Pennsylvania v. Union Gas Company

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

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


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?

It’s from being sued in federal court, isn’t it?

John G. Knorr, III:

–By a private party.

And is it not, it’s not immunity from liability.

John G. Knorr, III:

I think it amounts to much the same thing in the case of the states–

Well, why is that?

I mean, if you’re liable under a federal statute, if you can’t sue in federal court, you could sue someplace else.

John G. Knorr, III:

–Well, not in this case.

In this case Congress has given exclusive jurisdiction to the federal courts.

You mean in this case it’s the same thing.

John G. Knorr, III:

In other cases it might not.

But normally liability and jurisdiction really don’t go hand in hand.

John G. Knorr, III:

That is true.

And, of course I suppose it hurts you that it doesn’t in this case.

John G. Knorr, III:

I don’t know, in this case it does because–

Well, if Congress knew that and said the states are really liable, and therefore, federal courts have jurisdiction.

John G. Knorr, III:

–But they didn’t, they didn’t do anything–

Well, they didn’t expect their liability provision to be empty.

Don’t you think it was supposed to be recoverable somewhere?

John G. Knorr, III:

–Oh, it is.

States are liable to the United States, and under this kind of a statute, only to the United States.

Well, except for the Eleventh Amendment, do you suppose that they could be sued by a private party and rightfully claim liability?

John G. Knorr, III:

Well, except for the Eleventh Amendment, certainly.

So you agree that the states were made liable.

John G. Knorr, III:

There is… oh, certainly there is liability here.

There is liability to the federal government, but because of the fact that exclusive jurisdiction of these causes of action is within the federal courts, since the Eleventh Amendment is a bar in the federal courts, I don’t see any circumstances where a state could be held liable to a private party.

So you’re really saying that the provision in SARA for state liability should be construed as not providing for liability to private parties.

John G. Knorr, III:


I think it remains, the statute remains very–

Even though, even though on its face it would seem to apply to private parties as well as to the federal government?

John G. Knorr, III:

–I think the statute is very similar to the statute that was construed in the Employees of Missouri case.


John G. Knorr, III:

And in that case as well there was certainly literal inclusion of the states among the potential defendants but there was not the explicit, unmistakable clarity necessary, that this Court has found to be necessary to make sure that Congress has specifically and expressly focused on the issue of Eleventh Amendment immunity, that this kind of general language, imposing liability on states, among others, is not enough.

And I think the inclusion of local governments in that last clause is very telling.

I think that it’s very difficult to say that Congress was focusing on the Eleventh Amendment immunity here.

Otherwise they would not… this is not what Congress would have written under those circumstances.

And I think the proof of that is to look at what Congress did write virtually, virtually the same day, at almost the identical moment, they were considering amendments to the Rehabilitation Act in response to the Court’s Atascadero decision.

And what they said there was this.

A state shall not be immune under the Eleventh Amendment from suit in federal court for a violation of, and then they list the statutes.

That’s a clear statement under Atascadero.

This language in SARA, we submit, is not even close to a clear statement.

As I said, if the Court agrees, there is no need to go any further in this case.

But I will not talk about the constitutional issues that we’ve briefed.

Union Gas has asked the Court to re-examine and reverse its… or overrule its decision in Hans v. Louisiana, and I will get to that in a minute.

But I’d like to talk first about the somewhat different question of the proper relationship between Congress’s powers under Article I of the Constitution on the one hand, and the Eleventh Amendment on the other; more specifically still, whether under its Article I powers, specifically the Commerce Clause, Congress may unilaterally abrogate the Eleventh Amendment immunity that a state would otherwise enjoy.

And when the Court has looked at this issue in the past in cases such as the Parden case, it has employed a two-sided or two-step inquiry: first, did Congress intend to subject the states to liability; and second, is there any evidence of state consent to suit in federal court?

–This argument, I gather, doesn’t relate at all to Section 5 of the Fourteenth Amendment, does it?

John G. Knorr, III:

I’m sorry, Justice Brennan?

Section 5 of the Fourteenth Amendment.

John G. Knorr, III:

No, this does not.

Under that, Congress could abrogate the Eleventh Amendment.

John G. Knorr, III:

Under that, Congress may undoubtedly abrogate the Eleventh Amendment immunity, but in the Article I context, the Court has in the past locked for some evidence of consent on the part of the state.

Now, the consent can be constructive rather than express.

Congress may act to induce consent, and Congress may act to define what will be construed as consent, but consent of some kind there has to be.

And I think it’s important to remember that in this case Union Gas apparently concedes, because they haven’t mentioned the issue in their brief, that nothing Pennsylvania did or is alleged to have done can be construed as consent to federal jurisdiction here because everything Pennsylvania is alleged to have done they did before the passage of the Superfund Act.

