Amicus Brief — Milwaukee v. Illinois

6 . Ving TOMS VUUIl, Us me

ELLED

JUN 2 1980

K_ JR. CLERF

No. 79-408 | MICHAEL RODAK. JF

In the

Supreme Court of the United States

Octoser TERM, 1980

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.

BRIEF OF THE ILLINOIS STATE CHAMBER OF

COMMERCE AS AMICUS CURIAE IN SUPPORT OF

THE PETITIONERS, CITY OF MILWAUKEE, ET AL.

Ricuarp J. Kisse.

JEFFREY C. Fort

Joanna C. New

Martin, Craic, CHESTER & SONNENSCHEIN

115 South LaSalle Street

Suite 2400

Chicago, Illinois 60603

(312) 368-9700

The Scheffer Press, Inc.—(312) 263-6850

INDEX

PAGE

INTEREST OF AMICUS CURTAE oun essssesees 1

PRP MI PBI scsisssctevcravnssscscniassescssecomnnepnonstins 4

QUESTION PRESENTED. ou... cecsssssssssmsesesssesssnseres 4

SUMMARY OF ARGUMENT on sccssececseseeeeees 4

PR TTTL ststiniensstesiennsisensainisininasetidetoneannnniianadiaiteecicneeiiniontn 7

THE COURT SHOULD HOLD THAT THE

FEDERAL COMMON LAW OF NUISANCE

HAS BEEN DISPLACED ........ ce ccseseeseececcsccnseseees 7

A. The Federal Common Law Of Nuisance, A

Judicially-Created Remedy, Is Displaced When

Congress Enacts A Statute Applicable To The

RP SRE CIV OIG svsccscetissscesssnsssianssmsiecevermeerennece 7

B. Congress Has Addressed The Subject Matter

Cf The “Federal Common Law Of Nuisance”

By Enacting Complex And Detailed Statutes

Which Prescribe The Appropriate Degree Of

Federal Protection Of The Environment ........ 14

1. Protection of Surface Waters--The Clean

TIE I nicisneseadibascssvsenshphrbvlinnthlssacnitcnpiehisinonialtenbeiatiies 16

2. Protection of Ambient Air Quality—The

IIE NIIP TIMID: ccc nssticinas Reiiishecsencdansictegsahbenmensieucensiog 27

3. The Resource Conservation and Recovery

IE. siclabiihiciscdioliccassieansicnceitpesiaahaadiesdibbicleidiabadbiaialiad abo kdaieien 34

4. Regulation of Chemicals to Avoid Un-

reasonable Risk to Health and Environment 38

5. Federal Restraint on Major New Develop-

NS Sitietsceteveeeiescomniionnacta nents 40

C. The Court Should Hold That Congress Has

Displaced The Federal Common Law Of

SONI “< Sisntasstsnschdlinibuansuceiicdtemedicnteldtaopaleiiealnss oragiananabbens 42

SIRT cisersacckncasinisipnsiticveninsiaientomianwnbeabamanbaataipeeheneinn 45

PAGE

CASES

Alabama Power Co. v. Costle, 606 F.2d 1068 (D.C.

Un IID slain incase ele bipenendinbenenediibdansadaiedits 32

Alton Box Board Co. v. U.S.EPA, 592 F.2d 395 (7th

UN I ann 19

Arizona v. California, 373 U.S. 546 (1963) .o.c.ccccsesseees

SCR TEN A RE 9, 10, 13, 14, 42

Arizona v. California, 344 U.S. 919 (1953) 0... 10

Califano v. Goldfarb, 430 U.S. 199 (1977) ...ceeceeeeeeeee 8

City of Highland Park v. Train, 519 F.2d 681 (7th

i aI’ ~ secahcsdledslatinninndibinidcsien cntlilencdyideisestindeasigdiaaciiicanidtalin 33

Crown Swmpson Paper Co. v. Castle, 48 U.S.L.W.

BR SN BE, TID acnccccccesnsnecccsccscnnnnsnnscnennevanssiicienenoes 20

DuPont v. Train, 430 U.S. 112 (1977) wee eee .20, 21, 33

EPA v. California, 426 U.S. 200 (1976) ..........0... 16, 18, 21

Erie Railroad v. Tompkims, 304 U.S. 64 (1938) ........ 43

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976) .... 41

Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ........ 43

The Harrisburg, 114 U.S. 199 (1886) wees 11,12

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ....7, 14, 43

Illimois _v. Outboard Marine Corp., Nos. 79-1341,

79-1725 (7th Cir. March 29, 1980) ...........ccccccsceseeees .22, 45

Illinois State Chamber of Commerce v. Pollution Con-

trol Board, 67 Ill. App. 3d 839, 384 N.E. 2d 922 (1st

nh III sliedcablattbalerpdcksetinensshinichentinntonanantelindniisisshntemnattieenens 2

Kleppe v. Sierra Club, 427 U.S. 390 (1976) .......... 42

Mobil Ow Corp. v. Higginbotham, ........ a 98

S.Ct. 2010 (1978) ..rccsecceccccsccsssecscsesssssssesseees 9, 11, 13, 14, 42

Moragne v. States Marme Lines, Inc., 398 U.S. 375

GEC Set ea ere een ee OOD Oa 12

Natural Resources Defense Councid v. EPA, 537 F.2d

Se ee I ITI siti snntlisnscctisantnacrtiicescncnnesinncininuinibdtiibaaniidi 21

Natural Resources Defense Council v. Tram, 421 US.

