# Respondents Brief — Milwaukee v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 304

## Text

a

No. 79-408

Supreme Court, U.S
ot Led.

IN THE OCT 22 1980
Supreme Court of the Gnited GALES, RODAK, JR CLERK

OCTOBER TERM, 1979

CITY OF MILWAUKEE, THE SEWERAGE COMMISSION
OF THE CITY OF MILWAUKEE, AND _ THE
METROPOLITAN SEWERAGE COMMISSION OF THE

COUNTY OF MILWAUKEE,
Petitioners,

vs.

PEOPLE OF THE STATE OF ILLINOIS AND PEOPLE OF
THE STATE OF MICHIGAN,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF RESPONDENT
PEOPLE OF THE STATE OF ILLINOIS

TYRONE C. FAHNER
Attorney General
State of Illinois

JOSEPH V. KARAGANIS
SANFORD R. GAIL
Special Assistant
Attorneys General
150 N. Wacker Drive
Chicago, Illinois 60606
(312) 782-1905
Of Counsel:
A. BRUCE WHITE
RUSSELL R. EGGERT
JEFFREY T. RENZ
150 N. Wacker Drive
Chicago, Illinois 60606
(312) 782-1905

Pandick Press Midwest, inc. Chicago «* 454-7600

QUESTIONS PRESENTED FOR REVIEW

1. Under Article III of the Constitution and the Judicial
Code, what are the constitutionally proper forums when a State
seeks to prevent injuries to its citizens from the tortious acts of a
citizen of another State? Can a complaining State be con-
stitutionally compelled to seek relief in either the state courts or
the state administrative agencies of a defendant citizen?

2. Where the separate and independent grounds for relief
were asserted in the District Court—one based on federal
common law, one based on an Illinois state statute and one
based on state common law—was not the District Court correct
in applying federal law to the federal common law claim and
state law to the state statutory and state common law claims?
Under Erie v. Tompkins, 304 U.S. 64 (1938) and Guaranty
Trust Co. v. York, 326 U.S. 99 (1945), is not this Court
constitutionally compelled to apply state statutory and common
law to these claims having their source in state law?

3. Where a federal court fashions “interstitial” federal
common law to implement the general goals of a Congression-
ally established statutory program, does the federal court have
constitutional authority to oust (preempt) concurrent state
statutory and common law remedies where the Congress has
expressly declared its intent to preserve state common law and
State statutory remedies?

4. In the enactment of the 1972 Amendments to the
Federal Water Pollution Control Act (P.L. 92-500) and the
1977 Amendments to the same Act (P. L. 95-217) did Congress
intend to oust state statutory and common law remedies from
operation or did Congress intend to preserve the concurrent
operation of those state statutory and common law remedies?

5. Where Congress has been repeatedly informed through
the pronouncements of this Court, e.g., Vermont v. New York,
417 U.S. 270, 275 n. 5 (1974), and the express holdings of the

ii

lower courts that the federal interstitial common law announced
by this Court in Jilinois v. Milwaukee, 406 U.S. 91 (1972) and
Washington v. General Motors Corp., 406 U.S. 109 (1972) has
not been preempted by either the Clean Air Act or the Federal
Water Pollution Control Act Amendments of 1972 (P.L. 92-
500) and Congress has not changed the law, can Congress be
held to have ousted interstitial federal common law from the
fields of air and water pollution control?

6. Has a violation by Milwaukee of Illinois’ rights under
the Illinois Environmental Protection Act, state common law
and federal common law been established where both the
District Court and the Court of Appeals found—after an
exhaustive review of the evidence—and on the basis of uncon-
tested evidence that:

a. It is undisputed that Milwaukee discharges huge
volumes of raw or inadequately treated sewage into Lake
Michigan containing billions of disease-causing virus and
bacteria on a frequent basis. This information is based on
both undisputed general scientific knowledge about the
content of human feces as well as voluminous sample data
for fecal bacteria.

b. It is undisputed that these patltggens are carried by
shore parallel currents into Illinois waters of Lake Michi-
gan on a periodic basis. There was no dispute among all
Parties’ experts that such transport does take place and that
the time of travel can be as little as two days. The only
dispute among experts was as to the frequency of such
transport and all agreed the frequency could vary from
year to year. All of the expert testimony was based on
massive amounts of data collected from Lake Michigan as
to current, speed, persistence, and direction, as well as data
on dispersion.

c. It is undisputed that bacterial pathogens survive as
long as four days to eight days and that viruses survive at
temperatures found in Lake Michigan for several weeks to
months.

d. It is undisputed and two courts found that Mil-
waukee viruses and pathogenic bacteria in Illinois water
create a serious health hazard for swimmers and that

ill

viruses can survive the treatment processes at drinking
water plants thus creating a severe health hazard.

e. It is undisputed that large numbers of people in
Illinois and in Wisconsin are being infected with enteric
viral disease, but for a variety of reasons—including the
fact that for every 100 persons infected only one will
exhibit evidence of a disease—it is impossible to develop
an epidemiological link between the source of con-
tamination and the infected victim.

f. It is undisputed that there are bacterial counts on
northern Illinois beaches which are clearly of human»
origin, but that it is impossible to identify the discharge
source of this bacteria. Bacteria in open waters of Lake
Michigan (a) are invisible to the naked eye and (b) do not
carry certificates of origin.

7. Has a violation by Milwaukee of Illinois’ rights under
the Illinois Environmental Protection Act, state common law,
and federal common law been established when both the
District Court and the Court of Appeals found—after an
exhaustive review of the evidence—that:

a. Phosphorus is the primary chemical ingredient
which accelerates the aging or “eutrophication” of Lake
Michigan, changing it from a clear fresh body of water into
a lake clogged with algae;

b. Milwaukee’s antiquated sewage treatment plants
discharge over 50% of the total sewage load of phosphorus
into all of Lake Michigan, with Milwaukee’s raw sewage
overflows adding an untold additional amount;

c. Lake Michigan is becoming increasingly eutrophic;

d. The phosphorus and other nutrients as well as the
algae they produce travel throughout the nearshore zone
without regard to invisible state borders;

e. It is uncontested that communities along the north
shore of Illinois experience increasing algal taste and odor
problems with drinking water drawn from Lake Michigan;

f. It is uncontested that if left unchecked this eu-
trophication process will harm fish spawning areas.

iV

8. After 13 years of interminable administrative and
judicial delay—exacerbated in great part by Milwaukee’s con-
stant and repeated maneuvers to avoid a judicial determination
of liability and the imposition of an effective judicial rem-
edy—and after detailed determination of both liability issues
and the remedy issues by both the District Court and the Court
of Appeals, can Milwaukee create further delay by invoking the
same tired arguments of which this Court rejected ten years ago

where:

a. The permit system cited by Milwaukee is adminis-
tered by a Wisconsin state agency. [Illinois cannot be
constitutionally compelled to try its complaints in the state
courts or agencies of the defendant;

b. By their own terms the Wisconsin permits provide
the same basic relief as contained in the Amended Judg-
ment Order, but have no legal effect because the permits
are limited to five years and the relief requested here will
take a minimum of 13 years. The permits contain no
deadlines for achievement of any effluent controls on any
overflows even though the permits—like the Amended
Judgment Order here—call for elimtnation of the over-
flows in the separated area which comprise 95% of the
sewtr collection area; -

c. .The state permits expressly disclaim any legal
connection with the eleventh hour consent decree between
Wisconsin administrative officials and Milwaukee entered
into on the eve of the federal court’s decision here;

d. The eleventh hour consent stipulation between
Milwaukee and Wisconsin officials is enforceable only in
Wisconsin courts and is subject to consensual changes
between Milwaukee and Wisconsin officials at any time;

e. The eleventh hour consent decree is so open-ended
that the deadiine for completion of the combined sewer
area corrective «measures—which are as yet undefined .
three years after the consent stipulation was entered—may
never be completed, and at the very least, may not be
completed until the year 2025.

9. Will this Court be deceived by Milwaukee’s and the
amici sewage agencies’ audacious attempt to obtain a judicial
amendment to the Clean Water Act giving judicial approval of

Vv

“cost-effective” water quality standard violations where the
Congress has dictated a completely different definition of “‘cost-
effective” under §212 and 40 C. F. R. Part 35, Subpart E,
Appendix A, 4] 4b—i.e., the least cost method necessary to
achieve water quality standards through § 301(b)(1)(C); and
where Milwaukee has been unsuccessful in selling its argument
to Congress?

10. Where Milwaukee consciously and intentionally dis-
charges hundreds of millions of gallons of raw and in-
adequately treated sewage into Lake Michigan every year, and
where this sewage is carried with Milwaukee’s knowledge into
Illinois waters on a regular basis, endangering Illinois’ beaches
and water supply:

a. Does a federal District Court in Illinois have in
personam jurisdiction?

b. Was venue proper in the District where the injury
occurred?

vi

TABLE OF CONTENTS

Page
Questions Presented For Review. ...............cccccceseseeeeeeeeeees i
Pe a iiithcciciscisncnicsnvanisidinbaiaestebassntbeniakenvalnede vi
ee I eit wvvescitcvnnicceiscaid ecnsenteeecsaeoiooesireiiovend x
Statutory Provisions Involved. ..............cccccceesseeeeesseeeeeeeeees XVi
SNE UE Fe I i elieecinncensienacdcaiicaenevtedacesthanabikanns ]
A. Illinois’ Efforts To Abate Pollution Of Lake Michi- ,
IIS chicas sieadlectanica baiialiedannunedaseedl Soinbuentaiabinbiceoacies
l. The Lake Diversion Studies And The
I a innisiksntiinttnsiansapeiaviamianzie 6
& Illinois’ Precarious Position. ..................++- 8
3. The Effort At Administrative Abatement
Through The Federal Water Pollution
IE PINs saints scans eicddbiaisiiviccunvndadiiers 8
4. Illinois Seeks Judicial Abatement. ........... 9
B. Illinois v. Milwaukee In The Supreme Court
PIE SMI siisds tl dhesdecstaciercdbantienebessnbiahitiedbinupbasrcactpens 12
C. The Procedural History Of This Case....................... 13
Ds ©) IRR RIO chcessacciecsuonrencdintenrenceusvess 13
r 5 Milwaukee’s Pre-Trial Maneuvers........... 13
3. The Evidence At Trial. ..........c.cccccccccossscees 15
4 The Judgment Of The District Court on
Nissin tits skis iedbainiteh ci caciininclomninstoaneuies 16.
5. |The Remedy Ordered By The District
A cs Micniiethisiidicuiinsavananiobabtibessidersbdacien 17
he Se cerita teins saeteittentoaacepbiocinval 17
i. The Separated Sewer Area...... 17
ii. Combined Sewer Area
SRE ditt linsiiedisibatiebicaeateiess 18
ae | ARERR RREGOP OO 19
6. The Decision Of The Court of Appeals... 20
SuammAy OL ALSUMOAE, ...circsiccorcrnsccesesdsicecscrccoseseceessosansees 20
A. Legal And Constitutional Framework For Illinois’
Rp: sdhesiieceh dicland.ceichiucesiidebaeaeasssalcabtumianrabdneianteibveiesees 20

B. The Evidence To Support The Decision Of Liabil-
NG -aibinsessehinclesshivsa Gaiuiniddidiandeciuaaiaiemnbiaediiaidaanibiics 22

Vii

C. Milwaukee’s Arguments.............ccccccccsssseccrssesssssssccees
1. Compliance With Wisconsin Abatement

ica dinicsctanihemiahcaninieiblaastagecenbiptense
4 Cost-Effectiveness. .............ccccccscssseeseseseeees
3. In Personam Jurisdiction. ..............000000000
4. gS RRRERT RIN OM Le. Sa

FRI, ccistiiiecnssansitiisciabiincstininaicstiskinupindiidibintiiaiiibnididmniinheininds
I. Under The Constitution Illinois Cannot Be Com-
pelled To Litigate Its Claim Against Milwaukee

In The State Courts Of Wisconsin.................000000+-

A. This Is A Suit By A State Against A
Citizen Of Another State. .....................

B. This Is Not A Suit By A State Against
BE I va kissbaiccintincenttbacivinttuncniices

C. This Court’s Dilemma Really Centers

On The Search For An Alternative

ROPERS Serger {Seeley aN

II. Choice Of Law— Under The Constitution The Law
To Be Applied In Determining Claims Of
Substantive Right Is The Law Which Is The
Source Of The Substantive Right.........................

III. Judicial Declaration Of A Federal Common Law
Right As An Interstitial Remedy To Effectuate A
Congressional Purpose Cannot Oust State Legis-
latures And Courts Of Their Law-Making Power
Unless Congress.Clearly Intends State Law To

SNE III ictdciceciniscanicncccsnbaceciiencalanleobioisiidindhaninhes

A. The Source Of The Federal Common

Law Of Nuisance Articulated By This

Court Was “Interstitial” Federal

CI Be sictiticbtckcntesnsinsenstiinccnines

B. Federal Interstitial Common Law Can-

not Oust Concurrent State Statutory

And State Common Law Unless The

Statutory Scheme On Which The In-

terstitial Federal Common Law Is

Based Demonstrates A Clear Intent

To Oust State Law. .............. ccc cceeeeeeeeeees

C. The Constitutional Mandate of Erie

That State Law Govern The Determi-

nation Of Rights With Their Source In

State Law Is Consistent With The

Court’s Decision In Iilinois v. Mil-

i siiccin cts cote clctidedagetteistieintecnn

30

32

32

34

35

Vii

D. The Law Applied In Suits By One State
Against Another State Does Not

Apply To Interstitial Federal Com-

NG siciitcicstiniaichshtideasinahleniadanitennapnonnes

E. Congress Has Not Preempted State Stat-

utory And Common Law Remedies

To Abate Water Pollution. ...................

1. The Law Of Preemption. .................

2. Congressional Intent To Preserve

BN GND sAiecneccinchnaddeginnsiccnnenntnniennes

F. Congress Was Aware Of Court Deci-

sions That The 1972 FWPCA Amend-

ments Had Not Preempted Federal

Common Law. With This Knowledge

It Rejected Attempts To Preempt

Both The Federal Common Law And

The Result In This Case. ......................