Union Gas doesn’t rely on any theory of consent.

Their theory is that consent is unnecessary and irrelevant, and they rely to support that argument on the idea that a unilateral ability to abrogate immunity is somehow necessary to vindicate Congress’s Article I powers.

But this, I would say, is exactly the concern that this Court recognized and addressed in Ex parte Young.

These kinds of Supremacy Clause concerns are exactly what the Court recognized and tried to accommodate in Young.

Young is the Court’s effort to balance and accommodate the competing interests of state and national governments.

Union Gas’s approach, the approach they advocate, reconciles, if you will, those competing interests by simply eliminating the legitimacy of the state side of that balance.

John G. Knorr, III:

It’s simply a principle of congressional supremacy.

And that, we submit, is not the proper approach for this kind of delicate constitutional problem.

They rely next, as we’ve already discussed a bit, on Fitzpatrick and on the principle that under its Fourteenth Amendment powers Congress may abrogate immunity.

But what, Fitzpatrick says is that under the Fourteenth Amendment Congress may do what is constitutionally impermissible in other contexts.

Fitzpatrick in the Fourteenth Amendment is the exception that proves the rule.

What they really seem to be suggesting here is that Fitzpatrick was wrongly decided, or at least was wrong in its rationale.

But if you put… the Fourteenth Amendment is not just another addition, is not just another power given to Congress.

It’s not just another limitation on what states may do.

It changes the very nature of the relationship between the states and the federal government.

And it is for that reason, I think, that the Court felt that in order to vindicate that power, it was necessary that Congress be able to abrogate the Eleventh Amendment.

But if the Fourteenth Amendment simply stands on the same footing as Article I, then what we are left looking for is some general principle that Congress may set aside what would otherwise be constitutional limitations whenever it wants to.

And I don’t know of any support for that principle.

We believe that Fitzpatrick was correctly decided, and also, that the analysis in Parden is correct and ought to remain a part of the Court’s Eleventh Amendment analysis.

Consent of some kind in this context is necessary, and consent is entirely, and I believe concededly absent in this case.

I’d like to move on now, if I may, to the… to the last, question that the parties have presented.

Would you say that the only basis for liability of the state is if the state did something?

John G. Knorr, III:

The way it ordinarily works is–

Well, that’s what the statute says, isn’t it, that the state has to do something to contribute to the release of whatever it is that shouldn’t be released?

John G. Knorr, III:

–No, not ordinarily.

Ordinarily the Superfund Act is a strict liability statute, and no one need do anything particularly to be subject to liability.

Well, I know, but 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 the hazardous substance.

John G. Knorr, III:

Oh, in that case, in the case of property that was acquired involuntarily–

Exactly, which is this case, isn’t it?

John G. Knorr, III:

–No, it’s not.

The state, how did they get it?

John G. Knorr, III:

I believe we got it through the ordinary eminent domain process.

And is state liability premised, though, on this provision?

It is not?

John G. Knorr, III:

It’s only… it is not premised on the idea that we acquired the property involuntarily.

It’s premised on the idea that the last clause of this very narrow amendment is somehow a general abrogation of Eleventh Amendment immunity under all circumstances.

John G. Knorr, III:

And that’s why I said that this is part… that clause is part of a very narrow provision which as a whole was intended to narrow, not to expand the liability.

Well, before this was passed, was a state ever liable to the United States in a voluntary situation?

John G. Knorr, III:

I don’t know if there were any cases, but it would have been.

But a private party couldn’t… could never have sued a state because of the Eleventh Amendment.

John G. Knorr, III:

That is correct.

Because they could only sue in the federal court.

John G. Knorr, III:

That is correct.

Union Gas, of course, has asked the Court again to re-examine its decision in Hans and to overrule it.

The attack comes on two grounds.

Hans, first of all, is said to have been incorrectly decided as a matter of a historical event or a historical fact.

This is something that has been explored in great detail and with great ability, primarily in the opinions of this Court in the past, and I don’t know that there is anything for me to add to the detail of that historical argument.

I will say only that we submit that as a matter of history there is ample support for the holding in Hans, and it seems to me that when you have a case on which the courts and the Congress and the states have relied for a century now, a case that has become so much a part of the fabric of our law in federal-state relations, you need to do more to undercut it than simply come forward with pieces of historical evidence that could possibly have been read the other way.

In a manner of speaking, I–

Can you point to specific instances in which the states have relied on Hans v. Louisiana?

You say there’s a general understanding.

John G. Knorr, III:


Can we really say the states have somehow relied on Hans v. Louisiana?

John G. Knorr, III:

–I think they have relied on the idea that they cannot simply be subjected to suit in federal courts unless there is some abrogation of that immunity by Congress.

