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UNITED STATES DEPARTMENT ENERGY

decided*fn*: April 21, 1992.

UNITED STATES DEPARTMENT OF ENERGY, PETITIONER


On petition for writs of certiorari to the United States Court of Appeals for the Sixth Circuit.

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 part and dissenting in part, in which Blackmun and Stevens, JJ., joined.

Author: Souter

JUSTICE SOUTER delivered the opinion of the Court.

The question in this case 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 CWA 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 (EPA), but allows EPA 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 EPA approval of state hazardous-waste disposal permit plans); see also 40 CFR §§ 271.1-271.138 (1991) (detailed requirements for state plans).

This case 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 CWA and RCRA and of state laws enacted to supplant those federal statutes. See, e.g., Complaint para. 64 (seeking penalties for violations of state law and of regulations issued pursuant to RCRA); id., para. 115 (seeking penalties for violations of state law and of CWA).*fn1 Before the district court ruled on DOE's motion for dismissal, the parties proposed a consent decree to settle all but one substantive claim,*fn2 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 with the CWA, 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 EPA or the state permitting agency, see Brief for Petitioner 24 (discussing CWA); id., at 34-40 (discussing RCRA).*fn3 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 CWA and RCRA, in either their "federal-facilities"*fn4 or "citizen-suit"*fn5 sections, waive federal sovereign immunity from liability for fines, 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 CWA's federal-facilities section and RCRA's citizen-suit section, but not in RCRA's federal-facilities section. 904 F.2d 1058 (1990).*fn6 Judge Guy dissented, concluding that neither the CWA's federal-facilities section nor RCRA's 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 RCRA's federal-facilities section failed to effect such a waiver.*fn7 We consolidated the two petitions and granted certiorari, 500 U.S. (1991).*fn8

II

We start with a common rule, with which we presume congressional familiarity, see McNary v. Haitian Refugee Center, 498 U.S. , (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 CWA's federal-facilities section, and, finally, the corresponding section of RCRA.

A

So far as it concerns us, the CWA's 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 an effluent standard or limitation, or such an order . . . as the case may be, and to apply any appropriate 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:

"any person may commence a civil action on his own behalf --

"(1)(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 (1)(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 (1)(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 CWA and a "person" under RCRA,*fn9 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-penalties sections of the CWA and RCRA into their respective citizen-suit sections, "Congress could not avoid noticing that its literal language subjected federal entities to penalties." Brief for Respondent 36; see also, e.g., Brief for National Governors' Association, et al. as Amici Curiae 14-16. 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 Statutory Construction § 51.08 (5th ed. 1992), and significant limitations for present purposes result from restricting the applicability of the civil-penalties sections to "persons."*fn10 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),*fn11 neither statute defines "person" to include the United States.*fn12 Its omission has to be 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 ...


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