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SUPREME COURT OF THE UNITED STATES
Nos. 90-1341 and 90-1517
UNITED STATES DEPARTMENT OF ENERGY, PETITIONERS v. OHIO, et al.
OHIO, et al., PETITIONERS v. UNITED STATES DEPARTMENT OF ENERGY
on writs of certiorari to the united states court of appeals for the sixth circuit
[
Justice
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 up or contain the contamination at its facilities. [n.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. [n.2] And the compliance rate of the Departments of Defense and Energy with the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., is 10 to 15 percent lower than that of private industry. [n.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. Board of University 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., 503 U. S. ___, ___ (1992); United States v. Mitchell, 445 U.S. 535, 538 (1980), and deprives the States of a powerful weapon in combatting 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 provisions of the Clean Water Act 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 10, 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 11-13. 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); Mountain States Telephone & Telegraph Co. v. 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 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 CWA 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 CWA's distinctive mechanism allowing States to administer CWA 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 6. 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 CWA's general purpose definition of the word "person" does not include the United States. § 1362(5). [n.4] Again, there is a short answer to this claim. The statute says, in plain English, that its general definitions apply "[e]xcept asotherwise 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 CWA 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 16. But these cases are inapposite because the CWA 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, 503 U. S. ___, ___, (1992) (slip op., at 8). To effectuate this partnership, the CWA 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).
Even when a State obtains approval to administer its permitting system, the Federal Government maintains anextraordinary 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 Clean Water Act. § 1342(k). Indeed, in EPA v. Oklahoma, decided together with Arkansas v. Oklahoma, the EPA asserted that "the showing necessary to determine under the CWA 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, supra, at ___ (slip op., at 18) (recognizing the "federal character" of state pollution standards in interstate pollution controversy). This conclusion is not surprising, since the citizen suit provision of the CWA 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 Act, 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 CWA 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. [n.5] Only by resorting 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 17. 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. United States 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 to draft its legislation withgreater 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, 503 U. S., at ___ (Stevens, J., dissenting) (slip op, at 7).
The unambiguous language of the federal facilities and citizen suit provisions of the Clean Water Act 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. ___, ___ (1991) (slip op., at 7-8), quoting United States v. Kubrick, 444 U.S. 111, 118 (1979); Irwin v. Department of Veterans Affairs, 498 U. S. ___, ___ (1990).
II
Turning to the Resource Conservation and Recovery Act (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 17-18. 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 6-7, which is very similar to the citizen suit provision in the CWA, for the reasons I have explained above. See supra, Part I-A-1.
III
The job of this Court is to determine what a statute says, not whether it could have been drafted more artfully. In this case, the federal facilities and citizen suit provisions of 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.
Notes
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.
2 U.S. General Accounting Office, Report to Congressional Requestors: Water Pollution, Stronger Enforcement Needed to Improve Compliance of Federal Facilities 3 (1988).
3 H. R. Rep. No. 102-111, p. 3 (1991).
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."
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:
"(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).