Well, do you think there’s any historical evidence that the states have behaved differently because Hans v. Louisiana is on the books?

John G. Knorr, III:

That would be very difficult to prove.

I don’t know how you would go about proving such a thing.

Well, if that’s so, would it be fair to say that the states have not, and really could not rely on Hans v. Louisiana?

John G. Knorr, III:

Well, I think that any legal act, if it is affected by a legal rule that has been around for a century, can be said to rely on it.

I would say that in the same way that–

But you can point to nothing specific?

John G. Knorr, III:

–I don’t know what there would be, Justice Kennedy, in the way of specific.

Well, you could speculate about a lot of things, I suppose, couldn’t you?

I could say states might not have gotten into all sorts of businesses that they are now in if they knew that they could be subjected without their own consent to civil liability, liability to private individuals.

You might speculate that.

John G. Knorr, III:

I might speculate it, or I might speculate that states might not participate in a variety of federal programs if they thought that they would be liable for liability actions.

Or you might speculate that the Seventeenth Amendment might not have been supported by the states if they knew that along with it went their inability as states to prevent the assessment of liability to private individuals.

John G. Knorr, III:

I might.

As I… I’m not here to–

We really don’t know, I suppose, do we?

John G. Knorr, III:

–I don’t think that we do, but I think that we do know that it has been a part of our law for an awfully long time, and that the point I’m trying to make is that Hans… it there is any doubt, Hans should receive the benefit of that doubt.

Well, one can also, I assume, presume that the state would generally obey the law, and its policy would be to obey the law.

It certainly wouldn’t say I’ll buy this hazardous piece of property because I know nobody can sue us whereas they might sue a private party.

I would assume they are conscious of their obligations to conform to the law, and we should presume they–

John G. Knorr, III:

I think we should presume that the states try, at least, to behave in a responsible manner.

–That they wouldn’t take a course of action just because they felt they wouldn’t get sued.

Well, they would be sued, I take it, by the federal government under this statute if they mismanaged hazardous property.

John G. Knorr, III:

They certainly… I would assume that they would be.

They certainly could be.

It’s not at all the case that states are getting a free ride under this statute.

It’s perhaps relevant here to point out that there is not only the question of liability if we’re sued by the federal government, but as a programmatic matter under the statute, we are required to pick up 10 percent of the costs of the federal government in all of the clean-up activities that the federal government undertakes in our state.

That’s something that we have to agree to do as a condition of any federal clean-up.

So it certainly isn’t the case that we’re free just simply to ignore the problem.

The only final point that I would like to make is that Hans is also attacked on the grounds that it is somehow a harmful decision, that it’s a pernicious influence in our law.

I think that that is very far from being the case.

I think that we’ve always felt in this country that one of the ways, and maybe the primary way, that you protect a free society is to diffuse governmental power among as many pieces of the government as you can, and I think that Hans, in its way, is a part of that structure.

It’s a way of preserving to some degree the independence of the states from the federal government.

Could I ask you, what was the basis for the third party claim against the state?

I mean, what provision allows such a claim, purported to allow such a claim?

John G. Knorr, III:

It would be Section 9607 of the act, which provides that any… and these are all terms of art… any owner or operator of a facility from which there is a discharge of hazardous material is strictly liable for the clean-up costs.

And that covers a suit by a, a suit by a private party against another private party who was an owner.

John G. Knorr, III:


So that’s where a private party gets the authority.

John G. Knorr, III:

The private party would get the authority from the–

Well, now, SARA said that, that amendment said that the involuntary state operator is liable if he contributes to the discharge.

John G. Knorr, III:

–Or local government operator.

Yes, all right, to the same extent as a private party, a private owner would be under 9607.

John G. Knorr, III:

That’s correct.

Now, isn’t that on… doesn’t that on its face suggest that the state was to be suable under 9607 to the same extent as a private party?

John G. Knorr, III:

It might but for the way this Court has construed similar statutes and employees and but for this Court’s Atascadero decision.

I think that there is a plausible alternative explanation which is–

Because if an involuntary state owner and subsequent discharger is liable to a private party, you would think a voluntary, a state which has voluntarily gotten into that position, would be, too.

John G. Knorr, III:

–That’s where it would lead you, but you are then left back with the fact that there is nothing in the original statute that justifies that reading.

That’s where you… that’s where that leads you.

As I was saying, I think that Hans does play its part in keeping, preserving the diffusion of government power, and I believe that it should be allowed to continue to play that part.

And unless any further questions arise from the Court, I will reserve the balance of my time for rebuttal.

Thank you, Mr. Knorr.

I will hear now from you, Mr. Swift.

Robert A. Swift:

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

Congress’s purpose in achieving a comprehensive clean-up of contamination sites in the United States will be frustrated if an important participant in the cause of that contamination, the states, cannot be sued for damages by private individuals.

