ELR Citation: ELR 20818
No(s). 85-1177 (3d Cir. Jun 10, 1986)

The court holds that the Eleventh Amendment bars a defendant in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action from filing a third-party claim in federal court against Pennsylvania alleging that the state is responsible for the hazardous waste releases.The court first holds that the inclusion of states within the class of potential defendants in CERCLA §107(a) is insufficient to abrogate Pennsylvania's immunity from suit. Although §107(a) allows those who have incurred cleanup costs to sue "any person" and §101(21) includes states within the definition of a "person," there is no evidence in CERCLA or its legislative history that Congress intended states to be subject to suit in federal court from private parties. The suggestion in a separate provision from the section imposing liability that states may be sued is insufficient to abrogate the immunity. Moreover, §101(21) also includes the federal government within the definition of person, yet CERCLA explicitly waives federal sovereign immunity in §107(g); if §107(a) were deemed to waive the immunity, §107(g) would be superfluous. The court's refusal to read a waiver of states' immunity into §107(a) does not render that section meaningless, since the section establishes a right of action by the federal government against any states that own or operate hazardous waste sites. The court holds that the subrogation provisions in CERCLA §107(e)(2) also do not abrogate the states' Eleventh Amendment immunity. The section does not mention the Eleventh Amendment or suits against states, and the legislative history provides no support for the argument that Congress intended private parties to inherit all of the rights of the United States including the right to override the states' immunity to suit from private parties in federal court. The court's holding does not render this section meaningless either; private parties may still have causes of action against other private parties or the United States by reason of subrogation. The court rejects defendant's argument that CERCLA taken as a whole abrogates the states' Eleventh Amendment immunity. Statements that the statute is intended to deal comprehensively with the hazardous waste problem fall far short of the unmistakable evidence required to prove that this was Congress' intent. Finally, the court holds that the absence in CERCLA of an explicit Eleventh Amendment limitation is insufficient evidence that Congress intended CERCLA to abrogate the Eleventh Amendment, despite the presence of such a provision in other environmental statutes. Congressional silence should not be used as evidence of express abrogation. A dissent would hold that Congress explicitly abrogated states' Eleventh Amendment immunity by its inclusion of states within the definition of person in §101(21).

Counsel for Appellee
Allen C. Warshaw, Chief Deputy Attorney General
Office of the Attorney General
Strawberry Square, 15th Fl., Harrisburg PA 17120
(717) 787-3391

Counsel for Appellant
David H. Marion, Robert A. Swift
Kohn, Savett, Marion & Graf
2400 One Reading Ctr., 1101 Market St., Philadelphia PA 19107
(215) 238-1700

Before Weis and Higginbotham, JJ.