Saar ATED initnisidiidiiansiciciitiianintpnsetiinsiitciansonadeeninsenisaheptibiitii 28, 29, 32

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573

SUITS ~dckainieiieksiaasisiodaeadlctdatesininteTalnnesiesshcgaiscitaeaibninbariichatii 12

PAGE

Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (D.D.C.

1972), aff’d sub-nom Fri v. Sterra Club, 412 US.

Re Se ERI ree PRN NEL LORE oat SORIA 30

Strycker’s Bay Neighborhood Councd, Inc. v. Karlen,

Saint TLS. asses, 100 S.Ct. 497 (1980) crecccscccscssseeesee 42

Sere &. Tem, TH FOG. 1) CTBGE) sisiccicvsssvcccsccdisisacens 43

Train v. City of New York, 420 U.S. 35 (1975) ....... 26

TVA v. Hill, ........ US. ........, 9% S.Ct. 2279 ¢1978) .... 8,9

Union Electric Co. v. EPA, 427 U.S. 246 (1976) .... 28

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 435 U.S. 519 (1978) .... 42

Washington v. General Motors Corp., 406 U.S. 109

SY: sciisris ick ect colebadielsodainciiaisnmanteacaernsaakvemeseistaartonesvnnais . 384

Wheedlin v. Wheeler, 373 U.S. 647 (1963)... 41

Wyoming v. Colorado, 259 U.S. 419 (1922) wees 10

STATUTES

Federa! Insecticide, Fungacide and

Rodenticide Act

a a lt ean aphabuemnbaniainndehie 38

aa all ed laiendinillavaboriie 38

Flaca ae calla 39

CE TE MAS a EE ENE IO TIEN 39

8 RENEE AES ADR SEE OP yy ee EST eer 39

a dace bebe saleebmasaaunanemneinee 39

Toxic Substances Control Act

Ts 8 Gg RS RSE caper nies aah merase NETO A 38

Balas cclaces binllch és aasmndccranenemmanslatil . 39

I ce ceeianaeeioabiionens 39

Ss esiocsstonenrnindasaicedgnsmininncsbiasinhieeindeioe . &

Ree oo cscs cas cpsinhimasdinsinnsentcuabanenepeinnabionmadivsantions 39

BB TTR, WIRD wcsiiesensecscecesisssscorsensseyssnissetnnarieceonssesssonvonsesson 39

iv

PAGE

Coastal Zone Management Act

Bae Airs. MINES Uiscsabitestenaeeovmn edad nisienensasidsadhlcnasbienaellccsounak 40

Rivers and Harbors Act of 1899

Be aE I iaibsiictaiccnedehcidhtashcbesietdlirhstssbeinka pcdiainshedinSaniceiaan 40

33 U.S.C. $407 .....scsceeee diesshecites tates te chesdeasiaaiseatakiomnadecanseangets 40

Clean Water Act

Oe Se HEME sasiserinveinseccereins cele cesigtasdida Naseer leavisicciamelade 25

Se IS, MINNIE -s\ccihcosadakasbleysitcesue onoraseckicsa ele eslsuibpedondiaetentiae 17

He IN III ici seiesas scope seep ahiedeavesapinanicbattbondadeasiodan 26

De A RO exci nscaheinasieiss Aestinsbscilba ii duoesbissslepimaesbotanes 26, 27

Ss is es clans asennad eds sane 25, 40

ERIC EET Mama Rone None Uo ote NUT 25, 27

Ie, I" jetcsbah sc adhsdiotishceihsetele snd stassncotcepaunlansacsconnns 17, 19, 20

BO UE.C. QUSIS ccncsssccsrere iad aciiaidieehannalisndesdateesaiiicadae ies 25, 40

Be RI RN. achccnscssnionosuiicniniceenchechaabidetedibinskaneswnens isuouias 17

Pe SEs. DRAG | restcrmnconnstsass ahd bilnibcdinnseinsebeabassendeladcien 17, 20

Be SN I scschhinies Sossinceibbsemastniboratbsnciéesebudnxambesbeectainanuiie 25

Be IEE asia cebeci-occehistectassdrisheteshtedsbcnidantdeabvclsesoiinanai 18, 19, 21

Be TEENIE faa civsiins coset rsninlphanccuntaemnndiiapceiectakiion ...14, 40

Ne Ny IIE Sutasicossenedinsoniexeevedsensicnsssccoustibceoeieseccicabsdcnsanmenlan 14

ee Nt, MIE deirasssoniaiennindatcninteadasscctibobamnscubornaieintings 19, 22, 23

ee as: MIE ccmnaeridartacsianinicneamonsepunahanlbindccommiascdueainein 20, 21

Safe Drinking Water Act

42 U.S.C. §300 ........ LisoiecaeiLeaieananaaseeinniinaiadiadencaicsansccees 37

National Environmental Policy Act

Se re I sii nce ash saa cneecercsssisichinstccinpslaheadsaacabatereiates 41

Resource Conservation and Recovery Act

IEEE sscsienseslendidiaiapbsemitnbaadinesosiedswadiniaizdasdcsanieices 14, 34, 35