IV. The District Court Properly Held That Federal
Law Governs The Federal Common Law Claim

In Count I And That State Law Governs The

State Statutory And State Common Law Claims

Ba II sceciachsaniibestanmndacediniadnstaacennraees

V. The Evidence Before The Trial Court Below
Overwhelmingly Demonstrates Milwaukee’s
Liability For Contaminating Illinois Waters Of

Lake Michigan Under The Federal Common
Law, The State Common Law, And The Illinois
Environmental Protection Acct. .............:cccceeeeeeeees

VI. Wisconsin’s Abatement Requirements Continue
To Be Plagued By Lack Of Specific Com-
mitments And Lack Of Precise Deadlines............

A. Wisconsin’s Pollution Control Requirements ..

B. Wisconsin Permits Are Not A Defense. ...........

C. Illinois Permit Requirements Are As Strict As

The Judgment Ordet............cccccccccscsssscsccseeees

VII. ‘“Cost-Effectiveness” As Used In The Clean Wa-
ter Act Means The Least Resource Cost To
Achieve The Requirements Of The Act: “Cost-
Effectiveness” Does Not Allow Milwaukee To
Violate Water Quality Standards Under

§ 301(b)(1)(C) And § 303(C). ..... cee eeeeeeeteeeees

VIII. The Cost To Milwaukee Was Considered By
The Courts Below Even Though The Doctrine
Of Balancing Does Not Apply When A Public
Health Nuisance Is Involved. ....................ssse00000

38
39
39
39

42

45

46

47
48
52

53

53

ix

IX. The District Court Had Jn Personam Jurisdic-
tion, And Venue Was Proper In The Northern

"RESIS IT See ON ET | Paar Nee 58
A. The District Court Had Jn Personam Jurisdic-
Nai ca ie cg a a 58

1. Discharge Of Pathogens Into Illinois
Waters Constitutes The Commission
Of “‘A Tortious Act Within” The State
RO dt ei a 59

2. The Contacts Between Illinois And Mil-
waukee Are Sufficient To Support Jn

Personam Jurisdiction......................0060. 60

B. Venue Was Proper In The Northern District
RIE ESE See ERNE Ne I ae 62

1. Illinois’ Claims Are “Transitory” Ac-
TT 63

2. Section 505 Of The Clean Water Act Is
I icici icbectdscsinincosiuinciorarinenes 65

3. Illinois’ Claim “Arose” In The Northern
IE Wi INO gvcsitesscecatcasecscainscrotcsare 66

CI iii a ee cc eundidumlab ies 67

xX

TABLE OF AUTHORITIES

Cases

Alexander v. Tolleston Club, 110 Tl. 65 (1884) ....... 1]
Berenyi v. District Director, Immigration & Naturalization

I Re is I REET vadslescsueserssnctecasstsnaventsistnsondscnce 22, 46
Bethlehem Steel Corp. v. Train, 538 F.2d 513 (2d Cir.

S| FREESE CARE AEE PORE R tree a SN ONO I NATE 51
Board of Commissioners of Jackson County v. United

I, Fe Ci FN let doetenentikiresssvcnnssesvinlonsoseoness 33, 34, 36,

37-38

Board of Commissioners of Ohio County v. Elm Grove

Mining Co., 9 S.E. 2d 813 (W. Va. 1940)... eee eee 57
Board of Supervisors of Fairfax County, Virginia v. United

States, 408 F. Supp. 556 (E. D. Va. 1976) 0... eee 43
Borden Farm Products v. Baldwin, 239 U.S. 194 (1934)... 19-20
Capay ¥. Adams, 1071S. 66 C 1SGO). ivisescessscocccsescsssovscscesecess 65
Chisholm v. Georgia, 2 Dall. 419 (1793) .......ccccceecceccsseeseeeees aia
City of Evansville v. Kentucky Liquid Recycling, Inc., 604

re A FO UTES parce hc sccishavhcksdcsonenecnansnnoneacenncees 66
City of Harrisonville vy. W. S. Dickey Clay Manufacturing

ec, ee a I OI Sess sctnsakiice spit uticbabedtusclenmdbiicniininians 57

Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). 33
Commonwealth ex rel. Schumaker v. New York & Pa. Co.,

BT ey FP Pe BO OTP kcsthcnteisictiicdevsasscnnnontscviacins 5a, 57
Connecticut v. Massachusetts, 282 U.S. 660 (1931) ............ 38
Consolidated Laboratories, Inc. v. Shandon Scientific Co.,

ee Fe FOE A FO ile THREE PB wah sasisdaidiseiscciisrcsasannibennssncene 60
Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129 N.W.

SINE A MWITE cinch suctsacnicctinintesicnigh capita dlensteasnkaetdaap indiana 52
Craft v. I., D. & W., Ry. Co., 166 Ill. 580, 46 N.E. 1132

SPRITE ia esis shea scissaimpetoadhtat ecbaannieiaaiebhbiblatavczclaucsidedphumgmienss 11
Denver & Rio Grande Western Railroad Co. v. Broth-

erhood of Railroad Trainmen, 387 U.S. 556 (1967) ........ 63
Deitrick v. Greaney, 309 U.S. 190 (1940) wo... ce eeeeeeeeeee 33, 34, 37
D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942)....... 33, 34, 37
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ..........ceeeeeeeeee passim

Florida Lime & Avocado Growers, inc. v. Paul, 373 U.S.
Fe A SIE Shick, aie aciaihidisnslactbeablbehitadiedace untadicsbubiniiciagebisbin 40

xi

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).......
Germania Insurance Co. v. Wisconsin, 119 U.S. 473
HU ck nsec Nc thdesce sae dene ego inebaencnaiadeaniosaebiaaeAiacacnil
Graver Tank & Manufacturing Co. v. Linde Air Products
Be ee a IEE ureteninssscecsccebinnepananbiseboatasininakcaddasies

Gray v. American Radiator & Standard Sanitary Corp., 22
ee a, Ee Pe ek Pe EU Becvericeiecectncstsnciesininntans

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) wee

Hanson v. Denckla, 357 US. 235 (1958 ) .............ccccccccsssceeee

Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
es He I picked ictiescstcainiiscabblechaeunswisisialdlarminitiaiahds
Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d 1137
SPs BF Wicsisiicdasusitehsscaisuniiasmbyrnpeneiseduesaiateadteniaeniplieebuaiadabie
Illinois v. City of Milwaukee, 599 F.2d 151 (7th Cir. 1979)
Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ................

Illinois v. City of Milwaukee, 366 F. Supp. 298 (N. D. IIl.
I cascsdaestesits Jac aideisansaa kita cicickslanssiplivaidasglnaeiaatsaciniesaanmasiaalidadeishs

ht RSME SPU APACE BED RDSionbs ues te + Cena eae eee
Kansas v. Colorado, 206 U.S. 46 (1907) .u......cccccceceseeseeeeeeees
Kulko v. Superior Court, 436 U.S. 84 (1978) ........ccccecceeeeeeee
Ladew v. Tennessee Copper Co., 218 U.S. 357 (1910).........

Landfill, Inc. v. Pollution Control Board, 74 Ill. 2d 541,
Be ee TED eiriiisctecietnientss cinennisteenteebeaemciniaaions

Leroy v. Great Western United Corp., __—. U.S. ___., 99
ee dena cseceoncitacaniesietncicspicsubenncepnsenicihenipidiaiiieamcade

Livingston v. Jefferson, 15 Fed. Cases 660 (No. 8411)
SO ccPREIIMI: POAT (PUNTER ss siach ninaechncbleondistd sad asibaebioemsiibacibiieaabin

Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95
ERE 55 gt ETT REE MMe Servant FICS ee

BURP sictiarsssansnsisuibcahidetiasiansuaviijionnien vieneshtebnygenisnientiipanitiiaaatedines

IEE B suncunsssocesipiseecnsissnincsenieshsmmenipninauinaemiennniibavevaiiemss

Markham v. City of Newport News, Va., 184 F. Supp. 659
(E.D. Va. 1960), rev’d, 292 F.2d 711 (4th Cir. 1961).....

Maternally Yours, Inc. v. Your Maternity Shop, Inc., 234
Fe Ce CR BED ecctieticionectesacennteesenaheinigeareninniaauinicene

27

22, 46-47

59, 60

i, 31, 37
38, 46,
67

62

39

60
passim
passim

41, 43

60
38
62
64

52
63, 66-67
64
34
60
62

63

xii

Metropolitan Sanitary District v. United States Steel Corp.,
30 Ill. App. 3d 360, 332 N.E. 2d 426 (1975), cert.
EE ME Ee Pe 0 BF PO ovvnscecpusesciccsadssnssasecsessasysncessines

Mianus River Preservation Committee v. E.P.A., 541 F.2d
I i a alan tras rnsckissionanbieencstadendiencincesses

Miree v. DeKalb County, Georgia, 433 U.S. 25 (1977)........

Mississippi & Missouri Railroad Co. v. Ward, 67 U.S. (2
cic canpdtevapsononandtoensvesvesseqsosionsesesene

Missouri v. Illinois, 200 U.S. 496 (1906)...........ccccc cece cess eee
Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957).......

New Jersey v. City of New York, 283 U.S. 473 (1931),
decree mod., 290 U.S. 237 (1933) ...........ccccccssssssscecccessecece

New York v. New Jersey, 256 U.S. 296 (1921) ......cccecec eee eee

New York State Department of Social Services v. Dublino,
a I OI os ciiebeuanteanerencavioasosesncesccoees

Ohio v. BASF Wyandotte, 2 ELR 20338 (N.D. Ohio 1972)
Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971)...
Parks Co. v. City of Decatur, 138 F. 550 (6th Cir. 1905) ....
Pennoyer v. Neff, 95 U.S. 714 (1878) .......ccce eee ceccsccceeeeeeeeeees

People v. City of Port Huron, 305 Mich. 153, 9 N.W.2d 41
Tees a ceeeknnapshesheosundnnte

People v. Republic Steel (South Chicago Works), No. 69
I I eas sccevewnsondnusccsscasbaseshbonbeosousees

People v. United States Steel Corp. (South Chicago
Works), No. 69 CH 3334 (Ill. Cir. Ct.) ....ccccceeesseseeeeees

People v. United States Steel Corp. (Waukegan), 72 C
RIES WME, BURL D sasicccssccnsnscvscsncsuecsisicocsdbesscaszense

People v. United States Steel Corp. (Gary), 72 CH 258
ro sas saunineldvisisoedsbanetnbbanees

People v. Youngstown Sheet & Tube Co., 71 CH 3818 (Ill.
a sesh enbnncnhpensens

People ex rel. Scott vy. United States Steel Corp., 40 Ill.
App. 3d 607, 352 N.E.2d 225 (1976) .......ecccseeeesseesseeeeees

Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S.
ail ccetuniaiiannsodncowedanesees

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ........

The Salton Sea Cases (California Development Co. v. New
Liverpool Salt Co.}, 172 F. 792 (9th Cir. 1909) ........00.....

Shaffer v. Heitner, 433 U.S. 186 (1977) ..0........ccccceceeseseseeeeee

40
1]
passim
63
29, 60

57
10-11
10
1]
1]
11

11, 41, 52

xiii

State ex rel. Shevin vy. Tampa Electric Co., 291 So. 2d 45
AL HINER D5 a's icceidbniecuallan obese henetnehanceusetededdabinets
Steel v. Bulova Watch Co., 344 U.S. 280 (1952) 00...
Stream Pollution Control Board v. United States Steel
Cams, S12 F268 TOG CFU Cat. UDTS ) occcecorsncscsecssseccscentsss
Textile Workers Union of America v. Lincoln Mills, 353
OTF FO BOO FP veinsocnsncsnsisscstsvcsochasevsesnessseIScNcEECdapeEEtEtecssssins

United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp.
110 (D. Vt.), aff'd., 487 F.2d 1393 (2d Cir. 1973), cert.
I Oe PC BTN ices veins tbttiasacdicenssbanerittonselecscoics

United States v. Ira S. Bushey & Sons, Inc., 346 F.Supp.
I WN ins cssika kanchelamsibineasahogbabhomticiianadarimoas

United States ex rel. Scott v. United States Steel Corp., 356
Ny Fh PE ts BIE D senicvrenkcieentetutewesecsinicissunsbanners

United States Steel Corp. v. Train, 556 F.2d 822 (7th Cir.
gE Ree eHLES ats I vo ERO SR AERO SR

Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d
DRG, Fe GE, FREE. Bae 68 F OB ivvcassansercersesesssestcsccnenscesisnsnses

Vermont v. New York, 417 U.S. 270 (1974) once eeeceeeeeeeee

Village of Glencoe v. Metropolitan Sanitary District, 23
Ill. App.3d 868, 320 N.E.2d 524 (1974). eeeeeeee

Wallis vy. Pan American Petroleum Corp., 384 U.S. 63
ERE ERE 9 SE Seto ROE cape ee EN TO

Washington v. General Motors Corp., 406 U.S. 109 (1972)

White Star Mining Co. v. Hultberg, 220 Ill. 578, 77 N.E.
ST ciriciat lok aa onde scare taacdiacialiatlaihina ceabipuacatanbeboesien

Wisconsin v. Illinois, 388 U.S. 426 (1967) .........cccccccecceeeeeees

Wisconsin v. Illinois, 289 U.S. 395 (1933) wo... ceeccecseeeeeeees

Wisconsin v. Illinois, 281 U.S. 179 (1930) oo... eee ee cece ee eee

Wisconsin v. Pelican Insurance Co., 127 U.S. 265 (1888) ..

World-Wide Volkswagen Corp. v. Woodson, US.

