OCTOBER TERM, 1991
Syllabus
UNITED STATES DEPARTMENT OF ENERGY
v.
OHIO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 90-1341. Argued December 3, 1991-Decided April 21, 1992*
The Clean Water Act (CWA) and the Resource Conservation and
Recovery Act of 1976 (RCRA) prohibit the discharge or disposal of
pollutants without a permit, assign primary authority to issue
permits to the Environmental Protection Agency (EPA), and allow EPA
to authorize a State to supplant the federal permit program with
one of its own under specified circumstances. Respondent State sued
petitioner Department of Energy (DOE) over its operation of a
uranium-processing plant in Ohio, seeking, among other relief, both
state and federal civil penalties for past violations of the CWA
and RCRA and of state laws enacted to supplant those federal
statutes. Although conceding,
inter alia, that both statutes
render federal agencies liable for "coercive" fines imposed to
induce compliance with injunctions or other judicial orders
designed to modify behavior prospectively, DOE asserted sovereign
immunity from liability for "punitive" fines imposed to punish past
violations. The District Court held that both statutes waived
federal sovereign immunity from punitive fines, by both their
federal-facilities and citizensuit sections. The Court of Appeals
affirmed in part, holding that Congress had waived immunity as to
punitive fines in the CWA's federal-facilities section and RCRA's
citizen-suit section, but not in RCRA's federal-facilities
section.
Held: Congress has not waived the National Government's
sovereign immunity from liability for civil fines imposed by a
State for past violations of the CWA or RCRA. Pp. 615-629.
(a) This Court presumes congressional familiarity with the
common rule that any waiver of the Government's sovereign immunity
must be unequivocal. See
United States v.
Mitchell,
445 U. S. 535,
538-539. Such waivers must be construed strictly in favor of the
sovereign and not enlarged beyond what the language requires. See,
e. g., Ruckelshaus v.
Sierra Club, 463 U. S. 680, 685-686.
P. 615.
(b) Although both the CWA and RCRA citizen-suit sections
authorize a State to commence a civil action "against any person
(including ...
*Together with No. 90-1517,
Ohio et al. v.
United
States Department of Energy, also on certiorari to the same
court.
608
Syllabus
the United States ... )," and authorize the district courts to
impose punitive fines under the Acts' civil-penalties sections, the
incorporation of the latter sections must be read to encompass
their exclusion of the United States from among the "person[s]" who
may be fined, see,
e. g., Engel v.
Davenport, 271
U. S. 33, 38. The citizen-suit sections' initial inclusion of
the United States as a "person" goes only to the clauses subjecting
the Government to suit, and a broader waiver may not be inferred.
Both the CWA and RCRA contain various provisions expressly defining
"person" for purposes of the entire section in which the term
occurs, thereby raising the inference that a special definition not
described as being for purposes of its "section" or "subchapter"
was intended to have the more limited application to its own clause
or sentence. This textual analysis gives effect to all the language
of the citizen-suit sections, since their incorporations of their
statutes' civilpenalties sections will effectively authorize
punitive fines where a polluter other than the United States is
brought to court, while their explicit authorizations for suits
against the United States concededly authorize coercive sanctions.
Pp. 615-620.
(c) The relevant portion of the CWA's federal-facilities
section, 33 U. S. C. § 1323(a)-which,
inter alia, subjects
the Government to "all ... State ... requirements ... and process
and sanctions"; explains that the Government's corresponding
liability extends to "any requirement, whether substantive or
procedural ... , and ... to any process and sanction ... enforced
in ... cour[t]"; and provides that the Government "shall be liable
only for those civil penalties arising under Federal law or imposed
by a State ... court ... to enforce [its] order or ...
process"-does not waive the Government's immunity as to punitive
fines. Ohio's first argument, that § 1323(a)'s use of the word
"sanction" must be understood to encompass punitive fines, is
mistaken, as the term's meaning is spacious enough to cover
coercive as well as punitive fines. Moreover, good reason to infer
that Congress was using "sanction" in its coercive sense, to the
exclusion of punitive fines, lies in the fact that § 1323(a) twice
speaks of "sanctions" in conjunction with judicial "process," which
is characteristically "enforced" through forward-looking coercive
measures, and distinguishes "process and sanctions" from
substantive "requirements," which may be enforced either by
coercive or punitive means. Pp. 620-623.
(d) Ohio's second § 1323(a) argument, that fines authorized
under an EPA-approved state permit program are within the scope of
the "civil penalties" covered by the section's final waiver
proviso, also fails. The proviso's second modifier makes it plain
that "civil penalties" must at least include a coercive penalty
since they are exemplified by penalties "imposed by a State ...
court to enforce [its] order." Moreover, the
609
contention that the proviso's "arising under federal law"
modifier is broad enough to include penalties prescribed by
EPA-approved state statutes supplanting the CWA is answered by this
Court's interpretation of the phrase "arising under" federal law in
28 U. S. C. § 1331 to exclude cases in which the plaintiff relies
on state law, even when the State's exercise of power in the
particular circumstances is expressly permitted by federal law,
see,
e. g., Gully v.
First Nat. Bank in Meridian,
299 U. S. 109,
116, and by the probability that Congress adopted the same
interpretation of "arising under federal law" here, see,
e.
g., ICC v.
Locomotive Engineers, 482 U. S. 270, 284-285.
The plain language of the "civil penalties arising under federal
law" phrase suggests an apparently expansive, but uncertain, waiver
that is in tension with the clear waiver for coercive fines evinced
in § 1323(a)'s antecedent text; that tension is resolved by the
requirement that any statement of waiver be unequivocal and the
rule that waivers be narrowly construed. Pp. 623-627.
(e) RCRA's federal-facilities section-which, in relevant part,
subjects the Government to "all ... State ... requirements, both
substantive and procedural (including any requirement for permits
or reporting or any provisions for injunctive relief and such
sanctions as may be imposed by a court to enforce such relief),"
and provides that the United States "shall [not] be immune ... from
any process or sanction of any ... Court with respect to the
enforcement of any such injunctive relief"-is most reasonably
interpreted as including substantive standards and the coercive
means for implementing those standards, but excluding punitive
measures. All of the textual indications of the kinds of
requirements meant to bind the Government refer either to
mechanisms requiring review for substantive compliance (permit and
reporting requirements) or to mechanisms for enforcing substantive
compliance in the future (injunctive relief and sanctions to
enforce it), in stark contrast to the statute's failure to mention
any mechanism for penalizing past violations. Moreover, the fact
that the only specific reference to an enforcement mechanism in the
provision's final sentence describes "sanction" as a coercive means
of injunctive enforcement bars any inference that a waiver of
immunity from "requirements" somehow extends to punitive fines that
are never so much as mentioned. Pp. 627-628.
904 F.2d
1058, reversed and remanded.
SOUTER, J., delivered the opinion for a unanimous Court with
respect to Part II-C, and the opinion of the Court with respect to
Parts I, II-A, II-B, and III, in which REHNQUIST, C. J., and
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. WHITE, J.,
filed an opinion concurring in
610
Syllabus
part and dissenting in part, in which BLACKMUN and STEVENS, JJ.,
joined,
post, p. 629.