Sy ts EI. checocabsitagsinnned abenincegcaubedavceavigenneinabeiobenabii 35

PAGE

BS UB, GORE vesesnccccacsissscteiccechncaheueeeen 35, 37

GB UC. GID eaissacssccctscsaiiisdccéncoccesssnseesisueuceeesaenaeee 37

GB UB. GORD niceivvicsecslsiecaiccesssncncecedesnueemeeeanneieaeneane 37

G2 UBC. QI vncessccienssiitssesesohscnassansmavensndsenaeniinaeenneann 37

GD UBS, GIB asec csiniacessinsecsicescasacoundunusainunenn ene 37

GS UG. GORE os vsceccisisscssccvnissnnssseedsninmntasnsen nile 36

GS UB. GORD vivcicssnbetiscctisnnsecsersrcosunneaeeeeeeeeee 36

GS UA. QL cc cvexccancascusieccicscessespseniueaeanneneenn ne 35

GS UB, GED veicsndisiesessenvisexcuersnessicunnnnseecuanaaanaeneneaa 35, 37

GD UBD, DOB. ivsiinctsccicicciscecesevssensyssubnnenads nea 36

BS GBS. FOIE civcccesssccsescsscessssiacinaseismenecanaeeeeeeee 36

GB Ul TRAD. GE wiviviensisanivescineiotsensnsnnaenen ta 36

BB UBC. GGG oa scecesessssvisoresssaccesayavscoseusesonmunnanananeeana 35

BS UBC... GOT vv cosicsitorsicnscsivencesactnecsutacdeliansaneanannennan 37

GB UBC. GOB G ek icvissisesivcicnsssssocdncniecuentanaenaanaenee 37

BB UB. GOBTG av voiescssciscecsdcecsnceeecivessnninesuan 37

Clean Air Act

P.Lr. GG-BG SEBO]) ..cericccscciccrsenn aasinaisciiituovsssibilaaaiiuhdaadaeaaena 31

BO USEC. SIRI vvcsessesiccensssnsavcsncsceccpeeseachinnelaeieaseaaaaa 31

BS UBC, DIRRO: vsvccccscscticsniccssccrcecesceeuen eee 27,33

GB UB. GTA; wisssiiesictucccicncccnceeeeee 28, 29, 31, 33

GS UBC. STGTB vvcccccsscssevcccccsssvcinenssaiciatueniaaaaeeee 29, 30

BD WGC, STGTB : ci sccsiscssvssisecosssdiesccnctendaueeaneeee 40

4B UBC. DEER ciccscccucscnisincsisivsntcene eee 40

GB UWB. STETB hiccccescecccrsscscrncicassstiaubesdicion aie 40

G2 UB. CRAG vvcevcerenrseseersintsctenn eee 40

BB TBC. SEABE wcvciccsescssttcsccccscethintimieea ae 40

GB TEER, STII iva scecsscssucscssscsssitcseaticueneneieee 40

BB UGG. GTI a ceceinscctsscovtncssensenscnndeneeaaeneaeee 28, 31

4B UB.C. SO FEEAGA occvnresvacsossssintivticigtecnneetensneee 31

| PAGE

A TI, FID oniecivsessisscvinssticnensintinvniaianmaaa 34

TER, SII cscrscssescesssessissisnsssnisiccnenvineneveniaaaanalaenal 31

Be EA SIE on sneestesncessessiessisvcsivenioniansnnminammalaal 23, 33

Sy Were QUE sasseninitnintnisenrnsitinsisaiaenietioanteaaaammaalia 28, 29, 33

Boulder Canyon Project Act

Be UT, GoGo iii ikesiniisiicis escent 10

Death On The High Seas Act

Be TTI, SIGD ssiesivsessasseroniisnensssseniiosttiinutilcaesiannaamaialiaianaam 11

State Statutes

Til. Rev. Stat., ch. 11114, $1027 (Db) .........ccssccssssssssnsssseseses 2

Wee. Hhwk. Asim, SET os cccsicvcissmcsscccssvanees i scinesnspicaneahaaleuedaeh 18

OTHER AUTHORITIES

123 Cong. Ree. H. 12933, 12934 (December 15, 1977) ..18, 20

A History Of The Federal Water Pollution Control

Act Amendments of 1972 (Comm. Print, 1973) ....

pile tleihaninbaemsiinsinasnwinieaaintatiasiconaaneiaacammaaa aaNet 23, 24, 26

Bee Be FUMBLES (UGTO) vessvsssscecsssnssnincsssiincenanntseienaadaia 41

Be So i SRR Re CRITE): vivsscncssinceciccsunsersoosantimpiamanee 41

Se Ge Bs GORD CRIT) | vsicasseississsinsnsctinnieanlangintaniiopaaa 41

Oe GL. DI CIB TO) cvcivsccivciccrmaenisinsicncenaumnel 17

Oe Ra ee FO CIID eiicentcscctistnisiniccisnteantnnns 36

me SP. Peet GG CFTOY cvivciensicsccnenee 36

er OU, Tete, GR CUD TE) os sehieesisssncensssnisnsssemricniempeieens 30

41 Fed. Reg. 5524 ef. seq. (1976) .......cccscssccssseccsssessssseees 30

Me WOR, Tat, SETS CUGTEY ciecicccssevsciesertcccspniananinns 41

45 Fed. Reg. 33119-33133 (1980) ...........ccssssscssssccscsscessess 35

45 Fed. Reg. 33243-44 (1980) .......c..esccccscsscsssesssersssseseres 36

EPA, Office of Water Program Operations “Program

Guidance Memorandum 61”, PRM 75-34 (Decem-

OE BE, TBD sactcntececeesnsssstshnitntegsnssseciniasieiiaabanaaneaianayl 26

EPA, “Grant Funding of Projects Requiring Treat-

ment More Stringent Than Secondary”, PRM 79-7

CHRO D, BET) ccsvsissonecicssncessomnseningsnstannanaaicnaniacaaal 26

In THE

SUPREME COURT OF THE UNITED STATES

Octroser Term, 1980

No. 79-408

CITY OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE,

AND THE METROPOLITAN SEWERAGE

COMMISSION OF THE COUNTY OF MILWAUKEE,

Petitioners,

vs.