EA a A, CIPD wicindesnnthcontbansidiedsitnnnsissinereiverin

Constitutional Provisions
Lk: MOOT, FUND. Dlliy G & senccsencsstinniintbacinintiisinesunbinousiioken
Statutes
Judicial Code, as amended

Be Ne ED ccd ietestsnadsandsnniscchaspnaanesanenspaiqanibaboes
RP TMs TRAN hej bvtaeihaidpcdatanbariwnsséuntncesinienserwieod sanshinns

52
1]

42, 52, 65

33-34, 35-
36

43

43

41, 43

41,51

52
i, 21

4]

35
ii, 21

XiV

Uo calasenidienepeennneminmtias 26
SR OD picasa cpnicsnncdviscvekénnicsunnsernalenainanianss 25, 62-63,
66
a A anlienaeeaneniebnuniied 31
Federal Water Pollution Control Act of 1956, P.L. 84-660,
87 SESSBIRREEE ESI ee SIE ea SURE Ot Oe RRO CRE Pre 4
Federal Water Pollution Control Act, 33 U.S.C. § 466........ 8
Federal.-Water Pollution Control Act Amendments of
ee er PR aethica cactus atibencprdinilaeeeicdeiachwaceaantaadsaiaanasiies i, ii, 13,
14, 22,
40, 41,
42-45,
48
Clean Water Act of 1977, P. L. 95-217 wo. ceeeeeeeeeeees iv, 40, 41,
43
Clean Water Act, 33 U.S.C. § 1251 et seq.
Re SE wih ob > CER eee eer eemrrnerean v, 24, 54,
55
nt ® ok! Bo |S SAR Eee oneriecesa on 54
§ 301(b)(1)(A), 33 U.S.C. § 1311(b)(1)(A) ....... 48, 50
§ 301(b)(1)(B), 33 U.S.C. § 1311(b)(1)(B) ............ 48, 50
§ 301(b)(1)(C), 33 U.S.C. § 1311(b)(1)(C)........... v, 23-24,
48, 50,
51, 53,
54 - 55,
56
ie es EO BUD ocianinsdctostinsdenvecctaevedinntnns’ 53
i a shapenmmanianiebapbaiion 48, 54
rs ae Sis 0 BEI vciccccnttncceccscasessssenecvecetiens 23-24, 51,
53, 55,
56
Ue CG he ee Rai ice B RUUD vncindcininsiesccesvabssincesntsebenin 23, 48, 50,
31. 3
Oe ee hy Fe Wee WE BE ED desc cncinceksencsccnsscocotepebeoonion 52
Oe A, Oe Bis eresLidnssosstnnndinsseciasinetediccintiiernens 42, 44, 65
§ 505(c)(1), 33 U.S.C. § 1365(C)(1) ec eeeeeeeeeeeee 65
Ns ee ae PIE OO Bveieshcsncscdcensaniiissinesenneneneeess 42, 45
Bibi fe BN eee ee ee 51
Ser itis OF Be Pbaidccestuuincdcuceubindaveadtensasnasecdsonconauih 40-41, 44,

XV

Illinois Revised Statutes,
tas tihenenensmeadianiiomaemntisnailGaiie
aR TER re
TI cea niaeeintaiobnapdngiehnenlndnaibinasion
Bs ee Se EE OE BOI on sncnncnccnsiscnensvevececoonececnmnitpndeiniien

I I cision eats pesnicin smeegonisdcebaivatinnacinetiiahiiadipa
I PN dans cacnnncpneneesnetinninhnasanninnnabnhinnsbnssningsiininl

Regulations

40 C.F.R. Part 35, Subpart E, Appendix A, { 4b [43 Fed.
Reg. 44087 (September 27, 1978) ] 0... eeeesseeeeeeseeees
40 C.F.R. § 35.1550 [44 Fed. Reg. 30040 (May 23,
ESS SS ib Ee en eRe
Illinois Pollution Control Board Rule 602 .....................cceee
Wisconsin Water Quality Standards, N.R. 102.02...............

Miscellaneous

Conference. Pollution of Lake Michigan and Its Tributary
BI Crete SOS FC 1 DGG DP o....s. ccc cccesccccccnesssocevcccerasvecss
Conference, Jn the Matter of Pollution of the Interstate
Waters of the Grand Calumet River, Little Calumet
River, Calumet River, Wolf Lake, Lake Michigan and
Their Tributaries (March 1965 ) ...............0..ccccscccccccesecscess

1 Congressional Research Service, A Legislative His-

tory of the Water Pollution Control Act Amend-

ments of 1972, 93d Cong. Ist Sess. (1973)...........

4 Congressional Research Service, A Legislative His-

tory of the Clean Water Act of 1977, 95th Cong.

a
Currie, Enforcement Under the Illinois Pollution Law, 70
i IE I I a sinc Sessnnsbderscaninsie ipeslgenleesianins
The Federalist No. 81 (A. Hamilton ) (Cooke Ed. 1961)...
General Accounting Office, Many Water Quality Standard
Violations May Not Be Significant Enough to Justify
Costly Preventative Actions, CED-80-86 (July 2, 1980)...
Hart, The Relations Between State and Federal Law, 54
en ah, See, SE DO D. . ci ins oc aaculieeideuneeniinnebinuaioiss
Hart & Wechsler, The Federal Courts and The Federal
EE, I sn ccccenesbnnaniioieliondmiesddnbmavatiitenadecahiniih

10

24, 58-59

24, 58-59

ii, 10, 13,
7,

41-42

39-40

XVi

House Committee on Public Works and Transportation,
Case Law Under the Federal Water Pollution Control
Act Amendments of 1972, 95th Cong. Ist Sess. (1977)...

E. Messer, Jurisdiction of A Court of Equity Over Persons
to Compel the Doing of Acts Outside the Territorial
Limits of the State, 14 Minn. L. Rev. 494 (1930)............

Milwaukee Metropolitan Sewerage District, Combined
Sewer Facility Plan (February 1980) .........cecccccceeeeeees

Mishkin, Some Further Last Words on Erie—The Thread,
BF a MU BONES CB OFTEN cick cecccnsscnoncescececccdiseceonsccsecee

Mishkin, The Variousness of “Federal Law”: Competence
and Discretion in the Choice of National and State Rules
for Decision, 105 U. Pa. L. Rev. 797 (1957) .......ee eee.

1 Moore’s Federal Practice, § 0.142[2.1] (2d Ed. 1979).....

Note, Local Actions in the Federal Courts, 70 Harv. L.
aes ies aicaddcyciaccueresiusssisicaceicsienyss

Note, The Original Jurisdiction of the United States Su-
preme Court, 11 Stan. L. Rev. 665 (1959)...

W. Prosser, Law of Torts (4th Ed. 1971) .........ceeeeeee eee:

Report of Special Master Albert Maris in Wisconsin v.
Illinois, adopted 388 U.S. 426 (1967)... eceeeeeeeeees

U.S.E.P.A., Program Requirements Memorandum, PRM
75-34 (formerly P. G-61 ) (1975) wc. eeceecceceeeeeeeeeeeeeees

Wright, Miller & Cooper 15 Federal Practice & Procedure
aia v ahs iaitap Van ebicbsabscasesesnuscaesrapeencee

R. Zener, Water Pollution Control, in Federal Environ-
1 cendisnadbhasconctichtangoecies

STATUTORY PROVISIONS INVOLVED

43-44

1]
51, 56
35

32-33
64, 65

55-56

The following provisions are lengthy and are set out in a

separate appendix.
I. U.S. Constitution
A. Article III, Section 2
B. Article VI, cl. 2

II. Federal Statutes Governing Subject Matter Jurisdiction

and Choice of Law
A. 28 U.S.C. § 1251
B. 28 U.S.C. § 1652

XVil

III. State Statute Relating to Causes of Action Asserted
A. Ill. Rev. Stat. ch. 111%, § 1012
B. Ill. Rev. Stat. ch. 14, §§ 11, 12

IV. Statutes With Respect To In Personam Jurisdiction
A. Fed. R. Civ. P. 4(e)
B. Ill. Rev. Stat. ch. 110, §§ 16, 17

V. Statute Governing Venue
A. 28 U.S.C. § 1391(b)

VI. Statutory Provisions Relating to Defenses by Mil-
waukee

A. Cost-Effective
1 33 U.S.C. § 1292(2)(B), (C)

2. 40 C.F.R. Part 35, Subpart E, Appendix A
[43 Fed. Reg. 44087 (September 27, 1978) |

B. Statutory Provisions Relating to Congressional
Intent to Preserve the Application of State Statu-
tory Law and Common Law to Impose More
Stringent Antipollution Control Through Either
Administrative or Judicial Action

1 33 US.C. § 1365(e)
2. 33 US.C. § 1370

No. 79-408

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1979

CITY OF MILWAUKEE, THE SEWERAGE COMMISSION
OF THE CITY OF MILWAUKEE, AND THE
METROPOLITAN SEWERAGE COMMISSION OF THE

COUNTY OF MILWAUKEE,
Petitioners,

vs.

PEOPLE OF THE STATE OF ILLINOIS AND PEOPLE OF
THE STATE OF MICHIGAN,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF OF RESPONDENT
PEOPLE OF THE STATE OF ILLINOIS

STATEMENT OF THE CASE

Introduction

This controversy has its factual origins in the inestimable
value of Lake Michigan as the principal source of water
recreation and drinking water supply for millions of residents of
northern Illinois. To the congested urban population of
northeastern Illinois, the Illinois shoreline of Lake Michi-
gan—particulerly in the stifling heat of a midwestern sum-
mer—represents an invaluable natural treasure.

2

Unfortunately, the Illinois waters of Lake Michigan are
extremely vulnerable to discharges of pollutants. Pollutants
discharged into Lake Michigan are not uniformly dispersed into
the Lake. Instead, pollutants are often transported up or down
the shoreline depending on the direction of wind driven shore-
parallel currents. Under winds of various speeds and per-
sistence these shore-parallel currents can carry a polluted mass
up to 60 miles along the shoreline [PI.Ex. 20 at 115-116].
Milwaukee Harbor is only 37 miles from the Illinois state line
(TR. 1020), and the defendants’ South Shore treatment plant is
only 25 miles from the state line (See Map exhibit, Pl.Ex. 137;
Pet. App. at B-10 to B-12).*

Milwaukee’s witnesses admit that pollutants discharged by
Milwaukee will be transported into the Illinois waters of Lake
Michigan.

“Q. There is no question that everything you have seen

indicates that a substance which is placed at Milwaukee
will reach Illinois waters, isn’t that right?

A. Correct, at some frequency.”
Dr. Donald Pritchard, T.R. 7175

There is a second phenomenon which increases the haz-
ards of pollution in Lake Michigan. Coupled with the transport
of pollutants over long distances by these shore-parallel cur-
rents is the fact that large masses of pollutants discharged into
the Lake disperse very slowly. Under adverse conditions the
dilution from the original pollution strength could be as little as
15% at the time Milwaukee’s pollution reached the state line
(Pet. App. B-18). Defendants’ witnesses at trial—using dilu-
tion tests they themselves performed—admitted that dilution of
pollutants discharged at Milwaukee would be as low as 5 to 1
when they reached Illinois waters (TR. 8920; Pet. App. B-18).

* Hereinafter the Appendix to the Petition for Certiorari is cited
as “Pet. App.,” the Joint Appendix as “J.A.,” and the Appendix to
this brief as “Ill. App.”

3

Illinois’ concern over contamination of Lake Michigan has
focused on three general categories of pollutants: 1) industrial
contaminants; 2) nutrients; and 3) enteric pathogens.

Industrial Contaminants. While serving as an invaluable
recreation resource and source of drinking water, southern Lake
Michigan has also served the water supply needs of a vast
industrial complex concentrated in south Chicago and the
Indiana shoreline of Lake Michigan. Within this Chicago-Gary
complex sits the largest production capacity for steelmaking in
the United States as well as extensive oil refining facilities. In
years past these industrial facilities used Lake Michigan as a
waste sink, dumping into the Lake each day billions of gallons
of wastewater contaminated with oil, greases, heavy metals and
ammonia. This industrial contamination had several adverse
effects: 1) it was harmful to the animal life in the
Lake—particularly the bottom dwelling organisms essential to
the food chain in the Lake; 2) it caused taste and ordor
problems in municipal water supplies; and 3) it was hazardous
to the health of persons who consumed the water.

Nutrients. Nutrients, particularly phosphorus, dramatical-
ly affect the water quality of a lake. Lakes are classified by
water chemistry experts and biologists as to their “trophic”
status, i.e., the quantity and quality of nutrients and biological
material in the lake (TR. 2823). In an “oligotrophic” lake the
water is clear and clean; in a “eutrophic” lake the water is
cloudy and murky from the growth of suspended plant life
known as phytoplankton (TR. 2824).

As a lake becomes more and more “eutrophic,” objection-
able plants are found along the shores, and when they die off,
they create obnoxious smells (TR. 2826). Low levels of
unobjectionable suspended algae are replaced by obnoxious
forms of algae that can cause a scum on the water surface (TR.
2837). These obnoxious forms of algae can cause severe taste
and odor problems in public water supplies (TR. 12527). The

4

nuisance and water quality degrading potential of eu-
trophication is not merely hypothetical. Communities along the
entire lakeshore now experience taste and odor problems
caused by algae in the water they get from Lake Michigan (TR.
13530). This eutrophication process also poses a threat to fish
spawning grounds (TR. 12727).

Lake Michigan is becoming more and more eutrophic
(TR. 2883, 3297). Several experts testified that, unless correc-
tive action is taken to reduce the nutrient load from sewage
plants, southern Lake Michigan is likely to become like western
Lake Erie or Green Bay, which are notoriously degraded bodies
of water (TR. 12644, 12647).

Enteric Pathogens. Raw and inadequately treated sewage
contain enormous numbers of pathogenic’ organisms, both
bacteria and viruses. Any urban center like Milwaukee contains
persons who are infected with pathogens and who are shedding
bacterial and viral pathogens through their feces (TR. 3101,
2174).

Bacteria and viruses are two totally different pathogenic
groups. Within the bacteria group there are hundreds, if not
thousands, of different strains of pathogenic bacteria. For
example, Salmonella has over 400 different subtypes, and
Shigella has over 600 different subtypes (TR. 3053). Because
of the enormous number of individual bacterial pathogens, no
single test can identify the bacterial pathogens which may be
present in water (TR. 3056, 3097). Instead, public health
Officials use an indicator—a nonpathogenic bacteria called
“fecal coliform’”—which has been statistically shown to be
present in fecally contaminated water when pathogenic bacteria
are also present.2

1The noun “pathogen” or the adjective “pathogenic” refers to
the disease-causing nature of these organisms (TR. 2155).

2 Unfortunately, the absence of fecal coliform bacteria has no
correlation with the presence of viruses. Even a finding of no fecal
coliform does not mean viruses are not present—viruses have been
found in water free from fecal coliform (TR. 2201).

Viruses are the more serious group of fecal pathogens. A
virus is an incredibly small object less than one millionth of an
inch in diameter (TR. 10171). A single gram—1/454 pound
—of human feces from an infected individual can contain
millions of viruses (TR. 10278). Depending on the level of
disease within the community, raw sewage can contain from
approximately seven thousand to several hundred thousand
viruses per liter (TR. 2180). Viruses are highly infectious and
as little as one virus can cause disease (JA 157-158).