In seeking affirmance of the result in the lower court, Union Gas urges this Court first to overrule Hans v. Louisiana or, absent that, to rule that Congress was authorized to, empowered and did abrogate state immunity from private suit in CERCLA.

Let me address Hans v. Louisiana first.

Hans improperly extended the Eleventh Amendment to bar causes of actions well beyond its plain meaning.

Hans was based on a pre-constitutional notion that states enjoyed sovereign immunity and that this was incorporated into the Constitution by implication.

The Constitution, after all, was a compact of the people to form a nation and create a sovereign power.

It was a system of delegated powers in which the people surrendered much of the state’s power to a national government.

The Constitution assumed the existence of the states by placing prohibitions on them, but it did not grant the states substantive sovereign rights.

The Constitution itself contains no express or implied grant of sovereign immunity.

The states did, however, retain sovereignty as to matters not delegated to the federal government, but at least as regards the Commerce Clause, state sovereignty was surrendered by the people.

Essential to the constitutional framework was that the federal courts, this Court, would have the final say as to the Constitution, the federal laws, and the treaties.

Thus, Article III of the Constitution defines jurisdiction of the federal courts in categories of subject matter as well as parties.

The federal courts, on one hand, were entrusted with being the interpreters of the Constitution, laws and treaties; and secondly, with being the neutral forum for diverse parties.

Excuse me.

The notion that the states’ compliance with the Constitution has to be enforced by private suits in civil, in federal courts is no stronger, it seems to me, than the notion that the federal government’s compliance with the provisions of the Constitution has to be enforced by private suits in federal courts, is it?

Is there any reason why the one is more essential to preserving the Constitution than the other?

Robert A. Swift:

In terms of preserving the Constitution, I think the important part is that both be subject to suit in federal court–

But we have a doctrine of federal sovereign immunity, don’t we?

Robert A. Swift:

–Well, yes, that’s correct, we do have a doctrine, but–

And where is, where is that writ in the Constitution?

Robert A. Swift:

–Well, that is implied into the Constitution because the Constitution was what created the United States as the sovereign.

It did not create states as sovereigns.

I don’t see why whether it created them would be the reason for the implication.

It seems to me the reason for the implication would be the necessity of the matter.

I don’t see the necessity for suit in one case any more than the other.

Robert A. Swift:

It may be then, Mr. Justice, you may be leading to this, that sovereign immunity itself is an outmoded concept; it’s a relic of the law.

And bear in mind… I know you’re familiar with the academics and the history and the scholars in this area, but when the colonies were originally formed, most of their charters provided that they could sue and be sued in the courts.

And when the nation was formed under that Constitution, the states… the people gave up much of the rights of the states.

And certainly the language of Article III, literally read, would indicate that they understood state citizen diversity as being one grounds, and a separate ground for jurisdiction in the federal courts, as well as federal subject matter jurisdiction.

What this leads up to, and I think it’s appropriate to get to, is the Chisholm case.

Chisholm presented the first test of federal court jurisdiction over an action against a state by a citizen of another state for money damages.

Now, the facts of Chisholm I know are well known to this Court.

They’ve been discussed in many of your decisions.

What is important about Chisholm is that jurisdiction was predicated on the state citizen diversity clause of Article III which has codified by the Judiciary Act of 1789.

I submit that Chisholm holding that the Court did have jurisdiction was a correct one.

Justice Wilson and Attorney General Randolph who participated in the case had been members of the Committee of Detail that drafted Article III of the Constitution, and jurisdiction was consistent with the literal language of Article III and that Judiciary Act.

It follows that the Eleventh Amendment adopted in 1794 which overturned Chisholm was a narrowly drawn jurisdiction preclusion clause which left untouched federal subject matter jurisdiction over the states.

If Congress had intended to grant the states sovereign immunity, certainly the last 14 words of the amendment were superfluous.

Those 14 words are remarkably congruent with the state citizen diversity clause of Article III.

Furthermore, if Congress had intended in the Eleventh Amendment to grant broad sovereign immunity to the states, then it would have restricted its own power to create private causes of action for individuals against the states.

Is that an additional argument, that Congress would have restricted its own power to create private causes of action, is that an additional argument in support of your view of–

Robert A. Swift:

I believe it is, Mr. Chief Justice.

–Well, was Congress thinking much in 1794 about creating private causes of action in which people could sue states?

Robert A. Swift:

Well, I don’t believe Congress was because, as you know, the great expansion in Congress’s power and where they enacted a lot of individual rights, came after the Civil War, after–

So why would Congress’s unwillingness to circumscribe its ability to create private causes of action against states have loomed large to any Congress that was sitting in 1794?

Robert A. Swift:

–Because it would have been consistent with granting substantive sovereign immunity at that time.

