Amicus Brief — Milwaukee v. Illinois

we In THE

-

© cranes CourRT OF THE UNITED STATES

\ OcrosBer TE 1979

ce tes

No. 19.403

City OF MILWAUKEE, ET AL.,

Petitioners,

Vv.

STATE OF ILLINOIS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

MOTION OF MID-AMERICA LEGAL FOUNDATION

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

IN SUPPORT OF PETITION FOR CERTIORARI

AND BRIEF OF MID-AMERICA LEGAL FOUNDATION

AS AMICUS CURIAE

JOHN M. CANNON

Counsel For Amicus Curiae

Of Counsel:

Susan W. WANAT

Mip-AMERICA LEGAL FOUNDATION

Suite 2245

20 North Wacker Drive

Chicago, Illinois 60606

In THE

SUPREME COURT OF THE UNITED STATES

OctosBer Term, 1979

No. 79-YOS

City OF MILWAUKEE, ET AL.,

Petitioners,

Vv.

STATE OF ILLINOIS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

MOTION OF MID-AMERICA LEGAL FOUNDATION

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

IN SUPPORT OF PETITON FOR CERTIORARI

Pursuant to this Court’s Rule 42, Mid-America Lega!

Foundation (“Mid-America”) hereby moves the Court for

leave to file the attached brief as amicus curiae in support of the

captioned petition for certiorari. Mid-America understands that

a petition for certiorari also may be filed by the State of Illinois,

et al. and, for the reasons set forth in the attached brief,

supports the granting of such petition.

Mid-America has an interest in the disposition of the case

which is before this Court in the petition(s) for writ of certiorari

to review the judgment and opinion of the Court of Appeals for

the Seventh Circuit in Jilinois v. City of Milwaukee, ___. F.2d

___, 13 E.R.C. 1049 (7th Cir. 1979) based upon the expertise

and purpose of this organization.

Mid-America was organized in 1975 as an Illinois not-for-

profit corporation to engage in non-partisan legal research,

study and analysis for the benefit of the general public as to the

effect of evolving concepts of law on our democratic institutions

and to provide legal representation on matters of public interest

at all levels of the judicial process. Mid-America takes special

interest in questions of law of a national scope that originate in

or have a direct effect on the mid-America region, namely,

Illinois, Indiana, lowa, Michigan, Minnesota, Ohio and Wiscon-

sin. It has an interest in this case because the decision below

interprets the Federal Water Pollution Control Act of 1972, PL

92-500, the Clean Water Act of 1977, PL 95-217 which amends

the 1972 Act, and the federal common law of nuisance in a way

which affects the interests of every state which shares a

waterway with one or more states. By analogy, the implications

of this decision extend beyond the question of interstate water

pollution to include problems of air pollution, land use, safety

and energy production.

Mid-America respectfully submits that its brief, lodged

herewith, presents at least one analysis of a significant question

of federal law and related authority which is not presented by

the parties. It, therefore, believes that the question would not

otherwise be presented, or at least adequately presented with

related authority, although it could be dispositive of whether

this Court grants the petition for certiorari.

3

It is the view of Mid-America that the court below has

decided an important question of the relationship between

federal common law and federal regulatory statutes which has

not been, but should be, settled by this Court and that the

decision below is in conflict with applicable decisions of this

Court under the federal common law of public nuisance.

Mid-America has received the written consent of City of

Milwaukee, et al., copy of this letter has been filed with the

Clerk. Consent was refused by counsel for the State of Illinois,

et al., thereby necessitating this motion.

Mid-America respectfully urges the Court to grant this

motion for leave to file the attached brief as amicus curiae.

Respectfully submitted,

JOHN M. CANNON

MID-AMERICA LEGAL FOUNDATION

Suite 2245

20 North Wacker Drive

Chicago, Illinois 60606

(312) 263-5163

SUBJECT INDEX

INTEREST OF AMICUS CURIAE ...................scccsccssoees

CP eI TT IED acescsnicdsccherasievenedvsorntecensscntveses

FARE EEE Rachaicsisgliktnd Giebitindodimanessavkitenaietenmintalinitis

1. The court of appeals has decided an

important question of the relationship be-

tween federal common law and federal regu-

latory statutes which has not been, but should

be, settled by this Court. ....................ccccceeceeeeeees

2. The decision below is in conflict with

applicable decisions of this Court under the

federal common law of public nuisance............

