petition?

John G. Knorr, III:

--The amendment is set forth on pages 3 and 4 of our brief on the merits.

Thank you.

John G. Knorr, III:

The amendment is codified at Section 9601(20)(D), and when you look at it as a whole, it is apparent that it's not about the Eleventh Amendment at all.

What Congress was focusing on here was the very different and very narrow question of what do you do about a unit of government that has acquired a site involuntarily, because under Superfund as it was originally enacted, there is strict liability, and a unit of government could well find itself liable under those circumstances.

When the SARA amending act was going through the Senate, the Senate added a provision that would exclude government liability under those circumstances.

The amendments then went to a conference committee, and in the conference committee an exclusion or an exception to that exclusion was added which provided that even if a site was acquired involuntarily, if the government unit then did something to cause or contribute to the discharge of hazardous materials, there would then still be liability, and it's that provision that the Court of Appeals fastened upon and in which they felt Congress had, with unmistakable clarity, focused on the Eleventh Amendment.

There is, however, no explicit mention of the amendment in the statute.

There is nothing in the legislative history that indicates that Congress was even thinking about the Eleventh Amendment or the problems of government immunity in general--

So do you think unmistakable clarity means explicit reference to the Eleventh Amendment?

John G. Knorr, III:

--I think in light of Atascadero, it would certainly be prudent, but I wouldn't go so far as to say that it is invariably necessary in every circumstance.

Well, what effect do you give to the second sentence of subparagraph (D) if it is not to impose liability?

John G. Knorr, III:

I think that is simply the kind of general liability language, which means that if the unit of government doesn't fit within the first sentence, that is, the exclusion of liability, we are then back to square one with the rest of the statute, and whatever would otherwise control under the statute controls.

I think if you look even in isolation at that last clause of the second sentence, the clause that begins "such a unit of government", you wouldn't find... what you'd find are the following characteristics.

You'd find no mention of the Eleventh Amendment or of state immunity.

You find no mention of state liability to private parties.

You find it is part of a statute which does explicitly mention federal liability, to which the Eleventh Amendment is, of course, no bar.

And you find that even this narrow clause of the statute incudes local governments as well as states.

Now, local governments, of course, don't have any Eleventh Amendment immunity, and it seems to me that this is not the kind of language--

Well, what's the immunity to or from?