But why would Congress have worried?

I mean, if they weren’t thinking about creating any private causes of action against states, why would that have concerned them?

Robert A. Swift:

Well, I, of course, can’t put myself in the shoes of Congress at that time, but certainly at that time they were very concerned about their own jurisdiction in federal subject matter cases, treaty cases, for example, and I believe Congress wanted to leave itself all the powers it needed to exercise its Article I rights.

I submit that this Court’s Eleventh Amendment jurisprudence built on Hans is unstable and incoherent.

Hans’ notion that state sovereign immunity is implicit in the Constitution is today assailed by an overwhelming consensus of legal scholars who believe Hans was an error of constitutional interpretation.

Hans was also based on a notion that state sovereign immunity was an essential foundation of the Constitution.

That notion today is outmoded, and a majority of the states have fully or partially dismantled sovereign immunity in their own states.

Pennsylvania is a good example.

The federal government is another example of the partial dismantlement of sovereign immunity, where individuals may bring causes of action against the federal government in federal court.

Well, I suppose some state may have resisted doing that or been unwilling to do that if it thought it could be sued in the federal court.

Robert A. Swift:

Well, I’m not sure that I understand Your Honor’s question.

Well, you say states have dismantled the notion of sovereign immunity?

Robert A. Swift:

Many have in their own states, that’s correct.

And have they dismantled it so that they can be sued in federal court despite the Eleventh Amendment?

Robert A. Swift:

I don’t think that whether a state chose to or not can affect their liability under federal law.

It’s for Congress to make that decision and the Constitution, first, to make that decision.

Well, what about other states?

Do states allow themselves to be sued in the state courts of other states where they have waived sovereign immunity?

I mean, it is one thing to say I’ll be sued in my own courts.

I, you know, if it’s my court I would feel pretty happy about it.


But have the states, have the states allowed themselves to be sued in the courts of foreign states?

Robert A. Swift:

As a general matter, no, and that’s of course the reason for having the national court system, the federal court system whereby those… there would be diversity of citizenship.

But when a state so-called dismantles sovereign immunity, does it… has any state gone on and said well, and you may sue us in a federal court?

Robert A. Swift:

Not to my knowledge, Mr. Justice.

Now, to vindicate–

And I suppose, then, and perhaps they wouldn’t have been as willing to permit suit if they thought they could be sued in federal courts as well as state courts.

Robert A. Swift:

–Well, I submit that the Framers initially contemplated that, and certainly that’s consistent both with Chisholm and the passage–

Well, that doesn’t quite answer my question, but that’s all right.

I didn’t quite understand your answer to Justice Scalia.

Are you suggesting that a state is not suable in the courts of another state?

Robert A. Swift:

–No, I’m not suggesting that.

I think–

Because we held to the contrary on that.

Robert A. Swift:

–I think you have.

Now, to vindicate important principles of federalism, this Court has resorted to exceptions and fiction in its Eleventh Amendment jurisprudence.

For example, this Court allows actions for prospective injunction… injunctive relief against state officials so long as the state itself isn’t sued.

Another example used by Pennsylvania: states can bootstrap this Court’s jurisdiction by consenting to jurisdiction.

Also, counties and municipalities have no immunity, and also… and which we’ll… I’ll discuss in a moment… Congress may abrogate state sovereign immunity.

This is an exception that this Court has created to vindicate those important principles of federalism after Hans.

May I ask you on your consent part, do you think a state could consent to diversity jurisdiction if an action was brought by a citizen of another state?

Robert A. Swift:

I’m not, I’m not sure I understand the question.

Well, say a citizen of New York would like to sue the State of Pennsylvania in the federal court in Pennsylvania.

Could the State of Pennsylvania consent to that diversity jurisdiction?

Robert A. Swift:

I think under the Constitution there’s a problem; the Constitution being a system of delegated powers, that it isn’t up to a state to decide what the jurisdiction of this Court is to be.

But that is a doctrine that this Court has used as an exception.

I know in a lot of federal question cases, but do you… but I’m just asking you, under your theory of what, of the proper construction of the Eleventh Amendment, could diverse… could the State of Pennsylvania consent to a diversity action brought by a citizen of New York?

Robert A. Swift:

Not under the theory that I have espoused today.

So they could–

Robert A. Swift:

And it’s similar, and this is an easy way of thinking of it, to the principle that parties may not by consent stipulate to federal court jurisdiction.

By overturning Hans, this Court can instill clarity and fairness in its Eleventh Amendment jurisprudence.

Congress has created numerus federal rights since Hans, rights that often can best be vindicated by private action against violators for monetary awards.

Prospective injunctive relief is frequently not enough.