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8

13

TABLE OF AUTHORITIES

Page

Cases:

Hadacheck v. City of Los Angeles, 239 US.

INE cons ceasccg denice nisedhicadvenviiiveigiananiaaade 7

Harrisonville v. W. S. Dickey Clay Manufac-

turing Co., 289 U.S. 334 (1933). wees 12

Illinois v. City of Milwaukee, 406 US. 91

Ber a Bassas: vical wicsicatciaivatinasincbiassincnnpestietide'es 8

Missouri v. Illinois, 200 U.S. 496 (1906) ......... 7, 8, 10

New York v. New Jersey, 256 U.S. 296 (1921). 7, 8,9, 10

North Dakota v. Minnesota, 263 U.S. 365

EP INs clinsc netieohiaacinptatauaupistavacghiibessiulaghisiinn 6, 7, 10

Ohio v. Wyandotte Chemical Corp., 401 U.S.

eB Fe Baik thai pathic icchcadoussdaiecedenseaaces 8

Parker v. Winnipiseogee Lake Cotton and

Woollen Co., 67 U.S. (2 Black) 545 (1863). 12

Reserve Mining Co. v. EPA, 514 F.2d 492

CNN HN RIP Py di tcicac hance sulinvendesievcduaiaaiases 7

Ricci v. Chicago Mercantile Exchange, 409

aR. SP a: ROPE Bilis ints incedhbinsevaieutdeducseptanivess 6

United States v. Ashland Oil and Trans-

portation Co., 504 F.2d 1317 (6th Cir.

Og) EERE POE SRB ee Se A SER RS 7

Statutes:

Federal Water Pollution Control Act of 1972,

eis MEN iacko hale cks das casthcs cscs canbvashanadeccuwsis ousrs 2, 6,9

Clean Water Act of 1977, P. L. 95-217....000000... 2

In THE

SUPREME COURT OF THE UNITED STATES

OcTOBER TERM, 1979

No. 79- SOF

CiTy OF MILWAUKEE, ET AL.,

Petitioners,

Vv.

STATE OF ILLINOIS, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF MID-AMERICA LEGAL FOUNDATION

AS AMICUS CURIAE

INTEREST OF AMICUS

The interest of Mid-America Legal Foundation (“Mid-

America”) as amicus curiae is stated briefly in the motion for

leave to file this brief. It is appropriate to expand on that

statement here.

Mid-America has an interest in this case because the

decision below interprets the Federal Water Pollution Control

Act of 1972, PL 92-500 (‘““FWPCA”’), the Clean Water Act of

1977, PL 95-217, which amends the 1972 Act, and the federal

common law of public nuisance in a way which affects the

interests of every state which shares a waterway with one or

more other states.

The ramifications of this decision, however, extend beyond

the scope of an individual state’s interest in water pollution to

include potential problems of interstate land use, air pollution,

safety and energy production premised on the federal common

law of public nuisance, a heretofore limited and amorphous

body of law.

The present case, involving allegations of interstate water

pollution, is not singular and should not be considered in

isolation. The geography of the nation itself would turn the

variable standard applied by the district court and the court of

appeals into a quagmire of judicial uncertainty. Every state

which discharges sewage into a common waterway in com-

pliance with federal legislative standards, nonetheless, may be

subject to imposition of more stringent standards under federal

common law, even though the complaining state itself does not

comply with the asserted common-law standard. By analogy

this same discrepancy in standard also would arise in cases

involving air pollution, land use, safety and energy production.

The economic impact of the lower court’s decision is

equally significant. The courts below expanded the role of the

judiciary in this area by effectively substituting their judgment

for that of Congress, the states and local entities in determining

both the priority of expenditures and the methods of abating a

type of water pollution.

It is indeed paradoxical that even though during the course

of the present litigation Congress detailed with considerable

specificity the federal standards for water pollution control and

tightened enforcement procedures under these standards, the

court below chose to ignore these developments and instead

expand the body of federal common law in a manner that can

only result in confusion and proliferation of litigation.

