International Paper Co. v. Ouellette

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join, concurring in part and dissenting in part.

I concur wholeheartedly in the Court’s judgment that the Clean Water Act (Act), 33 U. S. C. §1251 et seq., does not pre-empt a private nuisance suit filed in a Vermont court when the source of the alleged injury is located in New York. I disagree only with the Court’s view that a Vermont court must apply New York nuisance law.

1 — (

The question presented is whether the District Court properly denied International Paper Company’s motion to dis *501 miss. The Court concludes that a federal district court, sitting in the State where the injury occurred, may hear a common-law nuisance suit to redress interstate water pollution and that the district court must apply the law of the State in which the point source is located. The Court improperly reaches out to decide the latter issue. As far as the parties and the Court know, “Vermont law and New York law are identical on the question of private nuisance.” Tr. of Oral Arg. 24. Moreover, Vermont is the only State to share Lake Champlain with New York. Thus, the nuisance laws of New York and Vermont are the sole candidates for application in the present case, and they do not conflict. The respondents do not base their claims on any particular state law — “[t]he Complaint in this matter does not specify the jurisdiction of the common law it invokes or make a choice of law.” Plaintiffs’ Supplemental Memorandum of Law in Opposition to Defendant’s Motion to Dismiss in No. 78-163, p. 4. Given these facts, I find it necessary only to affirm the denial of International Paper Company’s motion to dismiss.

I — I

Even were I to reach the issue of the state law applicable in this case, I would not interpret the Act to require a court sitting in the State where the injury has occurred (affected State) to apply the nuisance law of the State from which the pollution emanates (source State). Nothing in the Act preempts the usual two-step analysis undertaken by federal district courts to determine which state tort law should be applied in interstate tort suits. First, the district court must apply the conflict-of-law rules of the State in which the court sits. See Day & Zimmerman, Inc. v. Challoner, 423 U. S. 3, 4 (1975); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, 496 (1941) (holding that Erie doctrine applies to conflict-of-law rules). Thus, the Vermont District Court should apply the conflict-of-law rules of Vermont, the affected State. Second, these conflict-of-law principles must *502 be interpreted by the district court to determine whether the tort law of the source State or the affected State should be applied. Today the Court finds that the application of Vermont’s nuisance law is pre-empted even if Vermont’s conflict-of-law rules determine that Vermont’s tort law should be applied.

The Act provides no support for deviation from well-settled conflict-of-law principles. Under conflict-of-law rules, the affected State’s nuisance law may be applied when the purpose of the tort law is to ensure compensation of tort victims. 1 “[I]t is beyond dispute” that affected States have “a significant interest in redressing injuries that actually occur within the State.” Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 776 (1984); see also Allstate Ins. Co. v. Hague, 449 U. S. 302, 307 (1981); Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 442 (1960). This traditional interest of the affected State, involving the health and safety of its citizens, is protected by providing for application of the affected State’s own tort laws in suits against the source State’s polluters. See Askew v. American Waterways Operators, Inc., 411 U. S. 325, 343 (1973); Watson v. Employers Liability As *503 surance Corp., 348 U. S. 66, 72-73 (1954); Young v. Masa, 289 U. S. 253, 258-259 (1933). The State’s interest in applying its own tort laws cannot be superseded by a federal act unless that was the clear and manifest purpose of Congress. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248, 255 (1984); Milwaukee v. Illinois, 451 U. S. 304, 316 (1981) (Milwaukee II).

Here Congress preserved the rights of source States and affected States alike to enforce state common-law claims. Section 510 provides: “Except as expressly provided . . . , nothing in this chapter shall... be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” 33 U. S. C. § 1370 (emphasis added). In preserving the right to seek traditional common-law relief, the Act draws no distinction between interstate and intrastate disputes; § 505(e) states: “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief.” § 1365(e). 2 This provision contains no “express” restriction on the normal operation of state law, reflecting the Act’s policy “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . .” § 1251(b).

By contrast, where Congress wanted to affect state common-law rights, it expressly stated this intent in the Act. Congress chose to pre-empt state law “only where the situation warranted it based upon the urgent need for uniformity *504 such as in section 312(f) relating to marine sanitation devices.” H. R. Rep. No. 92-911, p. 136 (1972), 1 Legislative History of the Water Pollution Control Act of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 823 (1973) (hereinafter Leg. Hist.).