James A. Feldman argued the cause for petitioner in No. 90-1341
and respondent in No. 90-1517. With him on the briefs were
Solicitor General Starr, Acting Assistant Attorney General Hartman,
Deputy Solicitor General Wallace, Robert L. Klarquist, and Jacques
B. Gelin.
Jack A. Van Kley, Assistant Attorney General of Ohio,
argued the cause for respondents in No. 90-1341 and petitioners in
No. 90-1517. With him on the brief were
Lee Fisher, Attorney
General, and
Timothy J. Kern and
Terrence S.
Finn, Assistant Attorneys General. t
tBriefs of
amici curiae were filed for the State of
California et al. by
Gale A. Norton, Attorney General of
Colorado,
Raymond T. Slaughter, Chief Deputy Attorney
General,
Timothy M. Tymkovich, Solicitor General,
Martha
E. Rudolph, Cynthia M. Vagelos, and
Mary Capdeville,
Assistant Attorneys General,
Daniel E. Lungren, Attorney
General of California,
Roderick E. Walston, Chief Assistant
Attorney General,
Theodora Berger and
R. H. Connett,
Senior Assistant Attorneys General,
Edwin F.
Lowry,
Deputy Attorney General,
Charles E. Cole, Attorney General
of Alaska,
Grant Woods, Attorney General of Arizona,
Paige Murphy-Young, Assistant Attorney General,
Winston
Bryant, Attorney General of Arkansas,
Richard
Blumenthal, Attorney General of Connecticut,
Warren Price
III, Attorney General of Hawaii,
Larry EchoHawk,
Attorney General of Idaho,
Roland W Burris, Attorney General
of Illinois,
Linley E. Pearson, Attorney General of Indiana,
Bonnie J. Campbell, Attorney General of Iowa,
Frederic J. Cowan, Attorney General of
Kentucky,
Michael E. Carpenter, Attorney General of Maine,
Dennis J. Harnish, Assistant Attorney General,
J. Joseph Curran, Jr., Attorney General of Maryland,
Frank J. Kelley, Attorney General of Michigan,
Hubert H. Humphrey III, Attorney General of Minnesota,
William L. Webster, Attorney General of Missouri,
Marc
Racicot, Attorney General of Montana,
Frankie Sue Del
Papa, Attorney General of Nevada,
Robert J.
Del Tufo, Attorney General of New Jersey,
Tom Udall,
Attorney General of New Mexico,
Lacy H. Thornburg, Attorney
General of North Carolina,
Nicholas J. Spaeth,
Attorney General of North Dakota,
T. Travis Medlock,
Attorney General of South Carolina,
Charles W Burson,
Attorney General of Tennessee,
Michael D. Pearigen, Deputy
Attorney General,
Dan Morales, Attorney General of Texas,
Thomas Edwards, Assistant Attorney General,
Paul Van
Dam, Attorney
611
JUSTICE SOUTER delivered the opinion of the Court.
The question in these cases is whether Congress has waived the
National Government's sovereign immunity from liability for civil
fines imposed by a State for past violations of the Clean Water Act
(CWA), 86 Stat. 816, as amended, 33 U. S. C. § 1251
et seq.,
or the Resource Conservation and Recovery Act of 1976 (RCRA), 90
Stat. 2796, as amended, 42 U. S. C. § 6901
et seq. We hold
it has not done so in either instance.
I
The CW A prohibits the discharge of pollutants into navigable
waters without a permit. Section 402, codified at 33 U. S. C. §
1342, gives primary authority to issue such permits to the United
States Environmental Protection Agency (EP A), but allows EP A to
authorize a State to supplant the federal permit program with one
of its own, if the state scheme would include, among other
features, sufficiently stringent regulatory standards and adequate
provisions for penalties to enforce them. See generally 33 U. S. C.
§ 1342(b) (requirements and procedures for EPA approval of state
water-pollution permit plans); see also 40 CFR §§ 123.1-123.64
(1991) (detailed requirements for state plans). RCRA regulates the
disposal of hazardous waste in much the same way, with a permit
program run by EPA but subject to displacement by an adequate state
counterpart. See generally 42 U. S. C. § 6926 (requirements and
procedures for EP A
General of Utah,
Denise Chancellor, Assistant Attorney
General,
Jeffrey L. Amestoy, Attorney General of Vermont,
Mary Sue Terry, Attorney General of Virginia,
Patrick
O'Hare, Senior Assistant Attorney General,
Kenneth Q
Eikenberry, Attorney General of Washington,
James K.
Pharris, Senior Assistant Attorney General, and
Jay
J. Manning, Assistant Attorney General; for the
Natural Resources Defense Council by
Philip F.
W Ahrens
III; and for the National Governors' Association et al. by
Richard Ruda, Donald B. Verrilli, Jr., and
Barry
Levenstam.
612
approval of state hazardous-waste disposal permit plans); see
also 40 CFR §§ 271.1-271.138 (1991) (detailed requirements for
state plans).
This litigation began in 1986 when respondent State of Ohio sued
petitioner Department of Energy (DOE) in Federal District Court for
violations of state and federal pollution laws, including the CWA
and RCRA, in operating its uranium-processing plant in Fernald,
Ohio. Ohio sought, among other forms of relief, both state and
federal civil penalties for past violations of the CW A and RCRA
and of state laws enacted to supplant those federal statutes. See,
e. g., Complaint , 64 (seeking penalties for
violations of state law and of regulations issued pursuant to
RCRA);
id., , 115 (seeking penalties for violations of state
law and of CW A).l Before the District Court ruled on DOE's motion
for dismissal, the parties proposed a consent decree to settle all
but one substantive claim,2 and Ohio withdrew all outstanding
claims for relief except its request for civil penalties for DOE's
alleged past violations. See Consent Decree Between DOE and Ohio,
App. 63. By a contemporaneous stipulation, DOE and Ohio agreed on
the amount of civil penalties DOE will owe if it is found liable
for them, see Stipulation Between DOE and Ohio,
id., at 87.
The parties thus left for determination under the motion to dismiss
only the issue we consider today: whether Congress has waived the
National Government's sovereign immunity from liability for civil
fines imposed for past failure to comply
1 Federal- and state-law fines differ both as to their amounts
and the sovereign that gets them, state-law fines going to the
State, and federallaw fines going to the federal treasury. Ohio's
state-law fines are currently lower than their federal-law
counterparts. See generally Tr. of Oral Arg. 36-37, 49-52; see also
Brief for Respondent Ohio 36. The parties have agreed that if DOE
is liable for both federal- and state-law fines it will be assessed
only for the latter. See Stipulation Between DOE and Ohio, n 2.1,
3.1, App. 87, 89, 90.
2 The parties agreed to stay one claim pending completion of a
technical study. See Stipulation Between DOE and Ohio, App.
87-88.
613
with the CW A, RCRA, or state law supplanting the federal
regulation.