It is on the basis of an appreciation of these circumstances

and the direct application of the precedent established with

respect to the relationship of federal common law and statutory

law in many other areas of current significant legislation that

the amicus has developed an interest in the matter before the

Court.

QUESTION PRESENTED

No matter how the parties may frame the specific questions

presented, the underlying question of the proper relationship

between federal common aw and a related regulatory statute

will be fairly comprised therein. Specifically, the question may

be framed in the terms and circumstances of the case as follows:

Where the occasional discharge of pathogens into

local waters complies with the applicable federal

and state statutes and regulations, does a neighbor-

ing State establish a claim of public nuisance under

federal common law merely by showing that patho-

gens so discharged may sometimes reach its own

waters and possibly infect its residents?

4

ARGUMENT

1. The Court of Appeals Has Decided an Important

Question of the Relationship Between Federal Common Law

and Federal Regulatory Statutes Which Has Not Been, But

Should Be, Settled By This Court.

As the court of appeals recognized, it is “appropriate to

give weight to Congress’ expectations in adopting the [ Federal

Water Pollution Control] Act and the standards established by

EPA pursuant to the Act.” Jilinois v. City of Milwaukee, 13

ERC 1058. How to weigh congressional intentions and to

articulate them with applicable common-law principles is a

question this Court should decide. The answer may bear not

only on cases of interstate water pollution, but on every

controversy in which schemes of federal environmental legisla-

tion and regulation cut across fields of common law, such as

land use, energy, safety and air pollution.

Noticing that common-law remedies are indeed presérved

under FWPCA is only the beginning of the inquiry which this

Court should undertake. A determination that the federal

Statute does not preempt existing law, state or federal, is not

tantamount to a warrant for a court to ignore the statutory

framework of water-pollution control when defining or

remedying common-law nuisances in this field.

Even if the court of appeals had rendered a clearcut

decision on the relationship of the federal statute to common

law, it would be wise for this Court to review the decision

because the ramifications are so sweeping. But the court’s

decision was essentially a compromise which left the governing

rationale open to grave doubt. Review by this Court is thus

plainly required so that in the future parties may conform their

conduct to intelligible standards.

5

In reversing the order of the district court on effluent

limitations, the court of appeals acknowledged that the statu-

tory framework has common-law implications: the order was

overruled because there was no evidence to justify imposing

stricter limitations than those established by EPA. 13 ERC at

1068. Thus, without precluding equitable remedies outside its

own elaborate procedures, the statute operates to caution the

court against fashioning such relief in the absence of a

particularized justification.

Yet the court of appeals effectively ignored the same

statutory framework of regulation in affirming the district

court’s order on overflows of raw sewage: these were to be

totally eliminated even if they complied with EPA regulations

and even though Illinois did not show that the occasional

discharge of raw sewage created a substantially greater risk of

harm to Illinois residents than did the regular discharge of

treated sewage. Id. at 1064.

The district court’s frank confession of bewilderment in the

face of conflicting expert testimony, Pet. Cert. App. F___,

points up a larger conceptual problem with which this Court

should come to grips: the proper function of the specialized

knowledge of experts in deciding questions of common-law

nuisance where agency expertise is already serving to inform a

regulatory scheme based on federal statute.

This particular problem, which again has implications far

beyond the regulatory scheme involved in this case, can be

illuminated by considering the rationale supporting the doctrine

of primary administrative jurisdiction, which speaks to an

analogous concern. Recently, in holding that a proceeding

under the Sherman Act should be stayed until an administrative

agency considered whether a commodity exchange rule was

valid under a regulatory statute, this Court reasoned that

“determination [of facts] will be of great help to the antitrust

court in arriving at the essential accommodation between the

6

antitrust and the regulatory regimes.” Ricci v. Chicago Mercan-

tile Exchange, 409 U.S. 289, 307 (1973). The Court observed

that the trial court would “be in a position to make a more

intelligent and sensitive judgment as to whether the antitrust

laws will punish what an apparently valid rule of the Exchange

permits” if the agency first passed on the precise question

within its jurisdiction. Jd. at 307-308.