In certain statutes such as CERCLA, Congress permitted individual actions against states but granted the federal courts exclusive jurisdiction, and this gets to the point that Mr. Justice White raised earlier during Pennsylvania’s argument, that this is a statute that is jealous of the interpretation to be placed on it and provided that the federal system was to have exclusive jurisdiction.

So Pennsylvania cannot sue… rather, Union Gas cannot sue Pennsylvania in state court.

–Or anybody else under this statute.

Robert A. Swift:

Union Gas can sue other parties… well, that’s correct, not in state court in Pennsylvania.


Where is the provision that provides for exclusive federal jurisdiction?

Robert A. Swift:

I believe it–

Is it expressed?

Robert A. Swift:

–It’s in 112 or 113.

I will find it for you in a moment.

All right, that’s all right, Thank you.

Robert A. Swift:

It’s in 113(b), which is at 42 U.S.C. 9613.

Thank you.

Is it in your brief?

Robert A. Swift:

Yes, It is.

In this case, it would be unfair to prevent Union Gas from recovering a monetary award against Pennsylvania which caused the release of the contamination that Union Gas has now paid to clean up.

Overturning Hans will not result in a wholesale change in the result of Eleventh Amendment decisions of this Court–

Has Pennsylvania waived its sovereign immunity to tort suits generally?

Robert A. Swift:

–It has partially waived that immunity by statute.

In Pennsylvania–

Was there any other theory nuisance, Ryland v. Fletcher type of action that this Union Gas could have relied on in this case?

Robert A. Swift:

–Well, not in this case because this was an action begun by the United States suing Union Gas.

Yes, but would Union Gas have had a independent right of recovery under state law?

Robert A. Swift:

Not necessarily because that right may be cut off by the state sovereign immunity act.

So the state has not waived its sovereign immunity in this instance.

Robert A. Swift:

That’s an issue that hasn’t been litigated.

I’m not prepared to concede it one way or another.

Overturning Hans won’t result in a wholesale change in this Court’s Eleventh Amendment jurisprudence.

A couple examples I think should suffice.

In both Atascadero and Employees, the results in those cases were changed by Congress, in both cases within a year or two after this Court found insufficient evidence of congressional intent to abrogate.

As with regard to state law claims, there probably would be no change.

Once again, so long as this Court were to continue a requirement that there be some intention stated within the act that states are among those parties that can be sued, that should be sufficient.

For example, the clarity that I would suggest would be that which this Court requires in interpreting criminal statutes because I think that if a criminal statute is clear enough to deprive someone of their own personal liberty, certainly there should be no higher standard of clarity when… in an action seeking monetary damages against the state.

Now, but assuming the continued vitality of Hans, this Court should nonetheless treat the Eleventh Amendment as a jurisdiction preclusion clause, not a blanket grant of sovereign immunity.

Congress has authority under Article I of the Constitution to abrogate the Eleventh Amendment’s jurisdiction preclusion.

Congress must have the authority necessary to exercise its delegated powers under Article I.

The Eleventh Amendment, after all, places no constraint on Congress.

The only constraint is upon the judicial system.

Robert A. Swift:

For Congress to exercise its delegated powers, the judicial branch must have co-equal power to enforce its laws.

This was certainly the view of Chief Justice Marshall writing in Cohens v. Virginia.

Only if the Eleventh Amendment is construed as a jurisdiction preclusion clause which can be abrogated can the laws of Congress be the supreme law of the land as the Constitution declares they must.

I’d like to turn–

If we adopted that for this purpose, why wouldn’t… why wouldn’t it apply for diversity purposes as well?

Suppose Congress says under the Commerce Clause we think it’s important that diversity suits against a state should lie?

Robert A. Swift:

–Because that’s directly prohibited by the Eleventh Amendment.

Oh, but you’re saying that that’s just… that’s not a jurisdiction preclusion clause.

Robert A. Swift:

I am saying the Eleventh, the Eleventh Amendment is a jurisdiction preclusion clause, that it precludes citizen state diversity cases but not the federal subject matter cases.

Oh, no, when you said it’s a preclusion clause, I thought you also meant it’s a preclusion clause as to any, any suits by private individuals against the states.

Robert A. Swift:

No, that wasn’t what I meant.

Oh, you’re not admitting that for purposes of this argument.

Robert A. Swift:

Absolutely not.

In fact, my view is to the contrary.

Then I don’t see what this argument… I thought you were.

Robert A. Swift:

CERCLA is amended–

And I take it there’s nothing that would prevent the Congress from imposing punitive damages on states?

Robert A. Swift:

–That’s correct, within the statutory scheme, bearing in mind that the… where the states are protected is through their elected representatives in Congress.

This doesn’t occur in a vacuum, and that, and I don’t believe is consistent, with this Court’s holdings in Garcia v. San Antonio.