DOE admits that the CWA and RCRA obligate a federal polluter,
like any other, to obtain permits from EP A or the state permitting
agency, see Brief for Petitioner DOE 24 (discussing CWA);
id., at 34-40 (discussing RCRA).3 DOE also concedes that the
CWA and RCRA render federal agencies liable for fines imposed to
induce them to comply with injunctions or other judicial orders
designed to modify behavior prospectively, which we will speak of
hereafter as "coercive fines." See
id., at 19-20, and n. 10;
see also n. 14,
infra. The parties disagree only on whether
the CW A and RCRA, in either their "federal-facilities" 4 or
"citizen-suit" 5 sections, waive federal sovereign immunity from
liability for fines,
3DOE's water-pollution permit was issued by EPA. See Complaint ,
29. DOE had no RCRA permit at the time Ohio commenced this suit,
despite RCRA's requirement that facilities such as DOE's Fernald
plant obtain one. See Complaint n 50, 52, 57; Answer of Federal
Defendants H7.
433 U. S. C. § 1323(a) (CWA); 42 u. S. C. § 6961 (RCRA). The
federalfacilities sections of the CWA and RCRA govern the extent to
which federally operated facilities, such as DOE's Fernald
facility, are subject to the requirements, including fines, of both
their respective statutes and EPAapproved, state-law regulation and
enforcement programs.
533 U. S. C. § 1365(a) (CWA); 42 u. S. C. § 6972(a) (RCRA). The
citizensuit sections of the CWA and RCRA authorize private
enforcement of the provisions of their respective statutes. Unlike
the waivers in the federalfacilities sections, which set forth the
scope of federal sovereign immunity from the requirements,
including fines, of both their respective statutes and
EPA-approved, state-law regulation and enforcement programs, the
citizen-suit sections, to the extent they waive federal immunity at
all, waive such immunity only from federal-law penalties.
States may sue the United States under the citizen-suit
sections. See 33 U. S. C. § 1365(a) (any "citizen" may bring
citizen suit under CWA);
id., § 1365(g) (defining "citizen"
for purposes of CWA citizen-suit section as "person ... having an
interest which is or may be adversely affected");
id., §
1362(5) (defining "person" for purposes of CWA to include a State);
42 U. S. C. § 6972 ("any person" may bring citizen suit under
RCRA);
id., § 6903(15) ("person" for purposes of RCRA
includes a State).
614
which we will refer to as "punitive," imposed to punish past
violations of those statutes or state laws supplanting them.
The United States District Court for the Southern District of
Ohio held that both statutes waived federal sovereign immunity from
punitive fines, by both their federal-facilities and citizen-suit
sections. 689 F. Supp. 760 (1988). A divided panel of the United
States Court of Appeals for the Sixth Circuit affirmed in part,
holding that Congress had waived immunity from punitive fines in
the CWNs federalfacilities section and RCRNs citizen-suit section,
but not in RCRNs federal-facilities section.
904
F.2d 1058 (1990).6 Judge Guy dissented, concluding that neither
the CWNs federal-facilities section nor RCRNs citizen-suit section
sufficed to provide the waiver at issue.
Id., at
1065-1069.
In No. 90-1341, DOE petitioned for review insofar as the Sixth
Circuit found any waiver of immunity from punitive fines, while in
No. 90-1517, Ohio cross-petitioned on the holding that RCRNs
federal-facilities section failed to effect such a waiver.7 We
consolidated the two petitions and granted certiorari, 500 U. S.
951 (1991).8
6 The court held that its ruling on the CW A's
federal-facilities section obviated any need to consider that
statute's citizen-suit section. 904 F. 2d, at 1062.
7 Ohio's petition also asked that if we reversed the lower
court's conclusion on the CWA's federal-facilities section, we
consider whether that statute's citizen-suit section contained a
waiver, an issue the Sixth Circuit declined to reach.
8The Sixth Circuit's holding that the CWA's federal-facilities
section waives federal sovereign immunity from punitive fines
conflicts with the Ninth Circuit's conclusion that that section
does not constitute such a waiver. See
California v.
Department of Navy, 845 F.2d
222 (1988). One Court of Appeals has found such a waiver in the
CWA's citizen-suit section. See
Sierra Club v.
Lujan,
931 F.2d
1421 (CAlO 1991). Two other Courts of Appeals agree with the
Sixth Circuit that RCRA's federalfacilities section does not waive
federal sovereign immunity from punitive fines. See
Mitzelfelt v.
Department of Air Force, 903 F.2d
1293 (CAlO
1990); United States v.
Washington,
872 F.2d
874 (CA9 1989). No other
615
II
We start with a common rule, with which we presume congressional
familiarity, see
McNary v.
Haitian Refugee Center,
Inc., 498 U. S.
479, 496 (1991), that any waiver of the National Government's
sovereign immunity must be unequivocal, see
United States v.
Mitchell, 445
U. S. 535, 538-539 (1980). "Waivers of immunity must be
'construed strictly in favor of the sovereign,'
McMahon v.
United States, 342 U. S. 25, 27 (1951),
and not 'enlarge[d] ... beyond what the language requires.'
Eastern Transportation Co. v.
United States, 272 U. S. 675, 686
(1927)."
Ruckelshaus v.
Sierra Club, 463 U. S. 680, 685-686
(1983). By these lights we examine first the two statutes'
citizen-suit sections, which can be treated together because their
relevant provisions are similar, then the CWNs federal-facilities
section, and, finally, the corresponding section of RCRA.
A
So far as it concerns us, the CW Ns citizen-suit section reads
that
"any citizen may commence a civil action on his own behalf-
"(1) against any person (including ... the United States ... )
who is alleged to be in violation of (A) an effluent standard or
limitation under this chapter or (B) an order issued by the
Administrator or a State with respect to such a standard or
limitation ....
"The district courts shall have jurisdiction ... to enforce such
an effluent standard or limitation, or such an order ... as the
case may be, and to apply any appro-
Court of Appeals appears to have considered whether RCRA's
citizen-suit section constitutes such a waiver.
616
priate civil penalties under [33 U. S. C. § 1319(d)]." 33 U. S.
C. § 1365(a).
The relevant part of the corresponding section of RCRA is
similar:
"[A]ny person may commence a civil action on his own behalf-
"(l)(A) against any person (including ... the United States) ...
who is alleged to be in violation of any permit, standard,
regulation, condition, requirement, prohibition, or order which has
become effective pursuant to this chapter ...
"(B) against any person, including the United States ... who has
contributed or who is contributing to the past or present handling,
storage, treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and substantial
endangerment to health or the environment ....
" ... The district court shall have jurisdiction ... to enforce
the permit, standard, regulation, condition, requirement,
prohibition, or order, referred to in paragraph (l)(A), to restrain
any person who has contributed or who is contributing to the past
or present handling, storage, treatment, transportation, or
disposal of any solid or hazardous waste referred to in paragraph
(l)(B), to order such person to take such other action as may be
necessary, or both, ... and to apply any appropriate civil
penalties under [42 U. S. C. §§ 6928(a) and (g)]." 42 U. S. C. §
6972(a).
A State is a "citizen" under the CW A and a "person" under
RCRA,9 and is thus entitled to sue under these provisions.
Ohio and its
amici argue that by specifying the United
States as an entity subject to suit and incorporating the
civil-
9 See n. 5,
supra.