PEOPLE OF THE STATE OF ILLINOIS AND

PEOPLE OF THE STATE OF MICHIGAN,

Respondents.

BRIEF OF THE ILLINOIS STATE CHAMBER OF

COMMERCE AS AMICUS CURIAE IN SUPPORT OF

THE PETITIONERS, CITY OF MILWAUKEE, ET AL.

INTEREST OF AMICUS CURIAE

The Illinois State Chamber of Commerce (“State

Chamber’) is a not for profit corporation with a mem-

bership of approximately 20,000 members and 6200 firms.

These companies represent a cross-section of the Illinois

economy, including manufacturing, agriculture, finance,

transportation, the professions, and the service indus-

tries.

an, ene

The goals of the Illinois State Chamber are to main-

tain a sound economy and a healthy environment. On be-

half of its members the Illinois State Chamber has

strongly supported an environmental protection program

for Illinois to achieve these goals. Our organization has

been directly involved in the Illinois environmental pro-

tection program for ten years. The Illinois State Cham

ber also participated as a proponent in the debates sur-

rounding the “economic impact” amendment to the Ili-

nois Environmental Protection Act. That provision man-

dates that, before any new environmental measure is

adopted for the State of Illinois, the Illinois Pollution

Control Board must consider whether the potential eco-

nomic harm to the people of Illinois that could result

from a proposed statute or regulation would outweigh its

environmental benefits. [ll. Rev. Stat., ch. 111 1%4 $1027

(b); see Illinois State Chamber of Commerce v. Pollu-

tion Control Board, 67 Ill.App.38d 839, 384 N.E.2d 922

(1st Dist. 1978) aff'd, 78 Ill. 2d 1 (1979).

The Illinois State Chamber has cooperated with the

Illinois Pollution Control Board, the Illinois Institute of

Natural Resources, and the Illinois Environmental Pro-

tection Agency in order to assure that technologically

feasible and economically reasonable pollution control

standards were promulgated. We have worked with

these state agencies to achieve environmental objectives

with necessary business safeguards. The Illinois State

Chamber has contributed to the necessary legislation and

regulations for delegation of federal environmental con-

trol authority to Illinois, including the National Pollutant

Discharge Elimination System, the New Source Perform-

ance Standards, and the State Implementation Plan un-

der the Clean Air Act. The State Chamber also served

i

on a task force dealing with hazardous waste disposal

and toxic substances spills. With the Illinois Environ-

mental Protection Agency and the United States Envi-

ronmental Protection Agency, the State Chamber has

sponsored statewide conferences on environmental con-

trol programs. The Illinois State Chamber is represented

on the Illinois Policy Advisory Committee of the Illinois

Environmental Protection Agency. We have continually

demonstrated through our involvement in the issues of

environmental regulation, our willingness to work toward

solutions to environmental problems in a spirit of good

faith and cooperation.

As a representative of the economic community of Ili-

nois, the Illinois State Chamber’s interests in this case

reflect the diversity of its membership. Of general con-

cern is the increased local tax burden that Illinois busi-

nesses would be asked to carry if a federal common law

standard was added to the standards already applicable

to municipal water dischargers under the Clean Water

Act. Imposition of a common law standard would affect

every establishment located in a municipality with a

waste water treatment facility. Even if a business never

used the publicly-owned treatment works to discharge

industrial waste, it would be required to finance the addi-

tional costs of meeting a common law standard through

a general tax assessment. Those establishments that use

a publicly-owned treatment works as their waste-water

disposal facility will be required to pay a proportionate

share of the increased construction and operating costs

of the treatment works to meet an effluent standard which

coud be more stringent than that imposed by Congress.

Direct dischargers to navigable waters, now subject to

the requirements of categorical technology-based treat-

a ae

ment standards and the National Pollutant Discharge

Elimination System permit program of the Clean Water

Act, would face the uncertainty of meeting an additional

or inconsistent standard determined by the federal dis-

trict court, which could result in an unnecessary financial

burden.

The [llinois State Chamber has sought to support the

statutory and regulatory programs of environmental con-

trol in all its aspects: air, water and land. If this Court

permits a common law of nuisance to be applied to en-

vironmental control standards in derogation of Congress’

statutory scheme, we believe our efforts to balance the

economy and the environment will be nullified.

CONSENT

We present this brief with the consent of all the par-

ties, pursuant to Supreme Court Rule 42, on behalf of

the Petitioners, City of Milwaukee, et. al. Copies of let-

ters of consent have been filed with the Clerk of the

Court.

QUESTION PRESENTED

Where the Congress has enacted a comprehensive

scheme to protect the environment, should the federal

courts have the authority to override that scheme by ap-

plying a federal common law of nuisance in the area of

environmental control?

SUMMARY OF ARGUMENT

The environment has taken its place in the mainstream

of political debates along with the economy, national se-

curity, taxes and welfare. Congress confronts environ-

mental issues, and continues to review them in the light

of national policy considerations. In the past ten years,

ce uve

Congress has enacted more than ten major federal stat-

utes to protect the environment. The major “federal pol-

lution control” statutes specifically provide for resolu-

tion of interstate disputes and provide a federal forum

for the complaining state. Because Congress has ad-

dressed the issues concerning the environment generally,

and specifically the issues raised here by the Illinois At-

torney General, and will continue as the forum for that

debate, the imposition of a doctrine of federal nuisance

presents a threat to Congress’ constitutional authority

to enact laws balancing competing interests. In this con-

text, a federal common law of nuisance is not only un-

necessary, and a usurpation of legislative power, it is

also wasteful from a standpoint of judicial administra-

tion.

