The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_1341/90_1341.zx

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SUPREME COURT OF THE UNITED STATES
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Nos. 90-1341 and 90-1517
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UNITED STATES DEPARTMENT OF ENERGY,
PETITIONERS
90-1341                    v.
                       OHIO et al.

                OHIO, et al., PETITIONERS
90-1517                    v.
UNITED STATES DEPARTMENT OF ENERGY
on writs of certiorari to the united states court of
appeals for the sixth circuit
[April 21, 1992]

  Justice White, with whom Justice Blackmun and
Justice Stevens join, concurring in part and dissenting in
part.
  This case concerns a uranium-processing plant which, the
Government concedes, has -contaminated the soil, air and
surface waters- of Fernald, Ohio, with radioactive materi-
als, -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 accor-
dance- 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.

Federal facilities fail to comply with the Clean Water Act
(CWA), 33 U. S. C. 1251 et seq., twice as frequently as
private industry.  And the compliance rate of the Depart-
ments of Defense and Energy with the Resource Conserva-
tion and Recovery Act (RCRA), 42 U. S. C. 6901 et seq., is
10 to 15 percent lower than that of private industry.
  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 -unequivo-
cally 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 conclu-
sion 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 unam-
biguously 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 straightfor-
ward 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).  Again, there is
a 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 defini-
tion 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 antici-
pates 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 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
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 pollu-
tion 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 Govern-
ment 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.
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.  Canadi-
an 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 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, 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 immu-
nity 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.
  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.