Reply Brief — Milwaukee v. Illinois

supreme Court, U,

Pa FILED

| YAN 28 1989

| ticussiae

; ah., CLERK

IN THE air

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-408

CITY OF MiLWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE,

AND THE METROPOLITAN SEWERAGE COMMISSION

OF THE COUNTY OF MILWAUKEE,

Petitioners,

Vv.

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

Supplemental Brief of the City of Milwaukee,

The Sewerage Commission of the City of Milwaukee,

and The Metropolitan Sewerage Commission of the

County of Milwaukee in Response to the

Memorandum for the United States as Amicus Curiae

RICHARD W. CUTLER

ELWIN J. ZARWELL

SAMUEL J. RECHT

ANDREW M. BARNES

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 277-5000

Attorneys for Petitioners

The Sewerage Commission

Of Counsel:

QUARLES & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

and

MICHAEL J. McCABE

735 North Water Street

Milwaukee, Wisconsin 53202

January 25, 1980

of the City of Milwaukee

and The Metropolitan

Sewerage Commission of

the County of Milwaukee

JAMES B. BRENNAN

Room 800, City Hail

Milwaukee, Wisconsin 53202

(414) 278-2601

Attorney for Petitioner

City of Milwaukee

INDEX

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CITATIONS

Cases

California Tahoe Regional Planning Agcy. v. Jennings,

594 F.2d 181 (9th Cir. 1979), cert. denied,

cavioeney WS ¢othe ctmcsanss Oe FOR, COCR. By FOFRD oc vc sccscccn

Illinois v. Milwaukee, 406 U.S. 91 (1972) .............

United States v. Stoeco Homes, Inc., 498 F.2d

597 (3d Cir. 1974), cert. denied, 420 U.S.

bs CRIED 000 0e es cine ieeeche thao acaeivadeue

Statutes

Clean Water Act, 33 U.S.C. §1251 etseq .............

Rivers and Harbors Appropriation Act of 1899,

Bo UA. BG ENS one oh 0s gehen eben

Page

10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

No. 79-408

CITY OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE,

AND THE METROPOLITAN SEWERAGE COMMISSION

OF THE COUNTY OF MILWAUKEE,

Petitioners,

Vv.

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

Supplemental Brief of the City of Milwaukee,

The Sewerage Commission of the City of Milwaukee,

and The Metropolitan Sewerage Commission of the

County of Milwaukee in Response to the

Memorandum for the United States as Amicus Curiae

INTRODUCTION

This supplemental brief is filed pursuant to Rules 24(5) and

42 of the Rules of the Supreme Court of the United States, and

presents the response of petitioners City of Milwaukee, The

Sewerage Commission of the City of Milwaukee, and The

Metropolitan Sewerage Commission of the County of

Milwaukee (collectively, ‘‘Milwaukee’’) to the new, intervening

material presented by the Memorandum for the United States as

Amicus Curiae with respect to Case No. 79-408. !

1 Petitioners in Case No. 79-408 are respondents in Case No.

79-571. For the reasons described in Milwaukee’s Brief in Opposition

to the Petition for Writ of Certiorari filed by the State of Illinois in

Case No. 79-571, we agree with the United States that the Court

should deny Illinois’ petition.

-.

QUESTIONS PRESENTED

Milwaukee respectfully refers the Court to the Questions

Presented set out in the Petition for a Writ of Certiorari filed in

Case No. 79-408.

STATEMENT OF THE CASE

Milwaukee respectfully refers the Court to the Statement of

the Case set out in the Petition for a Writ of Certiorari filed in

Case No. 79-408.