617
penalties sections of the CWA and RCRA into their respective
citizen-suit sections, "Congress could not avoid noticing that its
literal language subject[ed] federal entities to penalties." Brief
for Respondent Ohio 36; see also,
e. g., Brief for
National Governors' Association et al. as
Amici Curiae 1416.
It is undisputed that each civil-penalties provision authorizes
fines of the punitive sort.
The effect of incorporating each statute's civil-penalties
section into its respective citizen-suit section is not, however,
as clear as Ohio claims. The incorporations must be read as
encompassing all the terms of the penalty provisions, including
their limitations, see,
e. g., Engel v.
Davenport,
271 U. S. 33, 38
(1926) (adoption of earlier statute by reference "makes it as much
a part of the later act as though it had been incorporated at full
length"); see also 2B N. Singer, Sutherland on Statutory
Construction § 51.08 (5th rev. ed. 1992), and significant
limitations for present purposes result from restricting the
applicability of the civil-penalties sections to "person[s]."lO
While both the CWA and RCRA define "person" to cover States,
subdivisions of States, municipalities, and interstate bodies (and
RCRA even extends the term to cover governmental corporations),11
neither statute defines "person" to include the United States.12
Its omission has to be
10 See 33 U. S. C. § 1319(d) (CWA civil-penalties section); 42
U. S. C. §§ 6928(a), (g) (RCRA civil-penalties sections).
11 See 33 U. S. C. § 1362(5) (defining "person" for purposes of
CWA as "an individual, corporation, partnership, association,
State, municipality, commission, or political subdivision of a
State, or any interstate body"); 42 U. S. C. § 6903(15) (defining
"person" for purposes of RCRA as "an individual, trust, firm, joint
stock company, corporation (including a government corporation),
partnership, association, State, municipality, commission,
political subdivision of a State, or any interstate body").
12 A subsection of RCRA dealing with a federal demonstration
program tracking the disposal of medical waste does in fact require
that "each department, agency, and instrumentality of the United
States" "be treated as" a "person." See Medical Waste Tracking Act
of 1988, § 2(a), Pub. L. 100-582, 102 Stat. 2955, 42 U. S. C. §
6992e(b). This broader provision,
618
seen as a pointed one when so many other governmental entities
are specified, see 2A Singer,
supra, § 47.23, a fact that
renders the civil-penalties sections inapplicable to the United
States.
Against this reasoning, Ohio argues that the incorporated
penalty provisions' exclusion of the United States is overridden by
the National Government's express inclusion as a "person" by each
of the citizen-suit sections. There is, of course, a plausibility
to the argument. Whether that plausibility suffices for the clarity
required to waive sovereign immunity is, nonetheless, an issue we
need not decide, for the force of Ohio's argument wanes when we
look beyond the citizen-suit sections to the full texts of the
respective statutes.
What we find elsewhere in each statute are various provisions
specially defining "person" and doing so expressly for purposes of
the entire section in which the term occurs. Thus, for example,
"[f]or the purpose of this [CWA] section," 33 U. S. C. § 1321(a)(7)
defines "person" in such a way as to exclude the various
governmental entities included in the general definition of
"person" in 33 U. S. C. § 1362(5).13 Again, "[f]or the purpose of
this section," § 1322(a)(8) defines "person" so as to exclude "an
individual on board a public vessel" as well as the governmental
entities falling within the general definition. Similarly in RCRA,
"[f]or the purpose of ... subchapter [IX]" the general definition
of "person" is expanded to include "the United States Government,"
among other entities. 42 U. S. C. § 6991(6). Within each statute,
then, there is a contrast between drafting that merely redefines
"person" when it occurs within a particular clause or sentence and
drafting that expressly alters the definition for any and all
purposes of the entire section in
however, applies only "[f]or purposes of this Act,"
ibid., which refers to the Medical Waste Tracking Act of
1988 itself, see 102 Stat. 2950.
13 See n. 11,
supra.
619
which the special definition occurs.14 Such differences in
treatment within a given statutory text are reasonably understood
to reflect differences in meaning intended, see 2A Singer,
supra, § 46.06, and the inference can only be that a special
definition not described as being for purposes of the "section" or
"subchapter" in which it occurs was intended to have the more
limited application to its own clause or sentence alone. Thus, in
the instances before us here, the inclusion of the United States as
a "person" must go to the clauses subjecting the United States to
suit, but no further.
This textual analysis passes the test of giving effect to all
the language of the citizen-suit sections. Those sections'
incorporations of their respective statutes' civil-penalties
sections will have the effect of authorizing punitive fines when a
polluter other than the United States is brought to court by a
citizen, while the sections' explicit authorizations for suits
against the United States will likewise be effective, since those
sections concededly authorize coercive sanctions against the
National Government.15
A clear and unequivocal waiver of anything more cannot be found;
a broader waiver may not be inferred, see
Ruckels-
14 The dissent fails to appreciate this difference, arguing that
§ 1365(a) "states that any person, as used in that subdivision,
includes the United States,"
post, at 633. That statement is
simply incorrect; the citizen-suit section does no more than
include the United States in the class of entities that may be the
subject of a suit brought under this section. In stark contrast to
the examples we have given, see n. 12,
supra, § 1365(a) does
not purport to apply the more expansive definition of "person"
throughout the subsection; by its terms it speaks only to the first
mention of "person."
15 DOE explicitly concedes that such relief is available against
the United States in the context of citizen suits pursuant to the
CWA, see Brief for Petitioner DOE 33, and implicitly so concedes
with regard to RCRA, see
id., at 40-41. DOE also concedes
that both statutes' federalfacilities sections authorize imposition
of injunctive-type relief against the National Government, see
id., at 19-20, and n. 10; see also
id., at 35. DOE
concedes federal liability to such penalties without reference to
the civilpenalties sections of the CWA or RCRA.
620
haus, 463 U. S., at 685-686. Ohio's reading is therefore
to be rejected. See
United States v.
Nordic Village,
Inc., ante, at 37.
B
The relevant portion of the CWNs federal-facilities section
provides that
"[e]ach department, agency, or instrumentality of the ...
Federal Government ... shall be subject to, and comply with, all
Federal, State, interstate, and local requirements, administrative
authority, and process and sanctions respecting the control and
abatement of water pollution in the same manner ... as any
nongovernmental entity .... The preceding sentence shall apply (A)
to any requirement whether substantive or procedural (including any
recordkeeping or reporting requirement, any requirement respecting
permits and any other requirement, whatsoever), (B) to the exercise
of any Federal, State or local administrative authority, and (C) to
any process and sanction, whether enforced in Federal, State, or
local courts or in any other manner .... [T]he United States shall
be liable only for those civil penalties arising under Federal law
or imposed by a State or local court to enforce an order or the
process of such court." 33 U. S. C. § 1323(a).
Ohio rests its argument for waiver as to punitive fines on two
propositions: first, that the statute's use of the word "sanction"
must be understood to encompass such fines, see Brief for
Respondent Ohio 26-29; and, second, with respect to the fines
authorized under a state permit program approved by EPA, that they
"aris[e] under Federal law" despite their genesis in state
statutes, and are thus within the scope of the "civil penalties"
covered by the congressional waiver,
id., at 29-35.