In Ricci, the precise reach of the Sherman Act’s broad

language was to be defined by the antitrust court in light of

agency articulation of the narrower regulatory regime. In the

case at bar, the court’s understanding of the merits of the

common-law claim would have been materially assisted by

EPA development of a factual record on the possible dangers of

Milwaukee sewage to Illinois residents. Although Illinois

invoked the enforcement procedures of the pre-1972 Act, it did

not seek relief within the terms of FWPCA by requesting a veto

or modification of the discharge permits. The trial court,

therefore, had to adjudicate the claim without prior agency

consideration of the specific factual question. Accordingly, in

Ricci terms, the court was in a poorer position to make an

informed judgment as to whether the common law should

enjoin what the regulations apparently permit.

In the absence of agency findings on the very point at issue,

a court should be reluctant to expand common-law rights or

remedies in a field where common-law and regulatory regimes

must be accommodated. Indeed, this Court might conclude

that where a statutory scheme of water-pollution control is

operating, the common-law judge should not disturb uncon-

tested administrative decisions—like the decision to issue a

permit to Milwaukee allowing occasional raw-sewage overflows

into Lake Michigan—without a particularized showing of ne-

cessity. Such a conclusion would in no way abridge common-

law rights in contravention of FWPCA section 505 (33 U.S.C.

§ 1365), but would place the burden of proof squarely on the

plaintiff, where it belongs. See, e.g., North Dakota v. Min-

nesota, 263 U.S. 365 (1923). In particular, this would simply

require application to a nuisance question of the court of

appeals’ reasoning on the effluent-limitation remedy.

The court of appeals also found that the correct standard

of proof was a preponderance of evidence. 13 ERC at 1060.

The question of the standard of proof in federal common-law

nuisance actions where this Court does not have exclusive

original jurisdiction has never been addressed directly by this

Court, although where the defendant is a state the standard of

clear and convincing evidence has been applied, New York v.

New Jersey, 256 U.S. 296, 309 (1921); Missouri v. Illinois, 200

U.S. 496, 520-522 (1906). In a case where expert testimony is

in conflict and where hypotheses are stacked one upon another,

the outcome may turn on the standard of proof. This Court

should consider whether a plaintiff—state, political subdivision,

or individual citizen—should be held to the same high standard

of proof where the defendant is a political subdivision of

ancther state. The court of appeals did not explain why the

working of the federal system should require a different stan-

dard in the two cases.

While the standard of proof in interstate actions should

comport with constitutional principles of federalism, the

substantive issue in this case may hinge on the constitutional

division of labor between the courts and Congress. In general,

the legislatures, not the courts, have the power to find that any

risk of harm, however small, is unacceptable. Legislative

definition of a nuisance need only be rational. See, e.g., United

tates v. Ashland Oil and Transportation Co., 504 F.2d 1317,

1323 (6th Cir. 1974); cf. Reserve Mining Co. v. EPA, 514 F.2d

492 (8th Cir. 1975); Hadacheck v. City of Los Angeles, 237 US.

394 (1915). But where a statutory framework of regulation

tolerates certain risks of harm, the expansion of common-law

remedies to protect against the same risks interferes with the

efficient operation of the regulatory scheme, upsets reasonable

expectations, and requires vast expenditures without any clear

hope of significant improvements in public health or safety.

This Court may address this important federal question by

reviewing the present case.

2. The Decision Below Is in Conflict With Applicable

Decisions of this Court Under the Federal Common Law of

Public Nuisance.

Quite apart from the existence of a regulatory regime, the

decision of the court of appeals poses important questions of the

burden and standard of proof in federal common-law nuisance

claims. In an action between states, the question of proof must

be approached with “great and serious caution.” Missouri v.

Illinois, 200 U.S. at 520. The district court and court of appeals

were considerably less than cautious both in assessing the legal

sufficiency of the evidence and in fixing the standard of proof.