ARGUMENT

As stated above, this is in response to the ‘‘Memorandum

for the United States as Amicus Curiae.’’ (emphasis added)

The almost cryptic memorandum filed for the United

States tells this Court that the expenditure of the Court’s time is

not warranted in this case: a case that involves millions of the

people of the United States; a case that involves the expenditure

of billions of United States and local tax dollars; a case that

directly involves, if not the largest local public works project in

this country’s history, then one of the largest, and establishes

the law for like projects to follow; a case decided after the

enactment of applicable comprehensive statutory and

regulatory provisions which enactment followed the eight-year

old decision of this Court establishing the basis for this case,

which decision of this Court specifically recognized both that

this Court’s holding was made in the absence of legislation and

that the federal common law was subject to displacement by

subsequent federal legislation and regulation; a case where

liability was imposed by a single federal district judge who ad-

mitted his inability to grasp the difficult subject matter but

nevertheless imposed liability in the absence of any empirical

evidence of harm and imposed a remedy without permitting

proof of the costs or cost effectiveness thereof; and a case where

the Court of Appeals affirmed on the basis that the defendants

had failed to prove the very facts that the District Court had not

allowed the defendants an opportunity to prove!

.

Have we really reached the point in this country when this

Court should heed the opinion of the executive, as expressed by

its attorney, not even its agency charged with environmental

concerns or its office of management and budget, that the plea

of millions of people being required to expend billions of dollars

does not warrant the time of this Court? Note the position of

the executive, through its attorney, is a restatement of the iden-

tical position before the Court of Appeals taken by Mr. Moor-

man, the former executive director of the Sierra Club Legal

Defense Fund, lead counsel for the United States in the Court of

Appeals, and the second ranking attorney for the United States

here. The people deserve better treatment from _ the

sovereign — more than the back of its hand administered in the

form of a memorandum obviously influenced by an apparent

advocate for a position. Milwaukee submits that this case does

not merely warrant this Court’s attention; the facts of this case

make a most eloquent piea for that attention.

Why does the amicus ‘‘for ine United States’’ seek to avoid

review in the face of the acknowledgement that the issue

presented in this case ‘‘is not inappropriate for consideration

here’’? (U.S. Memo. p. 3) Why does the amicus seek to avoid

review even as to issues on which the amicus expresses no opin-

ion? (U.S. Memo. p. 7) Of course, politically appointed public

officials inherently bring positions on political issues to their

job, but they should not be permitted to either use a public of-

fice or give the appearance of so doing to discourage review by

this Court, sought by and important to the public at large,

because they, as individuals, agree with the decision below.

The millions of people of the United States and their

billions of dollars are, we believe, more faithfully represented in

seeking review by the amicus briefs previously filed for all the

major cities and sewer districts in the United States. Continued

respect for the law by the public at large is best served through

_ review by the highest authority of a far reaching mandate which

imposes perhaps the most economically severe remedy ever im-

posed by a court. Truer still is this proposition when the man-

date operates in a new area of law and is based on conflicting

opinions of ‘‘experts’’ only, with absolutely no empirical

evidence of harm. This is not the stuff to cause a common law

court in the exercise of nuisance jurisdiction to require so many

citizens to reach so deeply into their tax coffers.

In reaching its virtually ipse dixit conclusion that the

Milwaukee petition for certiorari may appropriately be denied2,

the Memorandum for the United States restates, in strawman

form with the hobgoblin label of preemption, one of the

arguments of the Milwaukee petitioners, then knocks that

strawman down and ignores the balance and real substance of

the Milwaukee petition.

In the only point it discusses, the Memorandum of the

United States asserts that the whole issue as urged by the

Milwaukee petitioners is one of total preemption of federal

common law by federal legislation. Even a cursory reading of

the Milwaukee petition belies that contention. True, the

Milwaukee petitioners do set out, as the fact is, that the Con-

gress of the United States has enacted and the Environmental

Protection Agency of the United States has adopted pursuant to

the Congressional enactment, an overall approach to point

source discharges to navigable and interstate waters, which

statutes and regulations are a comprehensive scheme for control

of discharges that must at the very least guide the courts in ap-

plying the federal common law of nuisance to discharges to

navigable and interstate waters. To that extent, the position of

petitioners resembles a preemption argument. However, central

to the Congressional enactment and the regulations adopted

thereunder and the common law of nuisance, is the concept that

costs and cost effective solutions are of major and even para-

mount importance to relief regardless of preemption. The

statute recognizes costs and cost effective solutions because of

the tremendous sums that are involved in these areas and the at-

2 As noted above, (footnote 1), we agree that the Illinois petition

would appropriately be denied. We presume the United States joins in

the reasons expressed in our response to the Illinois petition as the

United States does not state the basis for its recommendation in this

respect.