621
Ohio's first proposition is mistaken. As a general matter, the
meaning of "sanction" is spacious enough to cover not only what we
have called punitive fines, but coercive ones as well, and use of
the term carries no necessary implication that a reference to
punitive fines is intended. One of the two dictionaries Ohio itself
cites reflects this breadth. See Black's Law Dictionary 1341 (6th
ed. 1990) (defining "sanction" as a "[p]enalty or other mechanism
of enforcement used to provide incentives for obedience with the
law or with rules and regulations. That part of a law which is
designed to secure enforcement by imposing a penalty for its
violation or offering a reward for its observance"). Ohio's other
such source explicitly adopts the coercive sense of the term. See
Ballentine's Law Dictionary 1137 (3d ed. 1969) (defining sanction
in part as "[a] coercive measure").
Beyond the dictionaries, examples of usage in the coercive sense
abound. See,
e. g., Penfield Co. of Cal. v.
SEC, 330
U. S. 585, 590 (1947) (fines and imprisonment imposed as "coercive
sanctions" when imposed to compel target "to do what the law made
it his duty to do");
Hicks v.
Feiock, 485 U. S. 624, 633-634,
n. 6 (1988) ("sanction" in
Penfield was civil because it was
conditional; contemnor could avoid "sanction" by agreeing to comply
with discovery order); Fed. Rule Civ. Proc. 37(b) (describing as
"sanctions" various steps district court may take in response to
noncompliance with discovery orders, including holding recalcitrant
deponent in contempt);
United States v.
Westinghouse
Elec. Corp., 648 F.2d
642, 649 (CA9 1981) (discussing "sanctions," imposed pursuant
to Fed. Rule Civ. Proc. 37(b), consisting of fine for each day
litigant remained in noncompliance with District Court's discovery
order);
Latrobe Steel Co. v.
United Steelworkers of
America, Local 1537,
545 F.2d
1336, 1344 (CA3 1976) ("Coercive sanctions ... look to the
future and are designed to aid the plaintiff by bringing a defiant
party into compliance with the
622
court order or by assuring that a potentially contumacious party
adheres to an injunction by setting forth in advance the penalties
the court will impose if the party deviates from the path of
obedience");
Vincent v.
Preiser, 175 W. Va. 797, 803,
338 S. E. 2d 398, 403 (1985) (discussing contempt "sanctions"
imposed "to compel compliance with a court order");
Maltaman
v.
State Bar of Cal., 43 Cal. 3d 924, 936, 741 P. 2d 185,
189-190 (1987) (describing as "sanctions" daily fine imposed on
party until it complied with order directing it to transfer certain
property);
Labor Relations Comm'n v.
Fall River
Educators' Assn., 382 Mass. 465, 475-476, 416 N. E. 2d 1340,
1347 (1981) (affirming propriety of imposition of "coercive
contempt sanction"); Cal. Civ. Proc. Code Ann. § 2023(b)(4) (West
Supp. 1992) (authorizing, in response to litigant's failure to obey
discovery order, "terminating sanction[s]," including "contempt
sanction[s]" and orders staying further proceedings by recalcitrant
litigant). Cf. 42 U. S. C. § 6992e(a) (waiving federal
medical-waste disposal facilities' sovereign immunity from various
requirements, including such "sanctions as may be imposed by a
court to enforce [injunctive] relief");
id., § 6961 (using
same language to waive other federal facilities' immunity from RCRA
provisions). Thus, resort to a "sanction" carries no necessary
implication of the punitive as against the coercive.
The term's context, of course, may supply a clarity that the
term lacks in isolation, see,
e. g., Shell Oil Co. v.
Iowa Dept. of Revenue, 488 U. S. 19, 26 (1988).
It tends to do so here, but once again the clarity so found cuts
against Ohio's position. The word "sanction" appears twice in §
1323(a), each time within the phrase "process and sanction[s]." The
first sentence subjects Government agencies to "process and
sanctions," while the second explains that the Government's
corresponding liability extends to "any process and sanction,
whether enforced in Federal, State, or local courts or in any other
manner."
623
Three features of this context are significant. The first is the
separate statutory recognition of three manifestations of
governmental power to which the United States is subjected:
substantive and procedural requirements; administrative authority;
and "process and sanctions," whether "enforced" in courts or
otherwise. Substantive requirements are thus distinguished from
judicial process, even though each might require the same conduct,
as when a statute requires and a court orders a polluter to refrain
from discharging without a permit. The second noteworthy feature is
the conjunction of "sanction[sJ" not with the substantive
"requirements," but with "process," in each of the two instances in
which "sanction" appears. "Process" normally refers to the
procedure and mechanics of adjudication and the enforcement of
decrees or orders that the adjudicatory process finally provides.
The third feature to note is the statute's reference to "process
and sanctions" as "enforced" in courts or otherwise. Whereas we
commonly understand that "requirements" may be enforced either by
backward-looking penalties for past violations or by the "process"
of forward-looking orders enjoining future violations, such
forward-looking orders themselves are characteristically given
teeth by equity's traditional coercive sanctions for contempt:
fines and bodily commitment imposed pending compliance or agreement
to comply. The very fact, then, that the text speaks of sanctions
in the context of enforcing "process" as distinct from substantive
"requirements" is a good reason to infer that Congress was using
"sanction" in its coercive sense, to the exclusion of punitive
fines.
2
The last relevant passage of § 1323(a), which provides that "the
United States shall be liable only for those civil penalties
arising under Federal law or imposed by a State or local court to
enforce an order or the process of such court," is not to the
contrary. While this proviso is unlike the preceding
624
text in that it speaks of "civil penalties," not "sanctions," it
is obviously phrased to clarify or limit the waiver preceding it.
Here our concern is with its clarifying function (leaving its
limiting effect until later), and it must be said that as a
clarifier the proviso speaks with an uncertain voice. To be sure,
the second modifier of "civil penalties" at least makes it plain
that the term (like "sanction," to which it relates) must include a
coercive penalty, since "civil penalties" are exemplified by those
"imposed by a State or local court to enforce an order or the
process of such court." To this extent, then, the proviso serves to
confirm the reading we reached above.
The role of the first modifier is problematical, however.
On the one hand, it tugs toward a more expansive reading of
"civil penalties." If by using the phrase "civil penalties arising
under Federal law" Congress meant nothing more than coercive fines
arising under federal law, it would have been simpler to describe
all such penalties as imposed to enforce an order or process,
whether of a local, state, or federal court. Thus, the first
modifier suggests that the civil penalties arising under federal
law may indeed include the punitive along with the coercive.
Nevertheless, a reading expansive enough to reflect a waiver as to
punitive fines would raise a new and troublesome question about the
source of legal authority to impose such a fine. As far as federal
law is concerned, the only available source of authority to impose
punitive fines is the civil-penalties section, § 1319(d). But, as
we have already seen, that section does not authorize liability
against the United States, since it applies only against "persons,"
from whom the United States is excluded.
