624
Opinion of the Court
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
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