The court below rejected the standard of « ear and con-

vincing evidence, which invariably had been applied in inter-

state cases, and attempted to distinguish New York v. New

Jersey and Missouri v. Illinois on the grounds that these were

original actions in this Court, which coped with its unaccus-

tomed role as factfinder by setting a high standard of proof. 13

ERC at 1060. This rationale, set forth as dictum in a later case

where the defendant was a private party, Ohio v. Wyandotte

Chemical Corp., 401 U.S. 493, 501 (1971), played no role.

however, in the interstate cases themselves, where the standard

was chosen because of the quasi-sovereign status of the parties.

Although the sovereignty rationale is not literally applicable to

the case at bar, cf. Illinois v. City of Milwaukee, 406 U.S. 91, 98

(1972), the substantive issue in fact involves the desire of two

states, Illinois and Michigan, to control the conduct of another,

Wisconsin, which issued the discharge permits to Milwaukee, in

a way in which they are unwilling to control themselves or their

.

own political subdivisions. The views of a fourth state with a

direct interest, Indiana, have not been presented. The rule this

Court imposed on itself in New York v. New Jersey should apply

at least as strictly to lower courts which adjudicate interstate

claims. Before a court exercises the extraordinary power to

control one state’s conduct at the instance of another, the

threatened invasion of rights must be “established by clear and

convincing evidence.” 256 U.S. at 309. This is especially true

where, as here under FWPCA, Illinois, Michigan or any

affected state could seek mandatory imposition of the asserted

raw-sewage overflow standard with full benefits of regulatory

agency expertise simply by adopting that standard for overflow

discharges within its own borders. 33 U.S.C. § 1342.

The primary issue in this case, however, is whether liability

for public nuisance was properly established at all. In holding

that the evidence was sufficient to support a finding that

‘defendants’ actions pose a significant risk of injury to Illinois

‘residents,” 13 ERC at 1060—a finding essential to proving a

common-law public nuisance—the court pointed to the follow-

ing facts: pathogens in Milwaukee sewage probably reach

Illinois waters several times a year; these pathogens may infect

drinking-water supplies if treatment plants malfunction, and

possibly otherwise; the pathogens may infect swimmers who

come directly into contact with them. (The court did not

discuss the sufficiency of the evidence supporting the finding

that Milwaukee’s conduct “constituted a substantial contribu-

tion to the accelerated eutrophication” of the Illinois waters of

Lake Michigan. Jd. at 1062.) This brief parade of possibles

constituted, in the court’s view, sufficient evidence of risk of

harm. It was apparently for Milwaukee to show that its conduct

did not significantly endanger Illinois residents. This Court may

ask whether this novel allocation of the burden of proof is

proper under the common law, with or without FWPCA.

In New York v. New Jersey, this Court required that the

nuisance be “of serious magnitude.” 256 U.S. at 309. That suit

ne

10

was dismissed because New York failed to prove that the

proposed discharges into New York Harbor would cause an

increased danger of disease to New York residents. Jd. at 309-

310. In an earlier case, Missouri’s claim against Illinois had —

been dismissed when no connection was shown between the

fact that typhoid bacilli from Chicago sewage discharges prob-

ably survived the journey to the St. Louis water intake and the

increase in typhoid fever deaths in St. Louis. Missouri v.

Illinois, 200 U.S. at 522-526. By applying the reasoning of the

court of appeals to the Missouri case, a court could have found

sufficient evidence of nuisance merely by noting that pathogens

from Chicago likely arrived in Missouri and might infect its

residents. But this Court, exercising caution, did not find a

significant risk of injury in such a string of commonplaces.

The holding of New York v. New Jersey was followed

expressly in North Dakota v. Minnesota, 263 U.S. at 374.

Finding that the plaintiff failed to sustain its burden of proof,

this Court went on to observe:

“It is difficult for a court to decide issues of fact

upon which experts equal in number and standing

differ flatly and when their conclusions rest on

estimates upon the correctness of which the court,

without technical knowledge, cannot undertake to

pass. In such cases, the court looks about for _

outstanding facts from which the lay mind can

safely draw inferences as to the probabilities.” Jd.

at 385-386.