Ohio urges us to find a source of authority good against the
United States by reading "arising under Federal law" to include
penalties prescribed by state statutes approved by EPA and
supplanting the CWA. Ohio argues for treating a state statute as
providing penalties "arising under Federal law" by stressing the
complementary relationship between
625
the relevant state and federal statutes and the role of such
state statutes in accomplishing the purpose of the CW A. This
purpose, as Ohio states it, is "to encourage compliance with
comprehensive, federally approved water pollution programs while
shielding federal agencies from unauthorized penalties." Brief for
Respondent Ohio 34-35. Ohio asserts that "federal facility
compliance ... cannot be ... accomplished without the [punitive]
penalty deterrent."
Id., at 35.
The case for such pessimism is not, however, self-evident.
To be sure, an agency of the Government may break the law where
it might have complied voluntarily if it had faced the prospect of
punitive fines for past violations. But to say that its "compliance
cannot be ... accomplished" without such fines is to assume that
without sanctions for past conduct a federal polluter can never be
brought into future compliance, that an agency of the National
Government would defy an injunction backed by coercive fines and
even a threat of personal commitment. The position seems also to
ignore the fact that once such fines start running they can be
every dollar as onerous as their punitive counterparts; it could be
a very expensive mistake to plan on ignoring the law indefinitely
on the assumption that contumacy would be cheap.
Nor does the complementary relationship between state and
federal law support Ohio's claim that state-law fines thereby
"arise under Federal law." Plain language aside, the far more
compelling interpretative case rests on the best known statutory
use of the phrase "arising under federal law," appearing in the
grant of federal-question jurisdiction to the courts of the United
States. See 28 U. S. C. § 1331. There, we have read the phrase
"arising under" federal law to exclude cases in which the plaintiff
relies on state law, even when the State's exercise of power in the
particular circumstances is expressly permitted by federal law.
See,
e. g., Gully v.
First Nat. Bank in
Meridian, 299 U.
S. 109, 116 (1936) (suit over state taxation of nationally
chartered bank does not arise under federal law even though such
taxa-
626
tion would not be possible without federal approval);
International Bridge Co. v.
New York, 254 U. S. 126, 133 (1920)
(congressional approval of construction of bridge by statechartered
company does not make federal law the source of right to build
bridge ).16 Congress' use of the same language in § 1323(a)
indicates a likely adoption of our prior interpretation of that
language. See,
e. g., ICC v.
Locomotive Engineers,
482 U. S. 270,
284-285 (1987) (interpreting statute based on previous
interpretation of same language in another statute);
Northcross v.
Memphis Bd. of Education, 412 U. S. 427, 428 (1973)
(per curiam) (similarity of language in two statutes "strong
indication that [they] should be interpreted
pari passu").
The probability is enough to answer Ohio's argument that "arising
under Federal law" in § 1323(a) is broad enough to cover provisions
of state statutes approved by a federal agency but nevertheless
applicable
ex proprw v~gore.
Since Ohio's argument for treating state-penalty provisions as
arising under federal law thus fails, our reading of the
last-quoted sentence from § 1323(a) leaves us with an unanswered
question and an unresolved tension between closely related
statutory provisions. The question is still what Congress could
have meant in using a seemingly expansive phrase like "civil
penalties arising under Federal law." Perhaps it used it just in
case some later amendment might waive the Government's immunity
from punitive sanctions. Perhaps a drafter mistakenly thought that
liability for such sanctions had somehow been waived already.
Perhaps
16 Of course, the phrase "arising under" federal law appears in
Article III, § 2, of the Constitution, where it has received a
broader construction than in its statutory counterpart. See
Verlinden B. V. v.
Central Bank of Nigeria, 461 U. S. 480, 494-495
(1983). Ohio, however, has offered no reason to believe Congress
intended this broader reading rather than the narrower statutory
reading. Even assuming an equal likelihood for each intent, our
rule requiring a narrow construction of waiver language tips the
balance in favor of the narrow reading.
627
someone was careless. The question has no satisfactory
answer.
We do, however, have a response satisfactory for sovereign
immunity purposes to the tension between a proviso suggesting an
apparently expansive but uncertain waiver and its antecedent text
that evinces a narrower waiver with greater clarity. For under our
rules that tension is resolved by the requirement that any
statement of waiver be unequivocal: as against the clear waiver for
coercive fines the indication of a waiver as to those that are
punitive is less certain. The rule of narrow construction therefore
takes the waiver no further than the coercive variety.
C
We consider, finally, the federal-facilities section of RCRA,
which provides, in relevant part, that the National Government
"shall be subject to, and comply with, all Federal, State,
interstate, and local requirements, both substantive and procedural
(including any requirement for permits or reporting or any
provisions for injunctive relief and such sanctions as may be
imposed by a court to enforce such relief) ... in the same manner,
and to the same extent, as any person is subject to such
requirements .... Neither the United States, nor any agent,
employee, or officer thereof, shall be immune or exempt from any
process or sanction of any State or Federal Court with respect to
the enforcement of any such injunctive relief." 42 U. S. C. §
6961.
Ohio and its
amici stress the statutory subjection of
federal facilities to "all ... requirements," which they would have
us read as an explicit and unambiguous waiver of federal sovereign
immunity from punitive fines. We, however, agree with the Tenth
Circuit that "all ... requirements" "can reasonably be interpreted
as including substantive standards and the means for implementing
those standards, but exclud-
628
ing punitive measures." Mitzelfelt v. Department of Air Force,
903 F.2d
1293, 1295 (1990).
We have already observed that substantive requirements can be
enforced either punitively or coercively, and the Tenth Circuit's
understanding that Congress intended the latter finds strong
support in the textual indications of the kinds of requirements
meant to bind the Government. Significantly, all of them refer
either to mechanisms requiring review for substantive compliance
(permit and reporting requirements) or to mechanisms for enforcing
substantive compliance in the future (injunctive relief and
sanctions to enforce it). In stark contrast, the statute makes no
mention of any mechanism for penalizing past violations, and this
absence of any example of punitive fines is powerful evidence that
Congress had no intent to subject the United States to an
enforcement mechanism that could deplete the federal fisc
regardless of a responsible officer's willingness and capacity to
comply in the future.
The drafters' silence on the subject of punitive sanctions
becomes virtually audible after one reads the provision's final
sentence, waiving immunity "from any process or sanction of any
State or Federal Court with respect to the enforcement of any such
injunctive relief." The fact that the drafters' only specific
reference to an enforcement mechanism described "sanction" as a
coercive means of injunctive enforcement bars any inference that a
waiver of immunity from "requirements" somehow unquestionably
extends to punitive fines that are never so much as mentionedP
17We also reject Ohio's argument purporting to rest on
Hancock v.
Train, 426
U. S. 167 (1976). In
Hancock we determined that, as then
written, § 118 of the Clean Air Act, 42 U. S. C. § 1857f (1970
ed.), did not require federal facilities to obtain state pollution
permits as a condition of continued operation. The relevant portion
of § 1857 required the National Government to "comply with Federal,
State, interstate, and local requirements respecting control ... of
air pollution." Ohio and its
amici stress the point in our
analysis where we found it significant that § 1857 did not require
federal compliance with
"all federal, state, interstate, and
local
629
III
The judgment of the Court of Appeals is reversed, and the cases
are remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE WHITE, with whom JUSTICE BLACKMUN and JUSTICE STEVENS
join, concurring in part and dissenting in part.