Many people infected by enteric viruses (viruses which
pass from the body in feces) do not show any disease symp-
toms. Viruses simply multiply in the lining of the gut and are
excreted with the feces without causing any disease symptoms
(TR. 2157). A thousand people may become infected before
one shows a clinical symptom of disease.2 Yet these
asymptomatic infected carriers pass on just as many viruses as a
diseased person (TR. 2145, 2157, 2174).

The common denominator of all these enteric viruses is
that they leave the body of a carrier by means of the feces (TR.
2147). Thus, fecal material is a necessary link in the trans-
mission of the virus to the next victim. This is called “‘fecal-oral
transmission” (TR. 2155).

3 Actual disease symptoms only appear when a particular virus
enters the bloodstream through the lymph glands (TR. 2143) and
attacks a “target” organ, such as the heart, lungs, brain or central
nervous system (TR. 2157). Polio is an enteric virus that attacks the
tissue of the spinal cord (TR. 2161, 2165). Coxsackie virus causes
pleurodynia—a disease of the covering of the lungs which causes a
great deal of inflammation and pain (TR. 2164). Coxsackie B virus
has as its target organ the muscle tissue of the heart causing such
diseases as pericarditis (TR. 2167) and myocarditis. Myocarditis is a
particularly severe and sometimes fatal heart disease in young
children (TR. 2160). Coxsackie viruses also have been found to
increase the incidence of birth defects (TR. 2167) and are suspected
of triggering diabetes in susceptible individuals (TR. 13211). Hepa-
titis A is an enteric virus which attacks the liver (TR. 2168).

6

Viruses are incredibly difficult to detect with accuracy (TR.
12333). Beyond the difficulties of detecting for virus are the
diagnostic and epidemiologic difficulties in tracing an enteric
disease (i.e., caused by fecal-oral transmission). Because of the
epidemiological problems of hidden carriers (infected persons
without symptoms who may be in the chain of infection), lack
of diagnosis, and lack of reporting (most cases are not report-
ed), it is difficult, if not impossible, to trace fecal pathogen
infection back to a source (TR. 2192, 13195-13198, 13223-
13224).

Contrary to the statements by Milwaukee, Illinois is cur-
rently suffering fecal contamination of its northern Illinois
beaches (PI.Ex. 172, 173; TR. 3111, JA 341). Moreover,
Illinois residents are currently suffering enteric bacterial and
viral diseases (TR. 2155; Df. Ex. 83).

A. Illinois’ Efforts To Abate Pollution Of Lake
Michigan

1. The Lake Diversion Studies and the Maris Report

Illinois did not fully appreciate the seriousness and the
interstate transmission of these pollution problems until
Wisconsin and other Great Lakes States reopened the lake
diversion litigation in 1959 asking that Chicago be ordered to
return its treated sewage to Lake Michigan. Wisconsin v.
Illinois (Nos. 1, 2 and 3 Original).

As part of the hearings in that case, the United States
Public Health Service conducted extensive studies of Lake
Michigan. These studies, conducted in the early 1960’s,
disclosed serious interstate pollution problems in Lake Michi-
gan as to nutrients, enteric pathogens and industrial pollutants.
The results of these studies—particularly as to nutrients, enteric
pathogens, and pollutant transport—were incorporated into
extensive findings of fact filed by Special Master Albert Maris
on December 8, 1966, and adopted by this Court on June 12,
1967 (388 U.S. 426). Judge Maris’ report clearly sets forth the

7

serious pollution problems plaguing Lake Michigan. ( See, e.g.,
Report of the Special Master at 183-190 on nutrient eu-
trophication. )

Judge Maris’ findings as to virus are extremely pertinent
here. As to drinking water supplies at water treatment plants,
he concluded:

“..It is known that virus particles can pass through the
filtration process under conditions which might happen
unintentionally for short periods of time in actual water
treatment plants under modern practices, and that the
viricidal efficiency of chlorine is considerably less than for
bacteria, and is subject to wide variations. There is not
known at this time any technique adaptable to field
operating conditions which can insure that consistent
removal of all viruses from a raw water supply subject to
sewage pollution .... it would not be justifiable from the
viewpoint of public health to subject any water supply to any
contaminant known to contain or thought likely to contain
pathogenic viruses, if an alternative method of disposing of
the contaminant is available.”

Id. at 205 (emphasis added )

As to the epidemiologic difficulty of attributing viral
disease to a specific fecal source, Judge Maris found:

“Public health statistics are commonly limited to a few
diseases which are serious and epidemic, and will not
indicate significant differences in the incidence of viral
diseases as between communities which use polluted sources
of water and those which do not.”

Id. at p. 205, 206 (emphasis added )

The extensive Lake Currents Report (1967) done by the
Public Health Service as part of the diversion case, showed that
pollutants could be transported great distances with very little
dilution. (Report of Special Master, at p. 203-204). The
scientist who conducted these studies was Captain James
Verber of the United States Public Health Service, who testified
as a witness for Illinois at the trial below. (Pet. App. B-11).

2. Illinois’ Precarious Position

Illinois’ Lake Michigan shoreline is relatively short
—roughly 60 miles—and is sandwiched between States which
have been nortoriously lenient in policing pollution of Lake
Michigan by industrial and municipal polluters in their own
States.

Near the Indiana/Illinois border sits a vast complex of
steel mills which in years past dumped billions of gallons of
contaminated wastewater daily into Lake Michigan. To the
north, less than 40 miles from the Illinois/ Wisconsin border sits
the Milwaukee metropolitan area which, as the record in this
case shows, discharges billions of gallons of raw and improperly
treated sewage annually into Lake Michigan.

3. The Effort At Administrative Abatement
Through the Federal Water Pollution Control
Act

Prior to seeking judicial abatement against Milwaukee and
other polluters in southern Lake Michigan, Illinois attempted to
abate these discharges through extensive efforts at conciliation
and negotiation under the administrative mechanisms of the
Federal Water Pollution Control Act. 33 U.S.C. § 466. In
1965, Illinois participated in a two-state enforcement confer-
ence brought pursuant to Section 8 of the Federal Water
Pollution Control Act.4 This conference concluded that, inter
alia, “‘Interstate pollution endangering the health and welfare of
persons in a state other than that where the discharges originate _
exists in the waters of ... Lake Michigan” (p. 1573) (emphasis
added ).

Unfortunately, few if any clear enforceable commitments
were made to abate this interstate pollution. Even as to the
weak requirements that were set, the individual States would

4 Conference, In the Matter of Pollution of the Interstate Waters
of the Grand Calumet River, Little Calumet River, Calumet River,
Wolf Lake, Lake Michigan and Their Tributaries (March 1965.)

9

often set deadlines—only to unilaterally extend them whenever
the polluters desired.

Illinois tried again in 1967, this time asking that all of the
pollution discharges into Lake Michigan be the subject of a
conference under the Federal Water Pollution Control Act.
Secretary of Interior Udall agreed:

“Pollution subject to abatement under the Federal

Act is pollution of navigable and interstate waters which

endangers the health and welfare of any person. I have
reports that such pollution is occurring.”

Conference, Pollution of Lake Michigan and Its
Tributary Basin, (First Session) Vol. 1, p. 107
(emphasis added )

Secretary Udall recognized the interstate nature of the
problem: “Pollution crosses political boundaries; so must solu-
tions.” Jd. at 105. He gave an example: “Oil that spills in the
lake at Gary oozes onto the beaches at Milwaukee.” Jd.

Unfortunately, Secretary Udall’s aggressive concern was
not reflected in the actions of the conference. The proceedings
dragged on from early 1968 for the next three years in a
fruitless round of meetings characterized by the same basic
flaws as the earlier conference. Most of the clean up com-
mitments were extremely vague and incapable of enforcement.
There was rarely a commitment to achieve specific re-
sults—either by municipal or industrial polluters. Even where
there was a small portion of a commitment which was specific,
the States would administratively allow polluters to ignore
deadlines with impunity.

4. Illinois Seeks Judicial Abatement

Frustrated by the wholly ineffective conference procedure,
the Illinois Attorney General and the Illinois legislature turned
to state judicial remedies expressly preserved by Congress in
the Federal Water Pollution Control Act, P.L. 84-660, § 8(b).
First in 1969, the legislature statutorily confirmed the common

10

law power of the Attorney General to seek judicial abatement
of pollution independent of claims of administrative remedies,
primary jurisdiction and administrative permits. Ill. Rev. Stat.,
ch. 14, §§ 11, 12 (Ill. App. 4a).

Second, the legislature passed the Illinois Environmental
Protection Act, ch. 111%, § 1001 ef seg. which specifically
provided that no person shall:

“(a) Cause or threaten or allow the discharge of any

contaminants into the environment in any State so as to

cause or tend to cause water pollution in IJIlinois, either
alone or in combination with matter from other
sources...”

Ill. Rev. Stat., ch. 111%, § 1012 (emphasis
added)

Using these statutory tools and state common law power to
abate public nuisances, Illinois brought a series of abatement
actions in Illinois state courts against Illinois and out of state
major polluters of Lake Michigan. Invariably these abatement
actions disclosed that the pollution control requirements im-
posed by administrative agencies were often little more than a
cruel hoax.5

In contrast, this judicial enforcement program for Lake
Michigan was extremely successful. As a result of court orders,
several of the most severe industrial polluters of Southern Lake
Michigan—both in Illinois and Indiana—have constructed
modern state of the art pollution control systems, typically
involving both recycling and filtration of waste waters. In each
case, detailed time schedules were set with firm enforceable
deadlines.§

5 For example, both in Illinois and Indiana throughout the 1960’s
and 1970’s, the basic agency order for pollution control for virtually
all the steel rolling mill operations—which poured millions of pounds
of oil and metals into Lake Michigan—was to combine the multiple
outfall pipes into one or two big pipes and add water for dilution.

6 See, e.g., People of the State of Illinois v. United States Steel
Corp. (South Chicago Works), Circuit Court of Cook County, 69 CH
3334, recycle with zero discharge to Lake Michigan; People of the

(Footnote continued on following page)

1]

In these cases, the Illinois courts have uniformly rejected
every one of the procedural ploys raised here. See, e.g.,
Metropolitan Sanitary District v. United States Steel Corp., 30
Ill. App. 3d 360, 332 N.E.2d 426 (1975), cert. denied, 424 US.
976 (1976); Peopie ex rel. Scott v. United States Steel Corp., 40
Ill. App. 3d 607, 352 N.E.2d 225 (1976).7

(Footnote continued from previous page)

State of Illinois v. Republic Steel (South Chicago Works), Circuit
Court of Cook County, 69 CH 3675, recycle with zero discharge to
Lake Michigan; People of the State of Illinois v. United States Steel
Corp. (Waukegan), United States District Court for the Northern
District of Illinois, Eastern Division, 72 C 2503, recycle with zero
discharge to Lake Michigan; People of the State of Illinois v.
Youngstown Sheet & Tube Company (East Chicago, Indiana), Circuit
Court of Cook County, 71 CH 3818, complete recycle with sand
filtration of remaining wastewater discharged to Lake Michigan;
People of the State of Illinois v. United States Steel Corp. (Gary
Works), Circuit Court of Cook County, 72 CH 258, complete recycle
with sand filtration of remaining wastewater discharged to Lake
Michigan. Many of these remedial court ordered programs have
either been completed or are currently under construction.

7 In invoking the power of the court to order the performance of
remedial acts outside its territorial jurisdiction by a person over whom
the court had in personam jurisdiction, Illinois relied on the following
authority: see Alexander v. Tolleston Club, 110 Ill. 65 (1884); White
Star Mining Co. v. Hultberg, 220 Ill. 578, 77 N.E. 327 (1906); Craft
v. I. D. & W. Ry. Co., 166 Ill. 580, 46 N.E. 1132 (1897); The Salton
Sea Cases (California Development Co. v. New Liverpool Salt Co.),
172 F. 792 (9th Cir. 1909); see E. Messer, Jurisdiction of A Court of
Equity Over Persons to Compel the Doing of Acts Outside the Territo-
rial Limits of the State, 14 Minn. L.Rev. 494 (1930). See also Steele
v. Bulova Watch Co., 344 U.S. 280, 289 (1952). Illinois’ use of its
statutory prohibition against water pollution and its state common law
nuisance power against out of state polluters of Illinois waters was
given express approval by this Court in its decision in Ohio v.
Wyandotte Chemicals Corp., 401 U.S. 493 (1971). See also Ohio v.
BASF Wyandotte, 2 ELR 20338 (N.D. Ohio 1972).

12

B. Illinois y. Milwaukee In The Supreme Court
Round One

With few exceptions, Illinois suits to abate Lake Michigan
pollution were brought in state courts. One exception was
Illinois v. City of Milwaukee, No. 49 Original filed December 9,
1970. Illinois’ position was clear: the State wanted to invoke
the original jurisdiction of this Court to avoid the delays
resulting from “long drawn out contests in the lower courts.”
Illinois Statement and Brief in Support of Motion to File a Bill
of Complaint, at 15. In support of its motion for leave to file,
Illinois likened the suit to one against the State of Wisconsin
itself, rendering jurisdiction a “constitutional imperative.” Jd. at
15-16.

The defenses raised by the Milwaukee defendants in
Illinois v. Milwaukee were virtually identical to those now
raised ten years later: (1) Illinois should be barred from
proceeding in the Supreme Court because the three year old
Federal Water Pollution Control Act conference provided an
adequate administrative remedy. County Sewerage Commis-
sion Brief, at 8-9. (2) The Secretary of Interior had initiated
abatement action and Milwaukee was under state agency
abatement orders. Jd. at 4. (3) The Court should bar judicial
action and invoke the doctrine of primary jurisdiction. Jd. at 9.
(4) Illinois should be required to exhaust its administrative
remedy before going to Court. Jd. at 9. (5) The only judicial
remedy available against Milwaukee was judicial review of the
Secretary’s actions in an action under the Administrative Proce-
dure Act. City Sewerage Commission Brief, at 6.

On April 24, 1972, this Court rendered its decision in
Illinois v. Milwaukee, 406 U.S. 91. The Court rejected sub
silentio Milwaukee’s claims of exhaustion of administrative
remedies and primary jurisdiction, and declared that an inter-
stitial federal common law was available as a supplemental
judge-made remedy to effectuate the Congressional purpose in
the Federal Water Pollution Control Act and related federal
statutes dealing with water quality. (See discussion, 32-45
infra).

