Byron White

“ Obviously, moreover, what Congress may exact with respect to new entities created by compacts that the States have no constitutional power to make without its explicit consent, see U.S.C.onst., Art. I, § 10, cl. 3, may be much greater than what it may exact in other contexts.↑ A "waiver" theory would not support retroactive imposition of liability-but that is rare in any event. Moreover, it could be held that waiver cannot occur when the State is unaware of the facts that trigger its liability, or of the law that imposes it. ”

“ Rather than assuming that Congress wrote a wholly redundant subsection of § 9607, however, it seems more likely to conclude that Congress did not think that including the United States Government or the States within § 9601 (21) 's general definition of "persons" subject to CERCLA's regime was enough to abrogate the sovereign immunity of either for damages awards. ”

“ Nor is it true that CERCLA's "comprehensiveness" will be substantially lessened by deeming the States' immunity to have survived intact. The States remain subject to liability at the hands of the Federal government; this provides a viable means of achieving CERCLA's ends. See Reply Brief for Petitioner 10. [3]
Above all, the entire purpose of our "clear statement" rule would be obliterated if this Court were to imply Eleventh Amendment abrogation from our sense of what would best serve the general policy ends Congress was trying to achieve in a statute. ”

“ There, as is true here, the relevant statutory term that described who was covered by the Act (in Employees, it was the term "employers" in the Fair Labor Standards Act (FLSA) ) , expressly included the State defendant (in Employees, it was the State as an employer of "employees of a State . . . hospital") ; invoking these provisions, a private litigant sought to hold the State liable under the statute's damages remedy. Id., at 282-283, 93 S.Ct., at 1616-1617. Nonetheless, in Employees, we held that Congress had not thereby abrogated the States' Eleventh Amendment immunity ”

“ A State would be immune from private suit under § 9607 for costs associated with the cleanup of a state-created, owned, and operated hazardous-waste dump, but it would be liable for discharges at sites it acquired when an owner abandoned his property. ”

“ Cf. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) . With respect to the Federal Government, Congress went on to enact a separate provision executing the requisite waiver of immunity, § 9607 (g) . However, with respect to the States, Congress made no such additional provision: the conclusion to be drawn is obvious.
Finally, and most importantly, the Court's reading of CERCLA employs the precise analytical approach we rejected in Employees v. Missouri Dept. ”