These cases concern a uranium-processing plant which, the
Government concedes, has "contaminated the soil, air and surface
waters" of Fernald, Ohio, with radioactive materials, "exceeded
certain of the effluent limitations set forth" in its water
pollution permit, and "failed to construct portions of the water
pollution control facilities in accordance" with the permit.
Answer" 28,33.
The situation at the Fernald plant is not an aberration.
The Department of Energy (DOE) estimates that taxpayers may pay
$40 to $70 billion during the next 20 years to clean
requirements," or with
"all requirements of the
applicable state implementation plan." See 426 U. S., at 182
(emphasis in original). They read our opinion as drawing a
distinction between substantive and procedural requirements, and as
interpreting § 1857 as not waiving federal immunity from procedural
requirements, the group in which we classified the state permit
programs. Ohio and its
amici conclude that the drafters of
RCRA took our observations in
Hancock to heart, and, seeking
to waive federal sovereign immunity for all purposes, including
liability for civil punitive fines, waived immunity for "all ...
requirements, both substantive and procedural." 42 U. S. C. § 6961;
see Brief for Respondent Ohio 41; see also,
e. g.,
Brief for State of California et al. as
Amici Curiae 21.
The answer to this is twofold. Indications of the breadth of the
Government's obligation to comply with substantive or procedural
requirements dealt with in
Hancock do not necessarily
translate into indications that the Government's subjection to
mechanisms for enforcing those obligations extends to punitive as
well as to coercive sanctions. In any event, if Congress had in
fact entertained the intention Ohio suggests, it would hardly have
avoided any example of punitive fines at the same time as it
expressly mentioned the coercive injunctive remedy.
630
Opinion of WHITE, J.
up or contain the contamination at its facilities.1 Federal
facilities fail to comply with the Clean Water Act (CWA), 33 U. S.
C. § 1251
et seq., twice as frequently as private industry.2
And the compliance rate of the Departments of Defense and Energy
with the Resource Conservation and Recovery Act of 1976 (RCRA), 42
U. S. C. § 6901
et seq., is 10 to 15 percent lower than that
of private industry.3
In an effort to compel Government agencies to adhere to the
environmental laws under which private industry must operate,
Congress waived sovereign immunity for civil penalties in the
federal facilities and citizen suit provisions of the CWA, 33 U. S.
C. §§ 1323, 1365(a), and in the citizen suit provision of the RCRA,
42 U. S. C. § 6972(a). Today, the majority thwarts this effort by
adopting "an unduly restrictive interpretation" of both statutes
and writing the waivers out of existence.
Canadian Aviator,
Ltd. v.
United States, 324 U. S. 215, 222 (1945);
Block v.
North Dakota ex rel. Bd. of Univ. and School
Lands, 461 U. S.
273, 287 (1983). In so doing, the majority ignores the
"unequivocally expressed" intention of Congress,
United
States v.
Nordic Village, Inc., ante, at 33;
United
States v.
Mitchell, 445 U. S. 535, 538
(1980), and deprives the States of a powerful weapon in combating
federal agencies that persist in despoiling the environment.
I
It is axiomatic that a statute should be read as a whole. 2A N.
Singer, Sutherland on Statutory Construction § 46.05 (5th ed.
1992). When the federal facilities and citizen suit
1 Cleanup at Federal Facilities: Hearing on H. R. 765 before the
Subcommittee on Transportation and Hazardous Materials of the House
Committee on Energy and Commerce, 101st Cong., 1st Sess., Ser. No.
101-4,
2 U. S. General Accounting Office, Report to Congressional
Requestors:
Water Pollution, Stronger Enforcement Needed to Improve
Compliance of Federal Facilities 3 (1988).
3H. R. Rep. No. 102-111, p. 3 (1991).
631
provisions of the CW A are so read, the conclusion becomes
inescapable that Congress intended to waive sovereign immunity for
civil penalties under the statute.
The federal facilities provision, 33 U. S. C. § 1323(a), see
ante, at 620, both establishes the Government's duty to
comply with the substantive and procedural requirements of the CWA
and explicitly waives immunity for civil penalties. The first part
of the federal facilities provision states that the Federal
Government is subject to "any process and sanction," regardless of
the court in which it is enforced.
The majority devotes three pages of its opinion to a tortured
discussion of whether subjecting the Government to "process and
sanction" encompasses liability for civil penalties. See
ante, at 621-623. Rather than engaging in these analytic
gymnastics, the Court needed to do nothing more than read the rest
of the federal facilities provision. It clearly states:
"[T]he United States shall be liable only for those civil
penalties arising under Federal law or imposed by a State or local
court to enforce an order or the process of such court." 33 U. S.
C. § 1323(a).
Obviously, Congress intended the United States to be liable for
civil penalties. The plain language of the statute says so.
Therefore, the broad term "sanctions" used earlier in the same
subsection must include these penalties. Any other reading would
contravene the "ancient and sound rule of construction that each
word in a statute should, if possible, be given effect."
Crandon v.
United States, 494 U. S. 152, 171 (1990)
(SCALIA, J., concurring in judgment);
Mountain States
Telephone &
Telegraph Co. v.
Pueblo of Santa
Ana, 472 U. S.
237, 249 (1985);
Colautti v.
Franklin, 439 U. S. 379, 392
(1979).
The question, then, is not whether Congress has waived federal
immunity for civil penalties. The waiver here unambiguously reached
those claims for civil penalties "arising
632
Opinion of WHITE, J.
under" federal law. The critical inquiry is under what
circumstances civil penalties arise under federal law.
A
Ohio contends that it is entitled to recover civil penalties on
two different claims: the first brought under the CW A itself,
through its citizen suit provision, 33 U. S. C. § 1365(a), and the
second under the Ohio water pollution laws that arise under the CW
Ns distinctive mechanism allowing States to administer CW A
enforcement within their own boundaries. Ohio Rev. Code Ann. §
6111.09 (Supp. 1987). I agree that the waiver of immunity covers
both types of claims.
1
First, the CWA waives sovereign immunity for civil penalty
claims brought under the Act's citizen suit clause. 33 U. S. C. §
1365(a). See
ante, at 615-616. That section unambiguously
provides authority to sue "any person (including ... the United
States ... )" and to recover "any appropriate civil penalties"
under the civil penalties clause of the CWA enforcement provision,
§ 1319(d). It is impossible to fathom a clearer statement that the
United States may be sued and found liable for civil penalties. The
enforcement provision lists those violations that may be subject to
a civil penalty, sets a ceiling on the size of the penalty, and
lists factors that the court should consider in determining the
amount of a penalty.
Ibid.
Nevertheless, the majority concludes that this straightforward
approach is not sufficient to waive immunity. The Court latches
onto the fact that the enforcement provision does not include its
own definition of "person" and that the CW Ns general purpose
definition of the word "person" does not include the United States.
§ 1362(5).4 Again, there is a
4 Section 1362(5) states: "The term 'person' means an
individual, corporation, partnership, association, State,
municipality, commission, or political subdivision of a State, or
any interstate body."