-5-

tendant resource allocation which must be considered. The

common law has always recognized the same issue for par-

ticularized application under its doctrines of balancing equities.

The District Court and the Court of Appeals specifically ig-

nored costs and cost effective analyses regardless of statute,

regulation or common law doctrines.

The Court of Appeals, in affirming the District Court,

compounded the error. It first commented that it did not have

costs and cost effective information before it on which to con-

sider the position of the District Court, thus totally ignoring the

fact that the District Court would not permit that type of

evidence to be placed before the court. But of equal importance

is the internal inconsistency of the Court of Appeals’ positions.

On the matter of effluent limitations the Court of Appeals

found a lack of evidence and upon that finding held that the

lack of proof must result in a denial of relief to the plaintiff.

This is, of course, the proper application of the law. The plain-

tiff failed in its proof, so relief was denied. On the matter of

costs and cost effectiveness of relief granted as to overflows,

however, the Court of Appeals inverted the burden. Though a

nuisance plaintiff is required to prove its right to relief and a

comparison of harm to itself against relief imposed which

balances in plaintiff’s favor as an element of that proof, the

Court of Appeals held rather that the absence of such evidence

justified the relief accorded to plaintiff.

The entire line of inquiry and policy relating to costs and

cost effective remedies, having political ramifications to the

United States as a whole and being the subject of Congressional

debate and enactment, as well as the proof inversion of the

Court of Appeals, has been brushed aside in the Memorandum

for the United States by characterizing petitioners’ position as

being an argument for total preemption. In fact, the District

Court refused to follow the political determination by Congress

as to the allocation of the nation’s resources. The Court of Ap-

peals affirmed that determination because evidence in respect

thereof was not present. The Court of Appeals thereby ignored

the Congress, common law doctrines and the fact that the

A

District Court itself caused the lack of that very evidence by

refusing to acceptit.

In short, as is demonstrated above and in the remaining

portions of this response, the Memorandum for the United

States fails to recognize the gravity and importance of this case,

mischaracterizes the arguments of the petition and phrases them

in terms of a pure preemption argument, concludes that the

issue of preemption as posed by the Memorandum for the

United States was correctly decided below, states that there are

no further issues in the case even though issues of stare decisis,

jurisdiction and venue are all presented and even though

recognizing that at least one of the questions presented is ‘‘not

inappropriate for consideration here’’ and finally suggests that

the petitions for certiorari may appropriately be denied.

The executive arm of the federal government would thus

like to displace this Court by saying that the one issue its

Memorandum raises and discusses was correctly decided below

and therefore no review is warranted. Such position is tanta-

mount to the executive determining that the lower federal

courts, acting under the federal common law of nuisance, are

free to and should totally disregard Congressional enactments,

regulations and basic common law doctrines. It is in this vein

that the Memorandum for the United States at page 3 states:

**3. The City’s petition presents, inter

alia, the issue of preemption left open by

the court in J//linois v. Milwaukee, supra.

While that question is not inappropriate for

consideration here, we believe it was cor-

rectly decided by the Court of Appeals and,

in the absence of any conflict, we cannot

conclude that further review is warranted.”’

(emphasis added)

In essence, the executive would now first determine whether or

not correct decisions were made by the Court of Appeals. Based

on such determination, the position of the United States as to

whether or not this Court should review decisions would be

made. Certainly the appellate judicial function of this Court

should not depend on a prereview as to the correctness of deci-

sions on issues below by the executive or on the failure of the ex

ecutive to express its opinion as to the correctness of other deci-

sions On issues.

After making its single presentation of a created strawman

argument, the Memorandum for the United States at page 7

states concerning all ‘‘remaining issues’’:

‘*These are matters as to which the United

States expressed no opinion in the court of

appeals and it seems inappropriate to do so

here.”’

Thus does the United States ignore the jurisdictional and venue

issues as well as the numerous other issues raised in the

Milwaukee petition. For example, the courts below failed to

follow the controlling precedents of this Court in respect of rely-

ing on conflicting expert testimony in the absence of

demonstrative or empirical evidence, the rule being that conflic-

ting expert witness testimony in such a situation is not sufficient

to accord relief in an action alleging an interstate nuisance.