The issues surrounding the conditions of our nation’s

environment are complex. The national interest in a pro

ductive economy and reliable energy resources requires

a delicate balance with environmental concerns. Control

of environmental quality requires engineering, biological,

chemical, economic, political and management skills. Fed-

eral agencies have been created to harness these disci-

plines to implement a national environmental protection

scheme. Judicial review must be invoked to resolve dis-

putes and in that role, the courts should take an active

part in determining whether the agency has relied upon

substantial evidence in making its decision and properly

interpreted the statute. Although we believe the courts

are often too deferential to agency decisions, the admin-

istrative process is quicker, less expensive and better

suited for discussions, negotiation and initial resolution

of these complex issues than is formal litigation. The

courts must act as a procedural check on the agencies,

a res

but should not supplant them, only thoroughly review

them.

Federal courts should not be the forum for the crea-

tion of substantive environmental standards outside of

the legislative mechanism. Review and enforcement of

established standards is the proper role for the judici-

ary. As long as federal common law nuisance remains,

given the ease with which a common law claim can be

stated in the federal courts, a federal forum will become

attractive to those complaining of pollution. By permit-

ting this remedy, the federal courts will inexorably in-

crease their own burdens, a situation which would fur-

ther clog an already crowded federal court system.

niatltes

ARGUMENT

THE COURT SHOULD HOLD THAT THE FEDERAL

COMMON LAW OF NUISANCE HAS BEEN DIS.

PLACED.

Congress has enacted complex and detailed statutes

for environmental protection, including protection of

neighboring states’ interests, while recognizing competing

societal interests. The funetion of the lower federal

courts in these statutes is to review administrative ac-

tions and to enforce the requirements established by the

U.S.EPA after they have become final. Notwithstanding

these remedies, the lower federal courts have relied upon

this Court’s decision in Illinots v. City of Milwaukee, 406

U.S. 91 (1972), to consider whether regulated activi-

ties constitute a nuisance under federal common law. To

allow the lower federal courts to apply the federal eom-

mon law of nuisance permits the judiciary to create en-

vironmental standards independently of the statutory

scheme. This is unwise as a matter of judicial policy and

constitutes the unconstitutional usurpation of legislative

power by the lower federal courts.

A. The Federal Common Law of Nuisance, A Judicially-

Created Remedy, Is Displaced When Congress Enacts

a Statute Applicable To The Case Or Controversy.

The doctrine of separation of powers prohibits the

judiciary from usurping the essential authority of

Congress.

The doctrine of separation of powers ascribes to each

governmental department an exclusive function. To the

judiciary belongs the interpretation and enforcement of

the law; to the Congress, the embodiment of public pol-

= os

icy in statutory schemes; and to the Executive, the ad-

ministration of those schemes. This Court described the

allocation of power, with reference to its earliest inter-

pretation:

While “[i]t is emphatically the province and duty

of the judicial department to say what the law is,”’’

Marbury v. Madison, 5 U.S. 137, 177 (1803), it is

equally—and emphatically—the exclusive province of

the Congress not only to formulate legislative poli-

cies, mandate programs and projects, but also to es-

tablish their relative priority for the Nation. Once

Congress, exercising its delegated powers, has de-

cided the order of priorities in a given area, it is for

the Executive to administer the laws and for the

courts to enforce them when enforcement is sought.

TVA v. Hill, ........ ROaEN essai , 98 S. Ct. 2279 2301 (1978).

The doctrine preserves intergovernmental boundaries and

enchances the exclusive authority of each department. To

accomplish these ends the doctrine commands that each

branch respect the distinctive provinces of the others.

Application of that approach requires Congress to de-

fer to the judicial functions of interpretation and review,

just as the courts must defer to the Congressional func-

tion of expressing public policy through statutory en-

actments. This Court has consistently refrained from

substituting its judgment for that of Congressional

drafters. In Califano v. Goldfarb, 430 U.S. 199 (1977),

where eligibility classifications within the Social Security

Act were challenged, the Court reasoned:

Congressional decisions in this regard are entitled

to deference as those of the institution charged under

our scheme of government with the primary respon-

sibility for making such judgments in light of com-

peting policies and interests.

a ‘Som

Id. at 210. With this rationale the Court has acknowl-

edged that, in matters of public policy, the judiciary can-

not encroach upon legislative authority.

Respect for Congressional decisions formed the basis

for the Court’s treatment of the statute attacked in

TVA v. Hill, ........ team , 98 S. Ct. 2279 ((1978). That

controversy pitted the snail darter against the TVA’s

Tellico Dam project. The Court declined to impose its

own judgment when Congress had plainly stated its prior-

ities through the Endangered Species Act. In concluding

that the doctrine of separation of powers required re-

straint where Congress had spoken, the Court stated:

Once the meaning of an enactment is discerned and

its constitutionality determined, the judicial process

comes to an end... . [I]n our constitutional system

the commitment to the separation of powers is too

fundamental for us to pre-empt congressional action

by judicially decreeing what accords with “common-

sense and the public weal.” Our Constitution vests

such responsibilities in the political Branches.

Id. at 2302-03. In this decision, the Court acknowledged

that the priority stated in the Endangered Species Act

was an expression of public policy within the exclusive

control of the Congress. To maintain the basic structural

integrity of the Constitutional design, the Court ruled,

the judiciary may not impinge upon the policy-making

activities of the legislative branch. Jd.