I find that the Act’s plain language clearly indicates that Congress wanted to leave intact the traditional right of the affected State to apply its own tort law when its residents are injured by an out-of-state polluter.

I — I

The Court argues that, although the Act does not explicitly state that the affected States’ laws are pre-empted here, applying the law of an affected State against an out-of-state source stands as an obstacle to the full implementation of the Act. The Court contends application of an affected State’s common law is contrary to subsidiary objectives of the Act: (1) establishing the right of source States to set effluent standards for in-state polluters, ante, at 489-490; and (2) establishing clear and identifiable discharge standards, ante, at 496. The Court concludes that the affected State’s common law is pre-empted by implication because of these conflicts. Although the Court plausibly argues that it is offering a better administrative approach, I do not believe that Congress meant to alter state law in this manner.

As a threshold matter, the Court’s opinion assumes that in enacting the Act, Congress valued administrative efficiency more highly than effective elimination of water pollution. Yet there is no evidence that Congress ever made such a choice. Instead, the Act reflects Congress’ judgment that a rational permit system, operating in tandem with existing state common-law controls, would best achieve the Act’s primary goal of controlling water pollution. I base this conclusion on four important considerations.

*505 First, since Congress preserved state common-law rights “[ejxcept as expressly provided,” supra, at 503, the Court’s reliance upon pre-emption by implication cannot justify its conclusion. Cf. Silkwood v. Kerr-McGee Corp., supra, at 255 (“Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted”).

Second, the legislative history of the Act indicates that Congress saw no peril to the Act in permitting the application of traditional principles of state law. The Senate Committee Report noted that Congress meant “specifically [to] preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages.” S. Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499 (emphasis added). The majority’s concern that tort liability might undercut permit requirements was thus not shared by Congress.

In addition, the Environmental Protection Agency’s (EPA) interpretation is consistent with Congress’ view that state tort remedies were supplemental and wholly preserved under the Act. The regulations promulgated by the EPA recognize that meeting the source State’s minimum effluent limits does not convey “any exclusive privilege.” 40 CFR § 122.5 (b) (1986). The EPA did not interpret the Act to modify state or local law: “The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or regulations.” § 122.5(c).

Third, we have refused to pre-empt a State’s law, even when it is contrary to subsidiary objectives concerning administration, if the State’s law furthers the federal statute’s primary purpose and is consistent with the Act’s saving of States’ authority in an area traditionally regulated by States. See Pacific Gas & Electric Co. v. Energy Resources Con *506 servation and Development Comm’n, 461 U. S. 190, 221-223 (1983). Subjecting polluters to state common-law liability simultaneously promotes the main federal goal of eliminating water pollution entirely, 33 U. S. C. § 1251 (a)(1), and obeys the congressional command to leave state common law intact. Here Congress intended to stand by its federal regulatory scheme and the State’s traditional liability laws “and to tolerate whatever tension there was between them.” Silkwood v. Kerr-McGee Corp., 464 U. S., at 256 . “Given this statutory scheme, it is for Congress to rethink the division of regulatory authority in light of its possible exercise by States to undercut a federal objective. The courts should not assume the role which our system assigns to Congress.” Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Comm’n, supra, at 223.

Finally, the Court overstates any conflict between the affected State’s nuisance law and the subsidiary objectives of the Act. The Court contends that applying the affected State’s law would violate the source State’s right to set effluent standards for in-state polluters. But if traditional conflict-of-law rules require the application of the affected State’s nuisance law, there is no “conflict” with the source State’s ability to set the minimum standards required under the Act. Congress considered state common-law rights to be supplementary to, and not in conflict with, the Act unless they embodied a “less stringent” standard for polluters than the federal effluent standards. See H. R. Rep. No. 92-911, pp. 169-170 (1972), 1 Leg. Hist. 856-857. The application of an affected State’s common-law remedies to an out-of-state polluter does not conflict with the Act because it is possible for the polluter to redress the injuries suffered by the victims of the pollution and to obey the source State’s effluent standards. By complying with the most stringent requirement— either under the Act or the affected State’s law — the polluter necessarily complies with the more lenient standards. See Silkwood v. Kerr-McGee Corp., supra, at 257.