(Milwaukee Pet. pp. 33-38.) As to the ‘‘remaining issues’’ not

reviewed by the United States, petitioners also rely on their peti-

tion.

In the two areas where the Memorandum for the United

States argues the authorities for the legal position espoused on

the sole issue it discusses, the Memorandum misses the mark.

First, in arguing its manufactured preemption position, the

Memorandum relies on the legislative history to show that Con-

gress preserved the federal common law existing before the

Clean Water Act (33 U.S.C. §1251). The Memorandum fails to

note that the legislative history quoted at footnote 3 on page 4

and 5 was embodied in Senate and House reports made before

this Court established the existence and applicability of the

federal common law to interstate water pollution in Jilinois v.

-8-

Milwaukee, 406 U.S. 91 (1972). The Memorandum then states

at page 5 that the Clean Water Act only establishes a baseline of

controls and that:

‘‘The states are expressly authorized by

Section 510 of the Act, 33 U.S.C. 1350, to

adopt and enforce still more stringent con-

trols. (footnote omitted) The states also are

given primary responsibility for adoption

of water quality standards under Section

303 of the Act, 33 U.S.C. 1313.’ (emphasis

added)

This is followed by completing the non sequitur with the con-

clusion:

‘*This, as the court of appeals held (Pet.

App. A-17 to A-18), leaves open a continu-

ing role to be played by the federal com-

mon law of nuisance, not inconsistent with

the Clean Water Act.’’ (footnote omitted)

(emphasis added)

Thus, the Memorandum relies on legislative history made when

the federal common law had not yet been established by this

Court, and couples that with statutory references to state power

in an attempt to validate the use below of federal common law

without regard to federal statute.

In the second instance of arguing the authorities, the

Memorandum for the United States makes its argument in foot-

note 5 on page 6. The position taken is that other federal courts

have uniformly concluded that the federal common law survives

the enactment of the 1972 Amendments ‘‘at least as to interstate

pollution.’’ At page 7 of our reply brief herein, we reflect the

fact that all except two of the cases cited in footnote 5 did not

reach the question of the effect of the statutes and regulations

on the federal common law. The two cases cited at footnote 5

and not discussed at page 7 of our reply brief are California

Tahoe Regional Planning Agcy. v. Jennings, 594 F.2d 181, 193

-9-

(9th Cir. 1979), cert. denied, ___ U.S. ____ (No. 79-15, Oct. 1,

1979), which case was dismissed for failure to state a claim

though it did peripherally and without analysis rely on the other

cases cited at footnote 5 for the possible existence of a federal

common law claim if properly pleaded, and United States v.

Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974), cert.

denied, 420 U.S. 927 (1975) which case merely cited the Clean

Water Act but relied on the Rivers and Harbors Appropriation

Act of 1899 (33 U.S.C. §401 et seq.) for its holding.

Certainly these two instances of legal analysis in the

Memorandum of the United States are no predicate for a con-

clusion as to whether this Court should or should not grant

review.

We submit that the number of people affected, the dollar

commitments involved, the uncertainty of the law, the oppor-

tunity for vast amounts of litigation in the area and the overall

importance of the subject — interstate relationships to in-

terstate environments and natural resources — clearly warrant

the exercise of this Court’s appellate review.

-10-

CONCLUSION

Milwaukee respectfully prays that its Petition for a Writ of

Certiorari be granted.

Of Counsel:

QUARLES & BRADY

780 North Water Street

Milwaukee, Wisconsin 53202

and

MICHAEL J. McCABE

735 North Water Street

Milwaukee, Wisconsin 53202

January 25, 1980

Respectfully submitted,

RICHARD W. CUTLER

ELWIN J. ZARWELL

SAMUEL J. RECHT

ANDREW M. BARNES

780 North Water Street

Milwaukee, Wisconsin 53202

(414) 277-5000

Attorneys for Petitioners

The Sewerage Commission

of the City of Milwaukee

and The Metropolitan

Sewerage Commission of

the County of Milwaukee

JAMES B. BRENNAN

Room 800, City Hall

Milwaukee, Wisconsin 53202

(414) 278-2601

Attorney for Petitioner

City of Milwaukee