The court of appeals in the present case, rather than draw

inferences as to the probabilities, either safely or rashly,

apparently found it unnecessary seriously to consider probabil-

ities at all. The parade of plausibles or possibles, expressly

based on “less evidence than [Illinois] should have [pro-

duced]”, Pet. Cert. App., F.___, satisfied the court’s peculia:

test of minimal probability and effectively shifted the burden of

proof to the defendant. The approach taken by this Court has

11

been consistently different, yet the court of appeals gave no

reason for its radical departure from established principles of

the federal common law of nuisance.

By contrast, in the court of appeals’ reversal of the district

court on the effluent limitation, we see not only a sound

common-law argument, taking proper account of the relevant

statutory framework, but a model of reasoning which the court

of appeals ought to have applied to the overflow prohibition

and to the primary question, that of liability itself.

After establishing liability on the basis of what is merely

possible, the court reversed the district court’s order in so far as

it imposed an effluent limitation several times stricter than

EPA’s. The court reasoned that evidence must be given to

support the conclusion “that the relief granted is necessary to

protect the complaining party from harm.” 13 ERC at 1067.

Although “general testimony” was offered that a stricter stan-

dard, measured in milligrams per liter, correlated with more

effective chlorination, the evidence did not “show how much

more effective chlorination would be a[t] 5 mg/1... than at 30

mg/1”. Jd. “[T]he difference may be significant or it may be

de minimis.” Id. The question, in assessing the justification of

the relief granted, was “‘whether significant benefits will result”

from the higher standard. Jd. The court noted that the

evidence ‘“‘consists merely of conclusions of [certain] experts

and does not explain why the particular standards are necessary

to protect the health of Illinois residents.” Jd. The district

court’s conclusion rested on “‘a speculative and uncertain basis.”

13 ERC at 1068. Finally, the court of appeals looked to the

EPA effluent limitations, holding in effect that a particularized

justification was required for imposing stricter standards. Find-

ing no justification in the record, the court did not sustain the

order. Id.

The court of appeals’ attempt to distinguish the overflow

order from the effluent-limitation order is unpersuasive. The

court baldly asserted that the probabilities of harm from raw

12

sewage are significantly greater, though it is plain that the sort

of particularized support the court required with respect to the

effluent limitation was totally absent. 13 ERC at 1069.

The court also remarked that FWPCA itself “arguabl[y]”

prohibits discharges of raw sewage. /d. Since Illinois sued only

on a common-law theory, the intended force of this point must

be to bolster the court’s novel burden-shifting procedure by

suggesting that it is consistent with congressional policy. We

need not address the merits of the court’s quite unprecedented

construction of the statute, however, to argue that, while

Congress or any legislature may prohibit conduct having a risk

of harm without any showing of actual harm, an injunction will

not issue from a court of law in nuisance cases simply as a

matter of course. Harrisonville v. W. S. Dickey Clay Manufac-

turing Co., 289 U.S. 334 (1933). Generally, “if the evidence be

conflicting and the injury doubtful, this extraordinary remedy

will be withheld.” Parker v. Winnipiseogee Lake Cotton and

Woollen Co., 67 U.S. (2 Black) 545, 553 (1863) (dictum).

Nor is it clear that congressional intent would be honored

by expansion of common-law remedies. The difference be-

tween legislative and judicial proscription may not be merely a

difference in degree. It is easily conceivable that the two

regimes may clash, and, in the meantime, all parties must pay

the price of uncertainty in trying to conform to the requirements

of the law. The specter of costly and potentially stultifying

confusion thus raised by the decision of the court of appeals 1s a

reason for this Court to review this case.

13

CONCLUSION

For the aforegoirg reasons, a writ of certiorari should issue

to review the judgment and opinion of the United States Court

of Appeals for the Seventh Circuit.

Respectfully submitted,

JOHN M. CANNON

Attorney for Mid-America

Legal Foundation,

Amicus Curiae*

Of Counsel:

SUSAN W. WANAT

MID-AMERICA LEGAL FOUNDATION

Suite 2245

20 North Wacker Drive

Chicago, Illinois 60606

(312) 263-5163

* We wish to acknowledge the assistance of Philip Fertik, a law

student at The University of Chicago Law School, and Carol

Lifland, a law student at Northwestern University School of

Law.