*507 The Court also argues that application of an affected State’s law to an out-of-state source would undermine the important goals of efficiency and predictability in the permit system. But Congress set out to establish “clear and identifiable” discharge standards, S. Kep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499; it did not intend to reform the “impenetrable jungle” of state nuisance law, see ante, at 496, n. 17. As both legislative history and EPA regulations indicate, compliance with effluent standards is not a defense to state tort suits, see ante, at 496, and the affected State’s nuisance law is no more “vague” and “indeterminate” than the source State’s nuisance law. In fact, in the instant case, Vermont and New York nuisance law are apparently identical. See supra, at 501. While Congress intended to impose identifiable federal discharge standards upon polluters, we must have much more explicit evidence before assuming that in enacting such a provision Congress meant to revolutionize state conflict-of-law or tort law principles.

hH <1

Even if the Court’s conclusion that New York law should apply is correct, it does not logically follow that New York nuisance law must be applied in this case. In its haste to reach this result, the Court assumes that the imposition of the New York nuisance standard would be required by New York law in a suit where the alleged injury occurred in Vermont: “Because the Act specifically allows source States to impose stricter standards, the imposition of source-state law does not disrupt the regulatory partnership established by the permit system. ... New York nuisance law may impose separate standards . . . .” Ante, at 499 (emphasis added).

Whether New York law requires the application of New York or Vermont nuisance law depends on an interpretation *508 of New York law pertaining to conflict of laws. 3 “A state has the same freedom to adopt its own rules of Conflict of Laws as it has to adopt any other rules of law. Conflict of Laws rules, when adopted, become as definitely a part of the law as any other branch of the state’s law.” Restatement (Second) of Conflict of Laws §5, Comment a, p. 9 (1971). The Court reasons that a source State must have the primary role in regulating its own pollution discharges. Under this logic, nothing prevents a source State’s legislature or courts from choosing to impose, under conflict-of-law principles, the affected State’s nuisance law in a case such as this. A source State is free to adopt an affected State’s standards as its own standards, ante, at 490 (noting that source State can accept advice of affected State).

The District Court correctly denied the petitioner’s motion for summary judgment and judgment on the pleadings. For the reasons indicated above, I would affirm without reaching the question of the state law applicable in this case.

States have adopted two different conflict-of-law approaches to determine which state tort law should be applied. The traditional rule of lex loci delicti requires the application of the tort law of the jurisdiction where the injury occurred. See 19 N. Y. Jur. 2d, Conflict of Laws § 39, p. 623 (1982); E. Scoles & P. Hay, Conflict of Law § 17.7, pp. 560-561 (1982). The rationale for the traditional rule is that the affected State possesses a strong interest in redressing injuries to its citizens. The modern rule, followed by the majority of States, employs an interest-analysis approach. See Allstate Ins. Co. v. Hague, 449 U. S. 302, 309 (1981). Under this analysis, if the primary purpose of the tort rule is to control the tortfeasor’s conduct — such as the setting of pollution discharge standards — then the source State’s tort law may be applied. Alternatively, if the main purpose of the tort rule is compensating victims of the tort, a court may apply the affected State’s tort law. Other relevant considerations include the locations of the parties and where the relationship, if any, between the parties is centered. See Restatement (Second) of Conflict of Laws § 145, and Comment c, pp. 414-416 (1971).

The Court dismisses the importance of § 505(e) because that section “merely says that ‘[njothing in this section,’ i. e., the citizen-suit provisions, shall affect an injured party’s right to seek relief under state law; it does not purport to preclude pre-emption of state law by other provisions of the Act.” Ante, at 493. But Congress used this language because this is the only section of the Act that expressly implicates private suits. Congress was reemphasizing that a State’s authority over private suits, involving state common law, was not affected by the Act.

The respondents contend that under both New York and Vermont conflict-of-law principles, Vermont common law would apply to this action. Brief for Respondents 12. Petitioner does not contest this view. If this issue need be determined, it should, in my view, be remanded to the Court of Appeals. See, e. g., Allstate Ins. Co. v. Hague, 449 U. S., at 307 ; Day & Zimmerman, Inc. v. Challoner, 423 U. S. 3, 5 (1975) (Blackmun, J., concurring); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, 492 (1941). It is sufficient for the sake of argument to note that several cases suggest that New York conflict-of-law principles may require that Vermont law be applied in this instance. See, e. g., Bing v. Halstead, 495 F. Supp. 517, 520 (SDNY 1980) (“Where tortious conduct occurs in one jurisdiction and injury in another, as is the case here, the law of the place of injury applies”); Cousins v. Instrument Flyers, Inc., 44 N. Y. 2d 698, 699, 376 N. E. 2d 914 , 915 (1978) (“It is true that lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances”).