13

C. The Procedural History Of This Case
1. The Complaint

Immediately after this Court’s 1972 decision, Illinois filed a
complaint against Milwaukee in the United States District
Court for the Northern District of Illinois. The complaint had
three separate counts, each setting forth a different substantive
right. Two counts had the source of the right asserted in state
law as articulated in Ohio v. Wyandotte Chemicals Corp., and
one count was based on the interstitial federal common law
articulated in Jilinois v. Milwaukee: a) Count I charged Mil-
waukee with the creation of a federal common law nuisance; b)
Count II charged Milwaukee with violation of statutory prohi-
bitions against water pollution contained in the _ Illinois
Environmental Protection Act, Ill. Rev. Stat., ch. 111%, § 1001
et seq.; and c) Count III charged Milwaukee with the creation
of a common law nuisance under Illinois law.

2. Milwaukee’s Pre-Trial Maneuvers

For four years, Milwaukee desperately tried to avoid trial
by a virtual blizzard of procedural and substantive arguments
(JA 1-9).

Milwaukee moved to dismiss for lack of in personam
jurisdiction and improper venue.

Coupled with this motion was the claim that Milwaukee
should be permitted to discharge raw sewage because the
discharge of raw sewage had been an accepted practice in the
United States for 200 years.

Milwaukee also asked that the complaint be dismissed and
that Illinois be required to take its complaint to the Great Lakes
Basin Commission.

With the passage of the 1972 amendments to the Federal
Water Pollution Control Act, Milwaukee moved to dismiss the
complaint on the ground that the 1972 amendments preempted
the federal common law of nuisance.

14

In May 1976, after a trial date had been set, Milwaukee
moved: a) to declare the action a class action with all polluters
of Lake Michigan as a class; b) to join all pollution sources of
Lake Michigan; and c) to declare the case a complex case and
postpone the trial.

Again in May 1976 Milwaukee filed another motion to
dismiss arguing that the permits issued by Wisconsin pursuant
to the 1972 FWPCA amendments preempted this action.

In July 1976, Milwaukee again filed a motion to postpone
trial date.

In late 1976, shortly before the scheduled trial date,
Milwaukee filed a mandamus petition with the United States
Court of Appeals asking that the trial be postponed.

Milwaukee’s approach to these procedural arguments is
illustrated by a pre-trial memorandum written by Milwaukee
trial counsel during late 1976, when trial was rapidly approach-
ing:

“It is important to stress at the outset that the practical

chance of obtaining any form of pretrial appellate relief

even simply in terms of additional trial delay is extremely
slim. Nonetheless, if we can afford to devote the necessary
manpower, an aggressive appellate program combined with

a further motion program before the District Court may

spread more thinly the time our opposition lawyers can

devote to trial preparation and wear down their energies in
this matter a bit.”

(Ill. App. 104a) (emphasis added )

* * x

There is also no discussion here of the possibility of drafting
up a raft load of third-party complaints and seeking leave of
the District Court pursuant to Rule 14, Federal Rules of
Civil Procedure, for service of same upon other polluters of
the lake and of the Milwaukee River.

(Ill.App. 113a) (emphasis added )

* * *

15

... If it is felt we can spare the time, it would appear that
an aggressive pretrial mandamus and appellate program
would at least have the positive effect of forcing our
opposition to fight the battle on many fronts and thus,
perhaps, diluting their efforts a bit. Certainly, it is hard to
see what we would lose by such an approach.

(Ill. App. 113a) (emphasis added )

Only when the mandamus petition and all of the other
procedural maneuvers were finally put to rest was Milwaukee
forced to trial.

3. The Evidence at Trial

As two courts have held after exhaustive reviews of the
exhibits and testimony, the evidence of Milwaukee’s pollution
of Illinois waters of Lake Michigan was overwhelming. Both
extensive test data and the testimony of scientists—including
admissions by defendants’ own witnesses—established the fol-
lowing points.

Milwaukee, through overflow devices in its separate sani-
tary sewer area and its Combined Sewer Area discharges
enormous amounts of raw sewage into Lake Michigan. Addi-
tionally, defendants’ overloaded treatment plants also dis-
charge huge quantities of improperly treated sewage into Lake
Michigan (Pet. App. B-2—B-10). These raw and inadequately
treated fecal wastes contain billions of pathogenic bacteria and
viruses (Pet. App. B-8).

These fecal wastes—and the bacteria and pathogens with-
in them—are periodically transported by prevailing shore-
parallel currents into the Illinois waters of Lake Michigan.
Defendants’ own tests of current speeds, direction and per-
sistence confirm this fact, and defendants have admitted that
Milwaukee’s pollution discharges reach Illinois waters (Pet.
App. B-10—B-17).

Defendants’ own tests as well as their experts’ own admis-
sions establish that low dilution of these substances occurs and
that hazardous concentration of these pathogens still remain
when they reach Illinois waters (Pet. App. B-18—B-19).

16

Contrary to Milwaukee’s claims, there is direct evidence of
fecal contamination at Illinois beaches directly south of the
Wisconsin line (Pl. Ex. 172, 173; Pet. App. B-19—B-22).

Contrary to Milwaukee’s claims, there is direct evidence of
enteric diseases being suffered by [Illinois citizens; diseases
which are necessarily caused by fecal-oral transmission (Df. Ex.
83; TR. 2217, 13228).

In addition to the public health concerns, Milwaukee
sewage contains large amounts of phosphorus—a critical nutri-
ent for the growth of plant life in Lake Michigan. From its
treatment plants alone, Milwaukee discharges over one million
pounds of phosphorus a year—50% of the sewage load of
phosphorus discharged into all of Lake Michigan (TR. 12929).
No one can estimate how much more phosphorus comes from
the raw sewage overflows. Nutrients, particularly phosphorus,
dramatically accelerate the eutrophication problems of the
Lake. Communities along the entire lakeshore now experience
taste and odor problems caused by algae in the water they get
from Lake Michigan (TR. 13530). This increasing eu-
trophication also poses a hazard to fish spawning grounds (TR.
12727).

In response to Milwaukee’s attempts to disparage the trial
judge and to take out of context isolated portions of his
findings, Illinois directs the Court to the following sources of
evidentiary analysis: (1) the entire District Court findings of
fact (Pet. App. F-1—F-30); (2) the incredibly detailed review
of the evidence by the Court of Appeals. (Pet. App. A-26—A-
40, B-1--B-32); (3) the Supplemental Memorandum of the
State of Illinois filed pursuant to the Order of the Court of
Appeals of May 26, 1978 (JA 118-196, 331-349).

4. The Judgment of the District Court on Liability

After hearing months of testimony and reviewing hundreds
of exhibits, the District Court entered judgment on all counts of
Illinois’ complaint, finding that defendants’ discharges con-
stituted: (a) a federal common law nuisaice; (b) a violation of

17

the Illinois Environmental Protection Act; and (c) a common
law nuisance under Illinois state law. (Pet. App. F-24, see also
Pet. App. F-2).

5. The Remedy Ordered by the District Court

Having found liability, the District Court entered a judg-
ment order designed to abate the nuisance. The District Court’s
remedy with respect to the elimination of Chease-causing
organisms® was in two parts:

a. Collection. The District Court ordered that the raw
sewage be collected for treatment instead of being discharged
raw into Lake Michigan.

(i) The Separated Sewer Area. Approximately 95% of the
420 square mile sewer collection systems in Metropolitan
Milwaukee is a so-called “separated” system. Only 5% of the
area is served by combined sewers—the so-called “CSO” area.
In the Separated Sewer system, the sanitary sewage by design is
carried to the treatment plant for treatment and separate storm
sewers carry off storm water from roofs, yards, and streets to
public waters. In Milwaukee, the sanitary sewer collection
system in this separated area has become severely overloaded.

Not the least cause of these hydraulic overloads was
defendants’ conscious practice of building larger diameter
sewers in outlying areas which were connected to smaller
diameter sewers leading to the treatment plant—resulting in
more sewage flow than the pipe can handle (TR. 139-140, 333-
334).

In the 1950’s Milwaukee began to build overflow devices
in the Separated Sewer Area to allow these increasing fecal

8 To abate the eutrophication nuisance, the District Court or-
dered an effluent limitation /ess than 1 mg/1 phosphorus which would
be “the inevitable consequence of the type of advanced treatment”
being ordered to destroy disease bearing organisms (Pet. App. F-26).

18

loads into local streams and into Lake Michigan (TR. 131).9 At
the present time, Milwaukee (the City Sewerage Commission )
maintains 50 of these overflow devices in the interceptor sewer
system for the separated area (TR. 134), and the City of
Milwaukee maintains 78 overflow devices in the separated area
on the local sanitary collector sewers.

As to the Separated Sewer Area, the Judgment Order
entered by the District Court and the permit requirements
issued by the State of Wisconsin are identical to Illinois
Requirements—elimination of the overflows (JA 358, 379, 416,
438; Ill. App. 57a, 79a).19 The only real difference is that the
state permit has no effective enforceable deadline, whereas the
Judgment Order entered by the District Court has a specific
deadline— 1986.

(ii) Combined Sewer Area (CSO). As to the portions of
the sewer area containing combined sewers (CSO), the Judg-
ment Order provides that Milwaukee collect, store and treat the
sewage from the CSO (JA 358-359). The District Court did not
select or dictate the method or the time schedule for achieving
collection of sewage (Pet. App. F-26). The evidence had
established several alternatives for effective collection, in-
cluding:

1. Sewer separation, e.g., taking the storm drain-
age—intentional or unintentional—out of the combined sewer
and leaving an adequate sanitary sewer to carry the sewage to
the plants."

8Contrary to Milwaukee’s unsupported claim that overflows
from such a system are largely “storm water runoff”, fecal coliform
counts in the sewage discharged from Milwaukee’s sewage system
overflows have been recorded as high as 23 million per 100 milliliter
(Pet. App. B-9). The effluent limit for supposedly safe levels of fecal
coliform is 200 per 100 ml.

10 Within the context of the Amended Judgment Order, “elimi-
nate” means to treat the sewage to the level of secondary treatment
(30/30) with disinfection.

1A generalization is often made that sewer separation is too
expensive even though it is the surest way to provide environmental
protection. Ironically, here Milwaukee studies have shown that
separation compares favorably in cost to other systems.

19

2. Collection, Storage, Treatment (CST). Rather than
separate the storm drainage from the sanitary waste, the design
here is to collect the mixture of storm water and sewage, store
it, and then gradually pump the stored wastes for treatment.

Milwaukee—not the District Court—then proceeded to
select a collection, storage, and treatment (CST) system as the
basis of collection. The Judgment Order of which Milwaukee
now complains was prepared by Milwaukee lawyers and
engineers (with plaintiffs’ participation) and submitted to the
District Court for approval on November 14, 1977. The
Judgment Order expressly provides for modification if there is a
lower cost, equally effective alternative (JA 360).

Milwaukee also selected the timetable for collection and
correction of raw sewage CSO overflows. This timetable calls
for a staged program of overflow correction which will be
completed by 1989. Having negotiated the timetable with
plaintiffs, having stipulated as to the feasibility of the timetable
(Pet. App. E-2) and having submitted the timetable to the
District Court, Milwaukee can hardly complain about the
timetable. The Judgment Order’s 1989 deadline should be
compared to the open ended deadline in the Dane County
stipulation which extends into the year 2020.

b. Treatment. The District Court then ordered that all of
the raw sewage—once collected—be treated to destroy the
disease-causing organisi.is in the sewage. The level of treat-
ment ordered by the District Court is not at issue in Mil-
waukee’s Petition. The appellate court reversed the District
Court’s treatment order on the extra-record and erroneous
factual assumption that “secondary” treatment—established as
minimum treatment by the Clean Water Act, 33 U.S.C. §§ 1251
et seq.—would destroy viruses. This assumption has no factual
support in the record and indeed is contradicted by evidence in
the record. Appellate courts cannot make factual conclusions
which have not been the subject of evidentiary proof in the trial
court and which cannot be judically noticed. Borden Farm

20

Products v. Baldwin, 239 U.S. 194, 208-209 (1934). The
appellate court’s action is the subject of Illinois’ pending
Petition for a Writ of Certiorari, No. 79-571.

6. The Decision of the Court of Appeals

The Court of Appeals conducted an intensive independent
review of the facts and affirmed the District Court both as to
liability and the remedy ordered for sewage collection. (Pet.
App. A-1—A-48, B-1—B-32).

SUMMARY OF ARGUMENT

This case is hopefully the final stage in an incredible 13
year Odyssey by the State of Illinois to abate the gross
discharges of raw and improperly treated sewage by Milwaukee
into the Illinois waters of Lake Michigan. However, the
decision in this case will have major impacts far beyond the
prevention of water pollution. The Court’s decision in this case
necessarily involves several major constitutional and statutory
issues which affect all suits between a State and a citizen of
another State.

A. Legal And Constitutional Framework For Il-
linois’ Claims

This Court cannot properly evaluate the arguments raised
by Milwaukee without a thorough examination of the subject
matter jurisdiction, choice of law and supremacy questions
created under the Constitution and Judicial Code when a State
sues a citizen of another State. Directly involved in this case are
the constitutional choice of law principles mandated by Erie v.
Tompkins, supra, as articulated in the constitutional choice of
forum analysis in Ohio v. Wyandotte Chemicals Corp., supra.

Though the subject of this suit is sewage contamination,
the constitutional choice of law and choice of forum questions
raised here apply to all suits by a State against a citizen of
another State, whether the subject of the dispute is taxes, labor,

21

contracts or any of dozens of other disputes. Under Article III
and the Judicial Code, the following constitutional mandates
apply to this case:

1. Under the Constitution, a State cannot be compelled to
bring its complaint against a citizen of another State in that
citizen’s state courts. Wisconsin v. Pelican Insurance Co., 127
U.S. 265, 289 (1888); Chisholm v. Georgia, 2 Dall. 419 (1793);
Ohio v. Wyandotte Chemicals Corp., supra, 401 U.S. at 500.
Consequently, Illinois cannot be compelled to subject itself to
the control of Wisconsin courts or agencies. Absent federal
question jurisdiction, the only constitutionally permissible fo-
rum is either the Supreme Court or the courts of the com-
plaining State.

2. Under the mandate of Erie v. Tompkins, in suits by a
State against a citizen of another State, the law applied must be
the law which is the source of the right asserted. If the right
asserted has its source in federal law the court—be it state or
federal—must apply federal law. Conversely, if the right
asserted is based on state law the court—be it state or feder-
al—must apply state law.