A parallel judicial remedy cannot be invoked where Con-

gress has enacted an applicable statute. This Court relied

upon that principle when it resolved two controversies

of peculiarly longstanding duration. Mobil Ow Corp v.

Higgwmbotham, ........ ik hee , 98 S.Ct. 2010 (1978); Ari

gona v. California, 373 U.S. 546 (1963). The course this

ae.

Court followed to arrive at these decisions exemplifies its

responsiveness to the voice of Congress. In each decision,

the Court abandoned a traditional judicial remedy to en-

force a federal statute.

The historic struggle of the southwestern states to al-

locate the waters of the Colorado River was presented to

this Court in Arizona v. California, id. The states had

initially attempted to distribute water rights through an

agreement, the Colorado River Compact, negotiated in

1922. Id. at 557. The Compact failed to quiet the dispute.

The states were unwilling to implement the Compact be-

cause of continued applicability of two judicial doctrines

governing interstate water rights: prior appropriation and

equitable apportionment. See Wyoming v. Colorado, 259

U.S. 419 (1922). The law of prior appropriation—‘‘first

in time, first in right’’—would have given California the

‘‘lion’s share’’ of the water. Arizona v. California, 373

U.S. at 558. The equitable apportionment rule was the

Court’s method of measuring the equities of imterstate

water allocation, and would have required some states to

relinquish water to compensate shortfalls in other states.

Id. at 562. Congress finally enacted the Boulder Canyon

Project Act in 1928 to provide a method of apportioning

water among the states. 43 U.S.C. §§617-617u. But the

controversy did not end there. In 1952, Arizona filed a

complaint in this Court against California for imfringe-

ment upon its rights to water from the Colorado River.

See Arizona v. California, 344 U.S. 919 (1953). The case

was resolved ten years later when the Court had weighed

the implications of the Boulder Canyon Propect Act. The

Court found that Congress had created a comprehensive

water apportionment plan. Arizona v. California, 373 U.S.

. 546, 565 (1963).

7

oka

Observing the extensive control over water allocation

exerted by the federal statute, this Court did not apply

the judicial apportionment doctrines. In holding that the

Project Act had displaced the common law remedies, the

Court stated:

Where Congress has so exercised its constitutional

power over waters courts have no power to substitute

their own notions of ‘‘equitable apportionment”’ for

the apportionment chosen by Congress.

Id.

The resolution of an interstate dispute that had per-

sisted for nearly fifty years was accomplished when this

Court deferred to a comprehensive Congressional scheme.

This Court again recognized, albeit somewhat belated-

ly, the principle of judicial deference when presented with

the question of a wrongful death remedy for a high seas

fatality in Mobil Ow Corp. v. Higginbotham, ........ US.

seins , 98 S.Ct. 2010 (1978). The Court’s decision culmi-

nated a search for a maritime wrongful death remedy

that had begun some ninety years before. In 1886, the

Court had ruled that the general maritime law did not

provide a survivor’s remedy when the victim had died

on the high seas. The Harrisburg, 119 US. 199 (1886).

Since the states had enacted wrongful death statutes,

that remedy was available when the fatality oceurred in

state waters, but not beyond the territorial limits. To

correct the anomalous effect of a remedy based on how

far from the shore the victim had died, Congress passed

the Death on the High Seas Act in 1920. 46 U.S.C. §761

et seq. The statute granted a wrongful death remedy in

admiralty for deaths beyond the three-mile coastal limit.

The act is patterned after the state wrongful death stat-

utes, governing the class of beneficiaries, the statute of

ae eo

limitations, conii-uation of the action, and contributing

negligence. Id.

The Supreme Court did not repudiate The Harrisburg

until 1970, in Moragne v. States Marine Lines, Inc., 398

U.S. 375 (1970). There the victim had died while working

on a vessel in Florida waters. The Florida wrongful death

statute did not recognize a claim based upon unseaworthi-

ness. Because the fatality had occurred im state waters,

the Death on the High Seas Act was also precluded, In

response, the Court specifically overruled The Harris-

burg and held that the general maritime law provides a

wrongful death remedy, thus permitting the widow to

seek damages despite Florida law. Moragne v. States Ma

rme Lines, Inc., 398 U.S. at 409. That ruling was subse-

quently broadened in Sea-Land Services, Inc. v. Gaudet,

414 U.S. 573 (1974).

In Gaudet, the fatality had occurred aboard a vessel in

Louisiana waters. The survivor brought a claim under the

general maritime law, seeking compensation for loss of

society which was not permitted by the Louisiana wrong-

ful death statute. The Court held that since admiralty

had traditionally demonstrated a concern for the survivors

of seamen, compensation was available for loss of

support, services, and society, without regard to place of

death. Id. at 590.

The Moragne and Gaudet decisions, when read together,

appeared to replace the Death on the High Seas Act.

Where the statute had been enacted to eliminate an in-

equity between state statutes and the admiralty law, new

anomalies had been created when the Court broadened

the maritime remedies. The Gaudet rule could be used to

bypass entirely both the Death on the High Seas Act and

state wrongful death statutes.