Turning to the–

Well, there… you have no evidence really that state Senators deem themselves representatives of a state as an entity as opposed to the Individual constituents?

In fact, isn’t the evidence the opposite?

Robert A. Swift:

–Well, it’s interesting you raise that.

Well, you may recall that under the Constitution as originally written and until amended in 1913, the state legislatures actually elected the Senators, so there was–

And as Justice Scalia pointed out, when the Seventeenth Amendment abrogated that, Hans v. Louisiana was on the books.

Robert A. Swift:

–That’s true, that’s true.

But I submit that Hans was a case of a different time and political climate, certainly where the Court was very concerned about another secession by the Southern states, very concerned about the states’ treasuries being emptied by virtue of the debt collection cases, and also very concerned as it spoke at the end of the Hans decision, that it’s Immoral for states to change their constitutions to prohibit debt collection.

I’d like to address the statutory interpretation for a moment, if I may.

CERCLA defines persons liable under Section 107 to include states.

This is virtually the same definitional language that this Court found to be clear evidence of abrogation in Fitzpatrick v. Bitzer, and bear in mind, Fitzpatrick v. Bitzer came three years after this Court’s Employees decision and two years after Congress had legislatively overturned the Employees decision.

Robert A. Swift:

Fitzpatrick v. Bitzer, you’ll recall, involved a challenge by the states to liability for monetary damage actions under Title VII of the Civil Rights Act of 1964, and in that statute, the persons who were defined to be liable were governments and governmental agencies.

I submit that the language here which uses the word Mr. Chief Justice Rehnquist wrote about as being clear in Fitzpatrick v. Bitzer.

Do you think the language here differs from the language in Employees–

Robert A. Swift:

I do.

I think it’s stronger, and also Employees, bear in mind, was an amendment to an act.

This was an original act that defined states as being liable.

In Employees, we had a history under the Fair Labor Standards Act of 30 years where states were not liable, and we had amendments in 1966 which changed that, or appeared to change just the definition without changing the liability aspects.

And there is another important distinction which relates to Justice White’s question, and that is under the Fair Labor Standards Act, the Department of Labor could bring suit, or private individuals could bring suit in state courts.

Here there is no such opportunity.

Union Gas can’t sue Pennsylvania in state court under this act.

–Do you rely principally on the definitional section in the amendment?

Robert A. Swift:

Well, I do, but it was, as you commented earlier, it was amended in SARA, and that language that you singled out, Mr. Justice, was a virtual replication of the language that the federal government used in Section 120 of the act to waive its own sovereign immunity, and if there were ever clear language, I submit this is it.

Now, Pennsylvania also commented that nowhere in this act is the Eleventh Amendment referred to.

Well, I would refer the Court–

What do you make of, what do you make of the 9607(D)(2) which I take it was a part of this same amendment?

It says no state or local government shall be liable under this subchapter for costs or damages as a result of actions taken in response to an emergency, but it says this paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by a state or local government?

Robert A. Swift:

–I think that’s supportive language.

But you’ve never mentioned that, have you?

Robert A. Swift:


Well, I think, I believe it was mentioned in the court below, but it wasn’t one of the things that we briefed.

But I think that is supportive language that Your honor has seized upon.

But I think even more important, as Pennsylvania mentioned, there’s no reference to the Eleventh Amendment in this statute.

Well, I suggest that the Court read Section 159 of the act which deals with citizen suits, and there Congress was very careful to say that people may bring citizen suits, but subject to the Eleventh Amendment.

So there is a clear distinction between Section 107(a), which is your general liability clause, and citizen suits, which were specialized suits, not by people who had spent money in a clean-up but people who wanted to sue to enforce an order of a federal agency.

Does the section that Justice White just referred to, does that provide for liability to private individuals necessarily, that provision?

Robert A. Swift:

I don’t believe it does refer to it.

I mean, that liability could just be referring to liability to suit by the United States.

Robert A. Swift:

Well, I submit that’s not how I would read the act.

Well, I’m sure, but–


Robert A. Swift:

But after all, Mr. Justice, this was… the name of this act was the Comprehensive Act to clean up, and this didn’t occur in a vacuum.

It came after efforts by Congress, several acts which proved–

Well, this specific provision puts the state and the local government, speaks of both of them in the same breath.

Robert A. Swift:

–That’s right.

And yet no one suggests that the local government is immune from suit by a private party.

Robert A. Swift:

That’s right, but you see, the concept of the act is to have a general liability clause with an exception, such as an exception for the sites that are involuntarily acquired.

And Mr. Justice, you seized on a point earlier in asking Pennsylvania a Question that I’d like to elaborate on.

And that is they seize on this exception in the SARA amendment to the definition of owner operator as being indication that states were not intended to be subject to suit under this act.