3. Interstitial federal common law—judge-made law
intended to fulfill a Congressional purpose behind a statutory
program—can only oust concurrent state law if Congress
expressly intends such an ouster. Here, rather than evidence an
intent to oust state law, Congress has expressed its desire that
state statutory and common law be preserved. Consequently,
Illinois’ claims on state statutory and common law cannot be
ousted by interstitial federal common law based on these same
statutes.

4. In addition to declaring its express intent to preserve
state statutory and common law, Congress has been expressly
informed of this Court’s decisions declaring interstitial federal
common law, e.g., Washington v. General Motors Corp., supra,
(post 1970 Amendments to the Clean Air Act); Vermont v. New
York, supra, (post 1972 Amendments to the FWPCA). More-

22

over, Congress has been expressly informed of lower court
decisions interpreting Congressional intent in the 1972 Amend-
ments to the FWPCA as preserving the interstitial federal
common law articulated by Justice Douglas.

5. The District Court properly held that federal law
governed the federal common law count of Illinois’ complaint
and that state law governs the state statutory and state common
law claims in Counts II and III. The District Judge’s decision
was mandated by the constitutional choice of law mandate set
forth in Erie, the constitutional limits on judicial power to oust
state law by the operation of interstitial federal common law,
and the unequivocal intent of Congress to preserve state
statutory and state common law remedies.

B. The Evidence To Support The Decision On
Liability

Both the District Court and the appellate court found clear
and convincing evidence of Milwaukee’s liability (Pet. App. F-
15, F-23, A-27). The appellate court’s exhaustive analysis of
the evidence is contained at pages B-2 and B-27 of the
Petitioner’s Appendix.

Given the detailed findings by the District Court, the
detailed analysis of the testimony and evidence by the Court of
Appeals, the “two-court” rule applied in Berenyi v. District
Director, Immigration & Naturalization Service, 385 U.S. 630,
636 (1967) and Graver Tank & Manufacturing Co. v. Linde Air
Products, 336 U.S. 271, 275 (1949), should be applied here.

This Court “cannot undertake to review concurrent find-
ings of fact by two courts below in the absence of a very
obvious and exceptional showing of error”. Graver Tank &
Manufacturing Co. v. Linde Air Products Co., supra, 336 U.S. at
275.

C. Milwaukee’s Arguments

1. Compliance with Wisconsin abatement orders. The
District Court’s order provides both specific substantive abate-
ment obligations plus clear, reasonable deadlines for com-

23

pliance. In contrast, Wisconsin’s abatement requirements con-
tinue the problems which have plagued Illinois since 1967: ill-
defined, unenforceable substantive obligations and open-ended
deadlines for compliance. Moreover, contrary to Milwaukee’s
arguments, the District Court’s order is wholly consistent with
the federal act requirements.

a. Separated Sewers. What Milwaukee does not tell the
Court is that 95% of Milwaukee’s sewers are separate sewers-
—not combined sewers—and that all the governmental
agencies involved say that these separate sewers overflows
should be eliminated and the sewage wastes conveyed to
treatment. Unfortunately, Wisconsin has no enforceable dead-
line for such obligations.

b. Combined Sewers. As to combined sewers, all the
governmental agencies involved and the statute say that such
overflows must have water quality based effluent limitations
under § 301(b)(1)(C), § 303(d), and § 303(c) of the Act
which insure—with a “margin of safety”—that Lake Michigan
water quality standards be achieved and not violated.

Wisconsin has failed to impose any effluent limitations on
combined sewer overflows under §303(d) and
§ 301(b)(1)(C) to achieve compliance with Lake Michigan
water quality standards. Indeed, there are no efflucnt limita-
tions at all on any of the combined sewer overflows imposed by
Wisconsin. Moreover, any vague control that may be imposed
need not be installed until the year 2025 or later.

Fortunately, Illinois cannot be barred from relief by
Wisconsin’s ill-defined open-ended abatement orders. The law
is absolutely clear that compliance with a permit is not a
defense to actions for common law nuisance. This doctrine is
followed not only in Illinois and many other jurisdictions but is
the explicit rule followed in Wisconsin.

2. Cost-Effectiveness. As to combined sewers, Milwaukee
and the other sewage agencies want this Court to be their foil in
a major game of legislative manipulation. Right now § 303(c)

24

and § 301(b)(1)(C) of the Act require all point sources to
meet effluent limitations necessary to prevent violation of water
quality standards. “Cost-effective” as used in the Act—
§ 212—is clearly defined now in the EPA regulations as the
least-cost way to achieve water quality based effluent limita-
tions. (§ 301(b)(1)(C)). Violations of water quality stan-
dards are illegal.

Milwaukee wants this Court to reinterpret “cost-effective”
to give this Court’s permission to eliminate ‘water quality
standards violations which are not “cost-justified” or cost-
effective as Milwaukee uses the term. Having failed to get
Congress to weaken § 303(c) and § 301(b)(1)(C), Milwaukee
wants this Court to fashion judicial legislation to overturn these
statutory obligations.

3. In personam jurisdiction. A District Court’s jurisdiction
over the person of a nonresident defendant is dependent upon
the extra-territorial service statute of the forum state. Fed. R.
Civ. P. 4(e). In this case the Illinois “long arm” statute, Ill.
Rev. Stat., ch. 110, §§ 16 and 17, control. Section 17, which
lists the actions of a defendant by which it submits to the
jurisdiction of an Illinois court, includes “‘[t]he commission of a
tortious act within Illinois.”

The Illinois Supreme Court has repeatedly held that the
Illinois long arm statute reflects a conscious legislative purpose
to assert jurisdiction over nonresident defendants to the extent
permitted by the due process clause, and that Section 17
reaches nonresident defendants who commit acts in other states
which result in injury in Illinois.

In the face of these unequivocal constructions of the Illinois
statute by the highest court in the State—and the findings
below that “[e]ach year defendants pump into Lake Michigan
millions of gallons of pathogen-containing sewage, which the
District Court found is sometimes carried into Illinois water and
presents a substantial threat of harm to Illinois residents” ( Pet.

25

App. A-5)—there is no basis whatsoever for Milwaukee’s
contentions that: 1) its discharge of raw sewage and disease-
causing organisms into Illinois waters does not constitute com-
mission of a tortious act in Illinois and; 2) its discharge of
contaminants into Illinois waters does not constitute a sufficient
“‘minimal contact” with Illinois to support in personam jurisdic-
tion.

4. Venue. In this case, venue is governed by 28 U.S.C.
§ 1391(b), the general venue statute governing transitory ac-
tions in federal courts where jurisdiction does not depend on
diversity of citizenship. Section 1391(b) permits suit in either
the “‘judicial district where all defendants reside, or in which the
claim arose....” Under federal law there is no question but
that Illinois’ “claim arose” within the Northern District of
Illinois, and venue was proper.

This Court should affirm the District Court, as affirmed by
the Seventh Circuit Court of Appeals, with respect to the issues
raised in Milwaukee’s Petition.

26

ARGUMENT
I

UNDER THE CONSTITUTION ILLINOIS CANNOT BE
COMPELLED TO LITIGATE ITS CLAIM AGAINST
MILWAUKEE IN THE STATE COURTS OF WISCON-
SIN

A good deal of Milwaukee’s confusion in this case lies in its
disregard of the constitutional protections given the States when
they joined the Union. Contrary to Milwaukee’s argument,
Illinois cannot be forced to litigate its claim in either Wisconsin
state courts or Wisconsin state agencies. Under both the
Constitution and the Judicial Code the only forums where an
aggrieved State can be constitutionally compelled to litigate its
claim against a citizen of another State are courts of the
complaining State and Article III federal courts. Moreover,
absent federal question jurisdiction under 28 U.S.C. § 1331 or
some other specific grant of lower federal court jurisdiction, the
only Article III federal court available is the Supreme Court.

A. This Is A Suit By A State Against A Citizen Of
Another State

Article III, § 2, cl. 1 of the Constitution creates judicial
power to decide controversies “between a State and Citizens of
another State” and between “citizens of different States”.
Article III, § 2, cl. 2 confers original jurisdiction on the Supreme
Court for cases in which a State is a party. Finally, the
Judiciary Act of 1789, as currently reflected in the Judicial
Code, states that the Supreme Court shall have original but not
exclusive jurisdiction of all actions or proceedings by a State
against the citizens of another State. 28 U.S.C. § 1251(b)(3).

As to suits between citizens of different States, the Judiciary
Act of 1789—as currently reflected in the Judicial Code—states
that the federal district courts shall have original jurisdiction of
all civil actions between citizens of different States. 28 U.S.C.
§ 1332.

Kee»

27

The overall reason for both jurisdictional grants was the
same—to prevent prejudice to litigants from presumably biased
local courts. ‘“‘Without doubt the underlying considerations
were akin to those which prompted the diversity clause...”
Hart & Weschsler, The Federal Courts and the Federal System
18 (2d Ed. 1973). However, in actual implementation, the
Judiciary Act of 1789 treated the two constitutional grants
differently in allocating subject matter jurisdiction.

There are two reasons for the differences in the
jurisdictional grants. First, absent a federal question, the only
federal forum for a suit by a State against a citizen of another
State is the Supreme Court. The prestige and dignity of a suing
State was deemed entitled to invoke a federal forum of equal
prestige. The Federalist No. 8] (A. Hamilton) 548 (Cooke Ed.
1961). Consequently there was no need to provide a lower
federal tribunal. Second, subject matter jurisdiction of a
complaint by a State against a citizen of another State was not
granted exclusively to the federal Supreme Court because the
framers of the Constitution clearly anticipated an aggrieved
State suing a citizen of another State in the complaining State’s
courts. Plaquemines Tropical Fruit Co. v. Henderson, 170 US.
511 (1898); Germania Insurance Co. v. Wisconsin, 119 U.S.
473, 475 (1886).

One of the key elements of this constitutional allocation of
judicial power was that the complaining State could not be
compelled to have its complaints tried in the State courts of the
nonresident defendant. Wisconsin v. Pelican Insurance Co.,
127 U.S. 265, 289 (1888); Chisholm v. Georgia, 2 Dall. 419,
475-476 (1793). Justice Harlan restated this principle in Ohio
v. Wyandotte, supra:

“Two principles seem primarily to have underlain
conferring upon this court original jurisdiction over cases
and controversies between a State and citizens of another
State or country. The first was the belief that no State
should be compelled to resort to the tribunals of other States

28

for redress since parochial factors might often lead to the
appearance, if not the reality, of partiality to one’s own.
Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wiscon-
sin v. Pelican Ins. Co., 127 U.S. at 289.”

401 U.S. at 500 (emphasis added )

Applying these principles to this dispute between Illinois
and a citizen of Wisconsin, the Constitution is absolutely clear
that neither the federal Judiciary nor Congress can compel
Illinois to adjudicate its claims in the state courts of Wisconsin.
A fortiori, Illinois cannot constitutionally be compelled to
submit these claims to the administrative agencies of the State
of Wisconsin. 12

B. This Is Not A Suit By A State Against Another
State

It is critical to emphasize that this Court has expressly held
that this is not a suit between a State and another State. Jilinois
v. Milwaukee, supra, 406 U.S. at 98. This distinction—between
a suit by one state sovereign against another state sovereign
(with exclusive original jurisdiction in the Supreme Court) as
distinguished from a suit by a State against a citizen of another
State (with alternative jurisdiction in the Supreme Court or the
plaintiff State’s courts) has major significance in the con-
stitutional rules governing choice of law (see discussion, infra).

C. This Court’s Dilemma Really Centers On The
Search For An Alternative Forum

In both Ohio v. Wyandotte and Illinois v. Milwaukee, the
main focus of this Court’s concern was the need to find an
alternative forum. As Justice Harlan made clear in Qhio v.
Wyandotte, there are literally hordes of cases where States and
citizens of other States come into conflict, including disputes
over “taxes, motor vehicles, decedents’ estates, business torts,
government contracts, and so forth.” 401 U.S. at 497.

12 Indeed, sub silentio the Court’s 1972 decision in this case
rejected Milwaukee’s argument that Wisconsin state courts and
Wisconsin administrative agencies could determine this controversy.

29

He then went on to observe that there were two reasons
why, under the constitutional framework, disputes between a
State and a citizen of another State had to come before the
Supreme Court:

“The first was the belief that no State should be
compelled to resort to the tribunals of other States for
redress, since parochial factors might often lead to the
appearance, if not the reality, of partiality to one’s own.
Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wiscon-
sin v. Pelican Ins. Co., 127 U.S., at 289. The second was
that a State, needing an alternative forum, of necessity had
to resort to this Court in order to obtain a tribunal
competent fo exercise jurisdiction over the acts of non-
residents of the aggrieved State.”

Id. at 500 (emphasis added )

It is this second in personam jurisdiction limitation which
was driving cases to the Supreme Court. The Constitution had
been drafted when the physical power principles of Pennoyer v.
Neff, 95 U.S. 714 (1878), dominated concepts of in personam
jurisdiction. But as Justice Harlan noted, just as there had been
growth in the multitude of disputes between States and citizens
of other States, concepts of in personam jurisdiction had
expanded to permit complaining States to sue in their own
courts. 401 U.S. at 497, 500.

It was this finding of the alternative forum which allowed
the Court to avoid the burden of an original action in the
Supreme Court while still fulfilling its constitutional duty under
Article III:

“‘Thus, at this stage we go no further than to hold that,
as a general matter, we may decline to entertain a com-
plaint brought by a State against the citizens of another
State or country only where we can say with assurance that
(1) declination of jurisdiction would not disserve any of
the principal policies underlying the Article III jurisdiction-
ai grant.”

Id. at 499

30

Illinois believes that this Court’s approach in Wyandotte
was correct. Given the thousands of disputes arising between
States and citizens of other States over a huge range of
substantive matters, the Court has the following options:

1. It can hear the cases by means of a master. This the
Court is constitutionally obliged to do if there is no con-
stitutionally acceptable alternative forum.

2. It can reaffirm the in personam principles set forth in
Ohio v. Wyandotte. This would leave the bulk of the actions in
the state courts where they can be properly resolved without
burdening this Court.

3. It can continue to fashion substantive interstitial federal
common law rights, as in J/linois v. Milwaukee, in order to find
an alternative lower court federal forum.

Il.