_

The confusion created by two parallel remedies, one

created by Congress in 1920 and one created by Gaudet

in 1974 was resolved in Mobil Owl Corp. v. Higginbotham,

‘itainsale US. ........, 98 S.Ct. 2010 (1978). Again survivors of

fatalities in Louisiana waters sought recovery for loss of

society based upon general maritime law. The precise is-

sue presented to the Court was whether the Gaudet deci-

sion or the Death on the High Seas Act provided the

measure of damages. This Court deferred to the Death on

the High Seas Act, holding that it constituted the Con-

gressional expression of a wrongful death policy. The

Court explained:

[A] desire for uniformity cannot override the stat-

ute .... The Act does not address every issue of

wrongful death law, . . . but when it does speak di-

rectly to a question, the courts are not free to ‘‘sup-

plement’’ Congress’ answer so thoroughly that the

Act becomes meaningless .... There is a basic dif-

ference between filling a gap left by Congress’ silence

and rewriting rules that Congress has affirmatively

and specifically enacted ....[WlJe have no authority

to substitute our views for those expressed by Con-

gress in a duly enacted statute.

Id. at 2015 (emphasis supplied).

This Court again invoked judicial restraint, reasoning

that the goal of uniformity did not justify the nullifica-

tion of an Act of Congress. As in Arizona v. California,

373 U.S. 546 (1963), the Court had resolved a decades-

long controversy by recognizing that the Court had no

authority to displace or modify a Congressional remedy.

Thus, where Congress has addressed an issue, that

decision must be respected by the courts, unless the act

we ee

is unconstitutional. A judicial remedy may not be in-

voked to override the Congressional decision. When the

Court has adhered to the separation of powers and

yielded to the commands of Congress, long-standing in-

terstate controversies have been finally resolved.

B. Congress Has Addressed The Subject Matter Of

The “Federal Common Law Of Nuisance” By Enact-

ing Complete And Detailed Statutes Which Prescribe

The Appropriate Degree Of Federal Protection Of

The Environment,

Since April 24, 1972, the date of this Court’s decision

in Illinois v. City of Milwaukee, 406 U.S. 91 (1972), Con-

gress has enacted, or substantially strengthened, legis-

lation concerning every known environmental medium.

While this Court stated ‘‘When we deal with air or water

in their ambient or interstate aspects, there is a federal

common law... .’’ id, at 103 (emphasis added), Congress

has gone further.

The modern version of the Federal Water Pollution

Control Act, as amended by the Clean Water Act of

1977, was enacted on October 18, 1972 and governs federal

control of wetlands and ‘‘waters of the United States.’’

33 U.S.C. §1344, 1362(7). The Clean Air Act of 1970

has been implemented and significantly amended by P.L.

95-95 in 1977. The Resource Conservation and Recovery

Act of 1976 (‘‘RCRA,”’ P.L. 94-580) completely revamped

the Solid Waste Disposal Act, and created a cradle-to-

grave scheme to protect against land, water and air

‘*pollution’’ from liquid and solid ‘‘wastes’’. 42 U.S.C.

§6901(b). The new Toxic Substances Control Act (‘‘TS-

CA,’”’ P.L. 94-469), together with the 1972 revisions to

— See

the Federal Insecticide, Fungicide and Rodenticide Act

(‘‘FIFRA,”’’ P.L. 92-516), regulate the acceptable methods

for use of chemicals, including agricultural applications.

The Safe Drinking Water Act of 1974 (P.L. 93-523) adds

yet another protective measure for public water supplies.

And various provisions of other federal statutes control

even the siting of new facilities. As a result of these

legislative activities, the text of the procedural and sub-

stantive regulations promulgated solely by the United

States Environmental Protection Agency will soon become

more lengthy than those adopted by the Internal Revenue

Service.

These statutes, as explained in some detail below,

have addressed not ouly the substance of the federal com-

mon law of nuisance, but also the procedural justification

for this Court recognizing a federal common law of nui-

sance claim in /llinois v. Milwaukee. They contain several

features which are relevant to the question presented.

Each provides substantial environmental protection in

the context of an urbanized and industrial society. The

Clean Air, Clean Water and Resource Conservation and

Recovery Acts impose mandatory duties upon the Ad-

ministrator of U.S.EPA to adopt regulations pursuant to

economic, scientific and other specified criteria and pro-

vides that private citizens may sue in federal court to

compel the performance of those dutes. Citizens enjoy

broad rights to participate in rulemaking permitting and

enforcement actions. The statutes generally provide, how-

ever, that when rulemaking and rermitting actions are

completed, such administrative action must be challenged

at that time, and cannot be challenged later. The intro-

duction of new chemicals, significant new uses of chemi-

cals and significant new construction are prohibited by

— ie

other statutory provisions until specific standards have

been met and administrative «approval received. These

standards and approvals too are judicially reviewable by

an adversely affected person. Thus, Congress has enacted

statutes which require. regulations defining the appro-

priate degree of protection, allow for participation by

any person affected by administrative action, pro-

vide for judicial review of that action and focus judicial

enforcement upon final standards. The general Congres-

sional approach to environmental protection has been to

involve the executive and the judiciary to carry out its

laws, while permitting the states, environmentalists and

industry alike to be involved at nearly every stage of

the proceedings.

1. Protection of Surface Waters —

The Clean Water Act.

Less than six months after the Court’s decision in

Illinois v. Milwaukee, Congress enacted, over the Presi-

dent’s veto, the modern version of the Federal Water

Pollution Control Act, now known as the Clean Water

Act. That statute states the definitive federal rule of

decision, and should now be expressly so recognized by

this Court as displacing the federal common law of

nuisance.

The Concept of Discharge Control

and Technology-Based Limits

Prior to the 1972 Amendments, the Federal Water

Pollution Control Act had provided for actions to re-

strict those discharges which caused water quality prob-

lems. Congress rejected this nuisance-like theory, and

opted for control at the point of discharge. EPA v.