633
short answer to this claim. The statute says, in plain English,
that its general definitions apply "[e]xcept as otherwise
specifically provided." § 1362. The citizen suit provision is one
of the exceptions to the general rule; it states that any person,
as used in that subdivision, includes the United States. § 1365(a).
Certainly this special definition applies to the civil penalty
enforcement provisions it incorporates.
To conclude otherwise is to resort to "ingenuity to create
ambiguity" that simply does not exist in this statute.
Rothschild v.
United States, 179 U. S. 463, 465
(1900).
2
The CWA also waives immunity for civil penalties arising under
state laws enacted to allow local administration of the CW A permit
program. The majority rejects this proposition by relying on cases
in which the Court has held that state laws approved by the Federal
Government do not "arise under" federal law. See
ante, at
625-626. But these cases are inapposite because the CW A regime
goes far beyond simple federal approval of state action. Instead,
the Act establishes a distinctive variety of cooperative
federalism.
As we recently explained: "The Clean Water Act anticipates a
partnership between the States and the Federal Government .... "
Arkansas v.
Oklahoma, ante, at 10l. To effectuate
this partnership, the CW A authorizes the Environmental Protection
Agency (EPA) to issue pollution discharge permits, 33 U. S. C. §
1342, but provides that a State may "administer" its own permit
system if it complies with detailed statutory and regulatory
requirements. 33 U. S. C. § 1342(b); 40 CFR §§ 123.1-123.64 (1991).
A State that seeks to "administer" a permitting program is required
to adopt a system of civil penalties. 33 U. S. C. § 1342(b)(7).
Federal regulations establish the minimum size of the penalties and
mandate how, and when, they must be imposed. 40 CFR §§
123.27(a)(3)(i), 123.27(b)(1), 123.27(c) (1991).
634
Opinion of WHITE, J.
Even when a State obtains approval to administer its permitting
system, the Federal Government maintains an extraordinary level of
involvement. EPA reviews state water quality standards. 33 U. S. C.
§ 1313(c). It retains authority to object to the issuance of
particular permits, § 1342(d)(2), to monitor the state program for
continuing compliance with federal directives, § 1342(c), and even
to enforce the terms of state permits when the State has not
instituted enforcement proceedings, § 1319(a).
Under this unusual statutory structure, compliance with a
state-administered permit is deemed compliance with the CWA. §
1342(k). Indeed, in
EPA v.
Oklahoma, decided together
with
Arkansas v.
Oklahoma, the EPA asserted that "the
showing necessary to determine under the CW A whether there is
compliance with any particular state [pollution] standard is itself
a matter of federal, not state, law." Brief for Petitioner,
O. T. 1991, No. 90-1266, p. 18, n. 21 (emphasis added). Cf.
Arkansas v.
Oklahoma, ante, at 110 (recognizing the
"federal character" of state pollution standards in interstate
pollution controversy). This conclusion is not surprising, since
the citizen suit provision of the CW A authorizes any citizen to
sue under federal law for a "violation of ... an order issued by
... a State with respect to [any effluent] standard or limitation
.... " 33 U. S. C. § 1365(a).
Given the structure of the CWA, it is apparent that the "arising
under" limitation on the waiver of sovereign immunity was not
intended to protect the Federal Government from exposure to
penalties under state laws that merely provide for the
administration of a CW A permit system. Instead, the limitation
shields the Government from liability under state laws that have
not been subject to initial EPA review and ongoing agency
supervision.5 Only by resorting
5 States may adopt more rigorous water quality standards than
those established under the CWA. EPA regulations provide that a
State is not precluded from:
635
to "an unduly restrictive interpretation" of the CWA and
focusing on the "arising under" language in isolation can the
majority reach a contrary result.
Canadian Aviator, 324 U.
S., at 222.
B
Because of its determination to find that civil penalties are
not available against the Government, the majority paints itself
into a corner. The Court acknowledges that its distortion of the
statute leaves the phrase "civil penalties arising under Federal
law" devoid of meaning. See
ante, at 626627. But rather than
reading the CWA as Congress wrote it and recognizing that it
effects a waiver of immunity, the majority engages in speculation
about why Congress could not have meant what it unambiguously
said:
"Perhaps it used [civil penalties arising under federal law]
just in case some later amendment might waive the Government's
immunity from punitive sanctions. Perhaps a drafter mistakenly
thought that liability for such sanctions had somehow been waived
already. Perhaps someone was careless." Ibid.
It is one thing to insist on an unequivocal waiver of sovereign
immunity. It is quite another "to impute to Congress a desire for
incoherence" as a basis for rejecting an explicit waiver.
Keifer &
Keifer v.
Reconstruction Finance
Corporation, 306
U. S. 381, 394 (1939);
Franchise Tax Bd. of California
v.
Postal Service, 467 U. S. 512, 524
(1984). Cf.
Canadian Aviator, supra, at 225. That is what
the majority does today. "Surely the interest in requiring the
Congress
"(1) Adopting or enforcing requirements which are more stringent
or more extensive than those required under this part;
"(2) Operating a program with a greater scope of coverage than
that required under this part. If an approved State program has
greater scope of coverage than required by Federal law the
additional coverage is not part of the Federally approved program."
40 CFR § 123.1(h)(i) (1991) (emphasis added).
636
Opinion of WHITE, J.
to draft its legislation with greater clarity or precision does
not justify a refusal to make a good-faith effort to ascertain the
actual meaning of the message it tried to convey in a statutory
provision that is already on the books."
Nordic Village,
ante, at 45 (STEVENS, J., dissenting).
The unambiguous language of the federal facilities and citizen
suit provisions of the CWA clearly contemplate a waiver of immunity
as to suit for civil damages, and "once Congress has waived
sovereign immunity over certain subject matter, the Court should be
careful not to 'assume the authority to narrow the waiver that
Congress intended.'''
Ardestani v.
INS, 502 U. S. 129, 137
(1991), quoting
United States v.
Kubrick, 444 U. S. 111, 118
(1979);
Irwin v.
Department of Veterans Affairs,
498 U. S. 89, 94
(1990).
II
Turning to the RCRA, I agree with the majority and with the
Court of Appeals that the RCRA federal facilities provision does
not effect an unambiguous waiver of immunity from civil penalties,
42 U. S. C. § 6961. See
ante, at 627-628. The section makes
no reference to civil penalties and, instead, waives immunity for
"any such injunctive relief." This language comports with the
Government's claim that the waiver is intended to reach only
coercive and not punitive sanctions. The provision certainly does
not unequivocally encompass civil penalties. Therefore, I join Part
II-C of the Court's opinion.
However, I would find a waiver under RCRA's citizen suit
provision, 42 U. S. C. § 6972(a), see
ante, at 616, which is
very similar to the citizen suit provision in the CW A, for the
reasons I have explained above. See Part I-A-l,
supra.
III
The job of this Court is to determine what a statute says, not
whether it could have been drafted more artfully. In these cases,
the federal facilities and citizen suit provisions of
637
the CWA and the citizen suit provision of the RCRA unambiguously
waive the Federal Government's immunity from civil penalties. That
is all the law requires.
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