CHOICE OF LAW—UNDER THE CONSTITUTION THE
LAW TO BE APPLIED IN DETERMINING CLAIMS OF
SUBSTANTIVE RIGHT IS THE LAW WHICH IS THE
SOURCE OF THE SUBSTANTIVE RIGHT

The substantive law to be applied to a claim is determined
not by the forum the parties find themselves in—but by the
source of the law. If the source of the law is state law, the court,
be it federal or state, must under Erie R. Co. v. Tompkins, 304
U.S. 64 (1938), apply state law. If the source of the law is
federal, the court must apply federal law. Where, as here, the
State has brought separate claims based on federal law and
state law, federal law dictates the right to recover under the
claim which has its source in federal law. However, state law
dictates the right to recover on the state law claims in counts II
and III.

This mandate is found in both the basic concepts of
federalism and the constitutional limitations on the power of
federal courts to make their own law as embodied Erie R. Co.

31

v. Tompkins and the Rules of Decision Act, 28 U.S.C. § 1652.
See Guaranty Trust Co. v. York, 326 U.S. 99, 112 (1945).

This statutory and constitutional mandate has repeatedly
been recognized by courts and commentators:

“ce

. there are several reasons for applying state law in
original suits by a state against a citizen of another state.
Although a state has been held “not to be a citizen of
itself’ for purposes of diversity jurisdiction in the federal
trial courts, the situation is analogous to ordinary diversity
suits. This analogy supports the application of section
1652 of the Judicial Code, the statute construed in the Erie
case, and the application of this statute would also avoid
the constitutional problems suggested by the Erie decision.

The policy grounds for the Erie doctrine would also
seem to apply to suits between a state and citizens of a
sister state under the original jurisdiction. Since these suits
may also be brought in a state court, the Supreme Court
would be promoting uniformity and limiting “forum shop-
ping” as between the state courts and the Supreme Court if
Erie were applied.”'3

Note, The Original Jurisdiction of the United
States Supreme Court, 11 Stan. L.Rev. 665, 684-
85 (1959) (emphasis added )

Justice Harlan applied the Erie mandate in Ohio v. Wyan-
dotte and stated that Erie would require the application of state
law to Ohio’s claim based on Ohio nuisance law even if there
were subject matter jurisdiction in the federal district court. 401
USS. at 498 n.3.

13 Technically the statement that “state” law should apply is in
error. While it is correct that Erie would apply to such suits, the Erie
rule requires application of the law which is the source of the right
asserted. Thus where the State is seeking to enforce a right based on
federal law, federal law governs. Where the source of the right is state
law, state law governs. See, Maternally Yours, Inc. v. Your Maternity
Shop, Inc., 234 F.2d 538, 540-41 & n.1 (2d Cir. 1956).

32

Ill

JUDICIAL DECLARATION OF A FEDERAL COMMON
LAW RIGHT AS AN INTERSTITIAL REMEDY TO
EFFECTUATE A CONGRESSIONAL PURPOSE CAN-
NOT OUST STATE LEGISLATURES AND COURTS OF
THEIR LAW-MAKING POWER UNLESS CONGRESS
CLEARLY INTENDS STATE LAW TO BE OUSTED

Federal courts have a necessary constitutional function to
effectuate the congressional purpose reflected in statutes by
providing interstitial remedies which are characterized as “‘fed-
eral’ common law. However, the federal courts’ power to
preempt or oust state law from concurrently addressing the
same problem area is only as extensive as the congressional
intent to oust state law. Where Congress has expressly and
repeatedly stated its desire to preserve state statutory and
common law remedies, federal courts cannot—in the guise of
creating interstitial federal common law and under the author-
ity of those same congressional enactments—judicially oust
state statutory and common law.

A. The Source of the Federal Common Law of Nuisance
Articulated by This Court Was “Interstitial” Federal
Common Law

One of the key inquiries here is the source of the federal
common law articulated by Justice Douglas in Illinois v.
Milwaukee. Clearly the Court was creating what has been
called “interstitial” federal common law. As explained by
Professor Mishkin:

“At the very least, effective Constitutionalism requires
recognition of power in the federal courts to declare, as a
matter of common law or “judicial legislation,” rules which
may be necessary to fill in interstitially or otherwise effec-
tuate the statutory patterns enacted in the large by Congress.
In other words, it must mean recognition of federal judicial
competence to declare the governing law in an area
comprising issues substantially related to an established
program of government operation.”

33

Mishkin, The Variousness of “Federal Law”:
Competence and Discretion in the Choice of Na-
tional and State Rules for Decision, 105 VU. Pa. L.
Rev. 797, 800 (1957) (emphasis added )

There are numerous examples of this Court’s exercise of
such interstitial power by declaring a federal remedy or right.
Where Congress had failed to specifically address the particular
problem before the Court, the Court fashioned a judge-made
remedy to effectuate a perceived congressional purpose. Board
of Commissioners of Jackson County v. United States, 308 U.S.
343 (1939); Deitrick v. Greaney, 309 U.S. 190 (1940);
D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942);
Clearfield Trust Co. v. United States, 318 U.S. 363 (1943).

Perhaps the broadest assertion of such interstitial power
was in Textile Workers Union of America v. Lincoln Mills, 353
U.S. 448 (1957). Lincoln Mills and the authority upon which it
rests are based on express determinations by the Supreme Court
that development of such federal common law remedies was
contemplated by Congress as an interstitial remedy as part of its
legislative grant of authority. 353 U.S. at 455

In Illinois v. Milwaukee, Justice Douglas followed the same
pattern in finding an interstitial federal common law based on
the then existing federal statutes dealing with water quality. He
began by citing the broad range of federal statutes dealing with
interstate waters. 406 U.S. at 101-02. He then turned to the
delineation of the federal common law remedy within this
multitude of federal statutes, including the Federal Water
Pollution Control Act:

“The remedy sought by Illinois is not within the
precise scope of remedies prescribed by Congress. Yet the

remedies which Congress provides are not necessarily the
only federal remedies available.”

406 U.S. at 103 (emphasis added )

Justice Douglas then cited as authority this Court’s decision in
Lincoln Mills:

34

“It is not uncommon for federal courts to fashion federal
law where federal rights are concerned. Textile Workers v.
Lincoln Mills, 353 U.S. 448, 457.”

Id.

Thus the Court was clearly basing its articulation of federal
common law on the same kind of interstitial common law
development based on a statutory scheme which had been used
in Board of Commissioners, supra, Dietrick, supra, and
D’Oench, supra.

B. Federal Interstitial Common Law Cannot Oust Con-
current State Statutory and State Common Law
Unless the Statutory Scheme on Which the Inter-
stitial Federal Common Law is Based Demonstrates
A Clear Intent To Oust State Law.

While Board of Commissioners, D’Oench, Deitrick and
similar decisions clearly establish the principle that federal
courts can establish an interstitial federal common law and hold
that federal, not state, law determines the extent of the federal
right—such cases do not deal with the question of whether
interstitial federal law preempts (i.e. ousts) concurrent state
statutory and common law from protecting state law rights.
The only cases dealing with ouster of state law by federal
common law have found express evidence of congressional
intent to Oust concurrent state activity.

In Local 174, Teamsters v. Lucas Flour Co., 369 U.S. 95
(1962), the Court did hold that the federal common law
announced in Lincoln Mills preempted state law, but only after
finding that it would be impossible for the two schemes to co-
exist. The Court therefore concluded that Congress must have
intended to preempt local law:

“W]e cannot but conclude that in enacting § 301 Con-

gress intended doctrines of federal labor law uniformly to
prevail over inconsistent local rules.”

369 U.S. at 104 (emphasis added )

35

In a related area this Court has emphasized that the
question of ouster of state statute and common law is a question
best left to Congress and not the courts. Miree v. DeKalb
County, Georgia, 433 U.S. 25, 32 (1977); Wallis v. Pan
American Petroleum Corp., 384 U.S. 63, 68 (1966).

Professor Paul Mishkin, a long time advocate of federal
judicial power to formulate interstitial federal common law, has
voiced constitutional concerns about judicial ouster of state law
without express congressional intent:

“TI maintain that the Constitution bears not only on con-

gressional power but also imposes a distinctive, independ-

ently significant limit on the authority of the federal courts
to displace state law.

* * *

That Congress may have constitutional power to make
federal law displacing state substantive policy does not
imply an equal range of power for federal judges. Prin-
ciples related to the separation of powers impose an
additional limit on the authority of federal courts to engage
in lawmaking on their own (unauthorized by Congress ).”

Mishkin, Some Further Last Words on Erie—The
Thread, 87 Harv. L.Rev. 1682, 1683 (1974)
(emphasis in original )
C. The Constitutional Mandate Of Erie That State Law
Govern The Determination Of Rights With Their
Source in State Law Is Consistent With The Court’s
Decision In Illinois vy. Milwaukee
Footnote 5 of Justice Douglas’ opinion in Tilinois v.
Milwaukee cites a lengthy passage from Lincoln Mills that
many argue reflects a preemption of state law. 406 U.S. at 103
n.5. But Lincoln Mills and other interstitial federal common
law cases did not address preemption of state law and are
readily reconciled with the Erie mandate followed in Ohio v.
Wyandotte.
In Lincoln Mills the Court, first having found that the
source of the substantive right being asserted had its basis in
federal law (i.e., the congressional purpose to provide substan-

36

tive legal remedies), then held that “Federal interpretation of
the federal law will govern, not state law.” 353 U.S. at 457
(emphasis addee ).

This basic rule—that federal law, not state law, governs
the interpretation of rights to relief based on substantive federal
law—is dictated by the Supremacy Clause of the Constitution.
However, the constitutional converse is also true. The scope
and meaning of rights based on state substantive law must be
based on state law—not some federal “common” law. This
was the basic holding of Erie v. Tompkins in 1938 and the
counterpart decision of this Court in 1939 in Board of Commis-
sioners of Jackson County v. United States, 308 U.S. 343
(1939).

Board of Commissioners was decided soon after Erie and
illustrates the distinction very well. There the Court undertook
a multi-step analysis. The Court first determined that the right
being asserted had its basis in federal law. 308 U.S. at 349.
The Court then determined that Congress had neglected to
provide a remedy for that right and had left the remedy to
judicial implication. Jd. The Court then applied the corollary
of Erie’s constitutional mandate: “Since the origin of the right
to be enforced is the Treaty, plainly whatever rule we fashion is
ultimately attributable to the Constitution, treaties or statutes of
the United States, and does not owe its authority to the law-
making agencies of Kansas. Cf. Erie R. Co. v. Tompkins, 304
U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.” Jd. at
349-50 (emphasis added).

Having decided that the rule of decision was federal law,
the Court went on to emphasize that nothing in state law could
be used to defeat that federal right. Jd. at 350. This holding
was totally consistent with the Supremacy Clause. However in
the interests of federal/state comity, the Court held that the
local law on payment of interest would be “absorbed” into the
federal law.

‘““With reference to other federal rights, the state law has
been absorbed, as it were, as the governing federal rule not

37

because state law was the source of the right but because
recognition of state interests was not deemed inconsistent
with federal policy.”

Id. at 351-52

The case that clarifies the distinction between choice of law
where the right asserted has its source in federal law and choice
of law when the right asserted has its source in state law is
Guaranty Trust Co. v. York, 326 U.S. 99 (1945):

“‘We put to one side the considerations relevant in
disposing of questions that arise when a federal court is
adjudicating a claim based on a federal law. See, for
instance, Board of Com’rs v. United States, 308 U.S. 343,
60 S.Ct. 285, 84 L.Ed. 313; Deitrick v. Greaney, 309 US.
190, 60 S.Ct. 480, 84 L.Ed. 694; D’Oench, Duhme & Co. v.
F.D.I.C., 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956;
Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct.
573, 87 L.Ed. 838; O’Brien v. Western Union Telegraph
Co., 1 Cir., 113 F.2d 539. Our problem only touches

_ transactions for which rights and obligations are created by
one of the States, and for the assertion of which, in case of
diversity of the citizenship of the parties, Congress has
made a federal court another available forum.”

326 U.S. at 101 (emphasis added )

Against this background, Justice Douglas’ footnote 5 at
406 U.S. at 103 takes on its appropriate meaning. Justice
Douglas had found his source of federal right and federal
concern in the panoply of federal statutes which impacted water
pollution control. 406 U.S. at 101-02. However, since the
federal laws in this area did not give the specific remedy sought
by Illinois, Justice Douglas created a federal “common law”
remedy which filled in the interstices left by the federal statutes
in the area. See Board of Commissioners, supra; Deitrick,
supra; D’Oench, supra.

Since the source of the federal remedial right created as an
interstitial remedy was based on the federal statutes, federal not
state law must govern the interpretation of that right. Board of

38

Commissioners, supra. For the purpose of determining the
outlines of that judge-made federal common law, state law
could be absorbed but was not binding on the determination of
that federal common law right.

Footnote 5 of Illinois v. Milwaukee does not discuss the
law to be applied where as here, claims based on state law are
also presented. The complimentary doctrine of Erie and Board
of Commissioners provide a clear rationale for applying federal
principles and “‘absorbed” state law to the articulation of the
federal right, and for applying state law for decision of the state
right under Erie, Guaranty Trust and Ohio v. Wyandotte.

D. The Law Applied In Suits By One State Against
Another State Does Not Apply To Interstitial Federal
Common Law.

In suits between sovereigns, state law is completely ousted
and federal law must govern. See, e.g., Kansas v. Colorado,
206 U.S. 46 (1907); Connecticut v. Massachusetts, 282 U.S. 660
(1931). Illinois is in complete agreement with that principle
and it is totally consistent with the special exclusive jurisdiction
of the Supreme Court over direct suits between sovereigns. Just
as state courts could not intrude upon the Supreme Court’s
original and exclusive jurisdiction so also the state law of any
State cannot be imposed on the sovereign actions of another
State. Here by definition the only choice of law is federal.

The principles of common law announced in these cases
did not oust or preempt state law. Instead, by the constitutional
definition of a dispute between sovereign States, state law was
constitutionally preempted.

This automatic constitutional preemption of all state law in
disputes directly between States would apply to all state law.
Thus if the disputes were over taxes, contracts, torts, labor
agreements or any other substantive subject matter, the Con-
stitution dictates that in disputes directly between the sovereign
States, the Supreme Court fashion federal law and no state law
can constitutionally apply.

39

This specialized and essential constitutional ouster of state
law in direct disputes between sovereigns is wholly consistent
with Erie v. Tompkins and Ohio v. Wyandotte. Since the
Constitution says federal law must govern to the exclusion of
state law in direct disputes between sovereigns, it was wholly
consistent for the author of Erie to also indicate the same day in
dicta that federal common law governed disputes between the
States. Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
304 U.S. 92 (1938).

