# Amicus Brief — Milwaukee v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A12 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1981 - **Citation:** 451 U.S. 304 ## Text 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............ PARE ete ensticediemssunsncancesvenlahede sib ssiekadbapednksiasae’ 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A12. Public record. Not legal advice.