I submit that it’s illogical to suggest that they can be liable for sites that are involuntarily acquired where they then cause the contamination but they can’t be sued if they buy the property next door to me and contaminate it and it runs off onto my land.

That’s just an illogical interpretation of the act.

I think the logical interpretation is that there’s general liability under Section 107 and that this definition provides one exception.

Mr. Swift, I’d like to come back because I’m not sure we understood each other, to your argument saying that even if there is Eleventh Amendment immunity, Congress can eliminate it by statute.

I find that hard to understand.

Robert A. Swift:

Well, the argument–

We are assuming, I think we have to be assuming for purposes of your argument that the Eleventh Amendment both eliminates diversity jurisdiction over the state’s right in federal court, and eliminates, eliminates federal question suits against states.

Robert A. Swift:

–I don’t think that necessarily follows.

I read the language of the Eleventh Amendment literally, and–

Well, that’s a separate argument.

I mean, that’s the different argument.

That’s the argument that we overrule Hans.

I thought this was a supplemental argument saying even if we don’t overrule Hans–

Robert A. Swift:

–That’s correct.

–the federal government can, by statute, eliminate its effect.

Now, that argument has to assume that Hans is right.

Robert A. Swift:

That’s correct.


So you’re with me so far.

Robert A. Swift:

I’m with you.

Now, if you can eliminate the Hans portion that you don’t like by statute, why can’t you eliminate the diversity portion by statute as well, under the Commerce Clause?

Congress says under the Commerce Clause, we now decide that it’s a good thing to have diversity jurisdiction over states.

Robert A. Swift:

I don’t know that I have a good answer to that, Mr. Justice.

But the point that I’ve harped upon is that Congress must have its core powers unfettered.

Those powers include the power under Article I, Section 8, which is the Commerce Clause, and that power… if Congress determines that in order to vindicate its power it must establish private damage remedies against parties that include states, then I submit that the constitutional scheme permits that.

Well, I think that’s an argument to the effect that Hans was decided wrong.

I don’t think it’s an argument to the effect that if Hans was decided right we can ignore it.

Robert A. Swift:

The other point I would make with regard to the statute is that within this scheme where the Congress had legislation that wasn’t effectively cleaning up the contamination sites in this country, where in each of those acts it had provided for exemption for the states, the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, each gave that broad exemption.

But CERCLA, coming in 1980, did not and I submit that that is strong evidence of Congress’s intention with regard to this statute.

And another strong indicia is the fact that the federal government waived its own liability, and it didn’t just waive it in general terms.

It said as to the executive branch, the congressional branch and even this Court can be sued in federal court should it cause contamination.

And the concept, the overriding concept is that we all need to pull together, we all need to clean up these sites.

It’s a matter of the national health and safety.

In closing, I’d like to observe that sovereign immunity is a relic that has persisted in the law despite the law’s evolution.

State sovereign immunity is not required by nor implied in our Constitution.

And its persistence undermines basic tenets of federalism.

This is the first Eleventh Amendment case before this Court where there is no redress for the state’s wrong unless the claim can be presented in federal court.

Congress’s purpose in achieving a comprehensive clean-up of contamination sites in the United States will be frustrated if an important participant in the cause of that contamination, the states, cannot be sued for damages by private individuals.

The means for permitting Union Gas to obtain redress is to overturn Hans v. Louisiana.

Your time has expired, Mr. Swift.

Mr. Knorr, you have five minutes remaining.

John G. Knorr, III:

Thank you, Mr. Chief Justice.

I think I can perhaps fill in a gap of Pennsylvania law here.

Pennsylvania has enacted a very limited waiver of sovereign immunity in its state courts, but as part of that same statute, expressly preserved its Eleventh Amendment immunity from suit in the federal courts.

That statute is in our reply brief, but it’s codified at 42 PA Consolidated Statute, Section 8521.

Byron R. White:

If there hadn’t been the exclusive jurisdiction provision in this statute, that is, if a private party could have sued in state court, would the waiver of immunity by Pennsylvania cover that suit?

John G. Knorr, III:

Well, if Congress had not given exclusive jurisdiction to the federal–


John G. Knorr, III:

–courts, I think the federal cause of action could very likely have been brought in state courts.

The waiver would have covered that.

John G. Knorr, III:

Well, as to our own waiver of sovereign immunity, I’m not certain.

One of the areas where immunity is waived is in the damages caused by what’s called a dangerous condition of real property.

John G. Knorr, III:

I don’t know for certain, but I think it’s conceivable that that exception might cover this.

But they don’t exclude, they don’t exclude actions against the state arising under federal statute.

John G. Knorr, III:

No, not to my knowledge.

Unless there are further questions, that’s all I have.

William H. Rehnquist:

Thank you, Mr. Knorr.

The case is submitted.