But that constitutional ouster has no meaning in suits
between citizens of different States or between a State and a
citizen of another State. Under those circumstances, Erie and
Ohio v. Wyandotte mandate that the court—be it state or
federal—apply the law which is the source of the substantive
right being asserted.

E. Congress Has Not Preempted State Statutory And
Common Law Remedies To Abate Water Pollution

The only remaining question is whether Congress ex-
pressed any intent to oust state law. If Congress intended to
preserve state law, federal interstitial common law—based as it
must be on congressional purpose—cannot constitutionally oust
state law.

1. The Law of Preemption

At the heart of the preemption of state law issue are the
basic principles of federalism calling for the sharing of power
between the States and the national government:

**... we start with the assumption that the historic police
powers of the states will not be superseded by the Federal
Act unless that is the clear and manifest purpose of
Congress.”

Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
230 (1947) ‘
The common sense constitutional roots of this careful
diffusion of power have been described best by Professor Henry
Hart:

40

‘““We could have, in principle, a perfect uniformity of
law in the United States—at a price. We could have it by
establishing a single legislature, a single system of courts, a
single chief executive, and a single phalanx of executive
departments and administrative agencies, each possessing
within its sphere a nation-wide and general jurisdiction.

So Procrustean a solution of the problems of feder-
alism is unlikely to find wide favor. ... Common sense and
the instinct for freedom alike can be counted upon to tell
the American people never to put all their eggs of hope
from governmental problem-solving in one governmental
basket.”

Hart, The Relations Between State and Federal
Law, 54 Colum. L. Rev. 489, 539-540 (1954)

The intent of Congress to preempt state law must be clear.
“...[WJe are not to conclude that Congress legislated the
ouster of this California statute by the marketing orders in the
absence of an unambiguous congressional mandate to that
effect. We search in vain for such a mandate.” Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147 (1963).
Absent such unambiguous intent the Court should not find
preemption of state law. New York State Department of Social
Services v. Dublino, 413 U.S. 405, 415 (1973).

2. Congressional Intent to Preserve State Law

Both the express language and the legislative history of the
Federal Water Pollution Act Amendments of 1972 and 1977
show unmistakable congressional intent to preserve state law
remedies.

Milwaukee has ignored Section 510 of the 1972 Amend-
ments, which expressly allows a State or political subdivision to
impose more stringent requirements:

“State authority—Except as expressly provided in this Act,
nothing in this Act shail (1) preclude or deny the right of
any State or political subdivision thereof or interstate
agency to adopt or enforce (A) any standard or limitation

41

respecting discharges of pollutants, or (b) any requirement
respecting control or abatement of pollution. . .”

33 U.S.C. § 1370 (emphasis added )

With respect to this section, the House Public Works
Committee stated:

“The Committee considers section 510 to be of extreme
importance in assuring the States of the right to adopt or
enforce provisions at least as strict as those established in
this legislation. Thus, the Committee rejected in most
instances suggestions for preemption by the Federal Govern-
ment and preempted the States only where the situation
warranted it based upon the urgent need for uniformity
such as in section 312(f) relating to marine sanitation
devices.”

1 Congressional Research Service, A Legislative
History of the Water Pollution Control Act
Amendments of 1972, 93d Cong. Ist Sess. 823
(1973) (hereinafter cited as “Legislative His-
tory”) (emphasis added )

Since the passage of the 1972 Amendments, the courts
have uniformly recognized the rights of States to require more
stringent requirements than the national standards.'4 Nor did
Congress in any way seek to restrict this right to more stringent
standards in the 1977 Amendments. In the Senate Report on
the 1977 Amendments, the Senate Public Works Committee
states:

14 United States Steel Corp. v. Train, 556 F.2d 822, 839 (7th Cir.
1977); Mianus River Preservation Comm. v. E.P.A., 541 F.2d 899,
906 (2d Cir. 1976); Metropolitan Sanitary District v. United States
Steel Corp., 30 Ill. App. 3d 360, 332 N.E.2d 426, 434 (1975), cert.
denied, 424 U.S. 976 (1976); People ex rel. Scott v. United States
Steel Corp., 40 Ill. App. 3d 607, 352 N.E.2d 225, 229 (1976); United
States ex rel. Scott v. United States Steel Corp., 356 F.Supp. 556, 558-
59 (N.D. Ill. 1973); Illinois v. City of Milwaukee, 366 F.Supp. 298
(N.D. Ill. 1973); Cf. Village of Glencoe v. Metropolitan Sanitary
District, 23 Il. App. 3d 868, 320 N.E.2d 524 (1974).

4

“There is nothing in these new provisions which in any

way preempts the rights of States to have more stringent

water quality standards or associated effluent limitations;
”

S. Rep. No. 370, 95th Cong. Ist Sess. 43 (1977) 4
Legislative History, 676

Just as States were entitled to require more stringent
discharge requirements under the Act, so also their various pre-
existing common law and statutory remedies were preserved.
Section 505 creates a specific statutory cause of action for any
citizen to enforce any effluent limits imposed by the Act. By its
express terms the cause of action created by Section 505 is
limited to enforcing the specific limits set under the FWPCA.
Section 505 does not create any right to enforce obligations
which are not in the Act and common law nuisance claims are
not § 505 actions. Stream Pollution Control Board v. United
States Steel Corp., 512 F.2d 1036, 1041 (7th Cir. 1975).

Congress clearly stated that Section 505 did not bar any
other action which might exist under state common law or
statute. Section 505(e) of the 1972 Amendments states:

““(e) 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 (including
relief against the Administrator or a State agency).”

33 U.S.C. § 1365(e)

The House Report on the 1972 Amendments states:

“Subsection (e) provides that the right of persons (or class
of persons ) to seek enforcement or other relief under any
statute or common law is not affected.”

1 Legis. Hist. 821

F. Congress Was Aware Of Court Decisions That The
1972 FWPCA Amendments Had Not Preempted Fed-
eral Common Law. With This Knowledge It Rejected
Attempts To Preempt Both The Federal Common
Law And The Result In This Case

43

Given the clear intent of Congress that state statutory and
common law remedies be preserved, the Court need not reach
the question of the continued survival of a federal common law
remedy which would fill in the interstices of the federal Act as
now constituted. Nevertheless, the continued existence of a
“federal” common law nuisance power is extremely necessary
and useful. It is this federal common !2w nuisance authority
which fills the gaps that Congress did not forsee or the agency
could not address. For these reasons, and not as necessary to
the determination of this case, the Court should declare the
continuing vitality of federal common law power.

An examination of the legislative history of the 1972 and
1977 Amendments clearly establishes that Congress has not
preempted “federal” common law. Congress had a detailed
analysis of the federal common law of nuisance and the lower
court cases applying it when it adopted the 1977 amendments,
P.L. 95-217. By 1977, several cases, including a reported
decision in this case (366 F.Supp. 298; Pet. App. G-1 ef seq.)
had considered and rejected the argument that the 1972
amendments preempted federa/ common law claims. See e.g.,
Board of Supervisors of Fairfax County, Virginia v. United
States, 408 F.Supp. 556, 562 (E.D. Va. 1976); United States v.
Ira S. Bushey & Sons, Inc., 346 F.Supp. 145, 149 (D. Vt. 1972);
United States ex rel. Scott v. United States Steel, 356 F.Supp.
556, 559 (N.D. Ill. 1973); United States v. Ira S. Bushey &
Sons, Inc., 363 F.Supp. 110, 120 (D. Vt.), aff'd, 487 F.2d 1393
(2d Cir. 1973), cert. denied., 417 U.S. 976 (1974).

Congress knew that these cases had construed the 1972
amendments as preserving a federal common law of nuisance.
While Congress was considering the 1977 amendments, the
Congressional Research Service of the Library of Congress
compiled the significant decisions which had construed the 1972
Act during the preceding five years.15 The Library of Congress
Report contains repeated, specific discussions of this very case:

18 House Comm. on Public Works and Transportation, Case Law
Under the Federal Water Pollution Control Act Amendments of 1972,
95th Cong., Ist Sess. (Comm. Print 1977) (hereafter “Library of
Congress Report’’).

44

“*. ..[A] federal district court in Illinios [sic] held that the
Act does not preempt a State action in federal court based
on federal common law and seeking abatement of a
nuisance. Illinois v. City of Milwaukee, 366 F.Supp. 298
(N.D.IIl. 1973).”

Library of Congress Report at 3 (emphasis
added )

In discussing cases which had construed Section 505 there
was an entire section addressed solely to federal common law
nuisance actions. Library of Congress Report at 106-07.

Finally, in the discussion of case law under Section 510 and
its preservation of state authority, the Congressional Research
Service again referred to this case, and explained to Congiess in
plain, unequivocal terms that the lower courts had construed
the 1972 amendments as preserving federal common law:

“In Illinois v. City of Milwaukee, 366 F.Supp. 298
(N.D.Ill. 1973), the court held that neither the Act nor the
E. P. A. regulations governing waste discharges and water
quality barred a suit by the State of Illinois seeking to enjoin
as a nuisance a Wisconsin city’s alleged discharge of raw
sewage into Lake Michigan. The court relied in part on
Section 510 in finding that the Act was not intended to
terminate a state’s right to invoke the federal common law
of nuisance. Accord United States v. United States Steel,
356 F.Supp. 556 (N. D. Ill. 1973) (both the Federal
Government and the State of Illinois may rely on federal
common law of nuisance.) See E. P. A. v. California, 426
U.S. 200 (1976), discussed under Section 505.”

Library of Congress Report at 123 (emphasis
added )

Contrary to Milwaukee’s unsupported assertion that Con-
gress passed two major statutes in a state of blissful ignorance,
the legislative history is clear that Congress knew exactly what
it was doing, meant exactly what it said, and fully intended to

45

preserve the common law, including the federal common law.
It kept Sections 505(e) and 510 unchanged in the 1977
amendments. '6

IV

THE DISTRICT COURT PROPERLY HELD THAT FED-
ERAL LAW GOVERNS THE FEDERAL COMMON
LAW CLAIM IN COUNT I AND THAT STATE LAW
GOVERNS THE STATE STATUTORY AND STATE
COMMON LAW CLAIMS IN COUNTS II AND HL.

The complaint in this case has three separate counts: a)
Count I charged Milwaukee with the creation of a federal
common law nuisance; b) Count II charged Milwaukee with
violation of statutory prohibitions against water pollution con-
tained in the Illinois Environmental Protection Act, Ill. Rev.
Stat., ch. 111% § 1001 ef seg.; and c) Count III charged
Milwaukee with the creation of a common law nuisance under

16 Further, in 1977 Wisconsin Congressman Les Aspin made a
last-ditch attempt to overturn this very case and these constructions of
the 1972 amendments and to severely limit the availability of all
common law nuisance actions. Following the decision in the District
Court in this case, but before the entry of judgment, Representative
Aspin attempted to introduce an amendment to the bill which became
the 1977 amendments. This amendment is reproduced in full in a
separate Appendix, as are letters from Senator Stevenson and the
Department of Justice expressing opposition to the Aspin amendment
[Ill.App. 98a-103a]. The Aspin amendment would have amended
Section 402—the Section dealing with discharge permits under the
Act—and prevented a State and its citizens from bringing a common
law nuisance action unless the State first participated in the adminis-
trative permit process. It would have applied even to pending cases
unless a “final decision” had been rendered.

As Senator Stevenson’s letter to Senator Randolph pointed out,
the Aspin amendment—with its “final decision” language—was
plainly directed at the District Court decision against Milwaukee in
this case: it came in October, 1977, after the court announced its
decision (July, 1977) but before the entry of judgment ( November,
1977). Significantly, Congress did not adopt it. Having failed in
Congress, Milwaukee is now asking the Court to adopt a judicial!
version of the Aspin amendment.

46
Illinois law. The District Court found liability on all three
counts. (Pet. App. F-24.) The analysis set forth above clearly
demonstrates that the judiciary in declaring interstitial federal
common law—grounded on fulfillment of a legislative pur-
pose—has no constitutional power to oust concurrent state
statutory and common law rights where Congress has so
unequivocally stated its intent to preserve such state remedies.

Since there is no preemption of any state statutory or
common law claims, Erie and Guaranty Trust mandate that
state law determine the state law counts and that federal law
determine the federal law count.

Vv

THE EVIDENCE BEFORE THE TRIAL COURT BELOW
OVERWHELMINGLY DEMONSTRATES MIL-
WAUKEE’S LIABILITY FOR CONTAMINATING IL-
LINOIS WATERS OF LAKE MICHIGAN UNDER THE
FEDERAL COMMON LAW, THE STATE COMMON
LAW AND THE ILLINOIS ENVIRONMENTAL
PROTECTION ACT.

Milwaukee has taken snatches of the District Court’s
findings and concocted a series of evidentiary claims that have
little relationship to reality. It is sufficient to note that each of
Milwaukee’s evidentiary arguments was exhaustively examined
by the Court of Appeals and rejected. Both the District Court
and the Court of Appeals found clear and convincing evidence
of Milwaukee’s liability (Pet. App. F-15; F-23; A-27).

Given the detailed findings by the District Court (Pet.
App. F-1 to F-30), the detailed analysis of the testimony and
evidence by the Court of Appeals (Pet. App. A-26 to A-39; B-1
to B-32), the “two-court” rule applied in Berenyi v. District
Director, Immigration & Naturalization Service, 385 U.S. 630,
636 (1967) and Graver Tank & Manufacturing Co. v. Linde Air
Products Co., 336 U.S. 271, 275 (1949) should be applied here.
This Court “cannot undertake to review concurrent findings of

47

fact by two courts below in the absence of a very obvious and
exceptional showing of error”. Graver Tank & Manufacturing
Co. v. Linde Air Products Co., supra, 336 U.S. at 275.

Milwaukee repeatedly cites New York v. New Jersey, 256
U.S. 296 (1921), and Missouri v. Illinois, 200 U.S. 496 (1906),
as if the facts in those situations were identical to thuse in the
instant case. But in each of those cases the plaintiff State was
allowing its own dischargers to discharge equal or greater
amounts of sewage into the same watercourse, contaminating
the same water:

““Where as here, the plaintiff has sovereign powers and
deliberately permits discharges similar to those of which it
complains, it not only offers a standard to which the
defendant has the right to appeal, but as some

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A17. Public record. Not legal advice.