Caltforma, 426 U.S. 200, 204 (1976). Section 301(b) of

| a

the Act now prescribes the timetable for attainment of

specified levels of treatment technology by dischargers.

It also establishes the criteria which must be applied to

define the appropriate discharge level. 33 U.S.C. §§1311

(b)(1)(A) and (b)(2)(B), 1817(a)(2). The necessary

degree of treatment must be based on ‘‘the age of

equipment and facilities involved, the process employed

[and] the engineering aspects of the various types of

control techniques, process changes, non-water quality

environmental impact (including energy requirements).

.... 33 U.S.C. §1314(b)(1)(B), -(2)(B). ‘‘Best prac-

ticable treatment” must also reflect a “consideration of

the total cost of application of technology in relation

to the effluent reduction benefits to be achieved. ... ,” 33

U.S.C. §1314(b)(1)(B) while “best available treatment”

must include a consideration of “the cost of achieving

such effluent reduction. .. .’’ Jd, §1314(b)(2)(B). Publicly-

owned treatment works are expected to attain effluent

levels similar to best practicable treatment (secondary

treatment) and ultimately to employ “best practicable

waste treatment technology over the life of the works.

...? 1281(g)(2)(A). See id. §§1311(b) (1)(B), 1311(b) (2)

(B). Business which use publicly-owned treatment works

are subject to general and categorial pretreatment stan-

dards. Id. §1317(b) (1).

Permitting Procedure

A second significant feature of the 1972 Amendments

was the creation of the National Pollutant Discharge

Elimination System (“NPDES”) permitting program.

in BB ecce

See, EPA v. California, 426 U.S. 200, 204 (1976). This

program establishes a procedure by which Illinois, or

any other state, could contest the permits issued to a

source located in another state.

Sections 402(a) and (b) provide that NPDES permits,

whether issued by U.S. EPA or a state, are to include

conditions which apply and insure compliance with any

applicable requirements of sections 301, 302, 306, 307

and 403 of the Act. 33 U.S.C. $1342(a)(1), -(b)(1)(A).

The necessary conditions thus include any effluent limita-

tion “necessary to meet water quality standards. . . estab-

lished pursuant to any State law or regulation... .’’ Id.

§1311(b)(1)(C). A state with NPDES authority must

provide any other state whose waters ‘‘may be affected’’

by a discharge, notice of each application and “an oppor-

tunity for public hearing before a ruling on each such

application.’’ Jd, §1342(b)(3). The issuing state must also:

“. , . insure that any State (other than the per-

mitting State), whose waters may be affected by the

issuance of a permit may submit written recommenda-

tions to the p -mitting State (and the Administrator)

with respect to any permit application and, if any

part of such written recommendations are not ae-

cepted by the permitting State, that the permitting

State will notify such affected State (and the Ad-

ministrator) in writing of its failure to so accept

such recommendations together with its reason for

so doing.”

Id. §1342(b)(5); accord, Wise. Stat. §147.11-.13(1),-.20.

Congress intended that U.S. EPA would exercise its

power to object to the state-proposed permit when an-

other state objects. See 40 C.F.R. $123.24 (1979); 123

Cong. Rec. H 12934 (December 15, 1977). An objection

by U.S. EPA would preclude the state from issuing a

oni Mate

valid permit. 33 U.S.C. §1342(d)(2)(A). Congress has

now amended the act to authorize U.S. EPA to hold a

hearing and itself issue the permit in a dispute between

the states. Jd. §1342(d)(4). Thus, Congress expressly

provided a remedy which the Illinois Attorney General

could have used and which addressed the very issue

originally presented in this court’s decision in Illinois

v. Milwaukee. Moreover, section 505(h) allows a Govern-

or of a state to immediately sue the Administrator where

U.S. EPA is not enforcing an effluent limitation, which

under section 505 includes the requirements of section

301(b)(1)(C) against a discharger located in another

state. 33 U.S.C. §§1365(h), -(f) (2).

In addition to the rights granted to adjoining states,

the permitting process allows the affected discharger

(whether it be an industry or a municipality), the public

and other state and federal agencies to participate in

the translation of general standards and limitations into

specific requirements for the discharger. Unique circum-

stances may be taken into account under any one of sev-

eral theories: the plant is fundamentally different than

the facilities used as a base for promulgation of regula-

tions (e.g., Alton Box Board Company v. U.S. EPA,

592 F.2d 395 (7th Cir. 1979); the discharger cannot

afford to install additional technology, but is making

progress toward eliminating its discharges, 33 U.S.C.

§13811(¢c); the discharger proposes to install innovative

technology that has potential long-term benefits over

conventional treatment methods, id. $1311(k); or the dis-

charge of non-conventional, non-toxic pollutants will not

prevent attainment of certain water quality objectives,

vd. §1311(g). In addition, qualifying publicly-owned treat-

ment works and industries who proposed to connect to

= we

such works when completed, may be given until July 1,

1983 to meet the 1977 objectives of section 301(b)(1).

33 U.S.C. §1311(i). Furthermore, municipal treatment

plants which discharge to marine waters may receive

exemptions or modifications of the general effluent re-

quirements for such discharges if they can meet the

water-quality-related, and other criteria specified in sec-

tion 301(h). 33 U.S.C. §1311(h). And the applicable pre-

treatment requirements for businesses who discharge to

municipal treatment works which provide treatment of

a particular regulated pollutant, are to be revised accord-

ingly, so long as the acceptable uses (including disposal)

of the municipal sludge are not impaired. Jd., §1317(b) (1).

The plain intent of this requirement is to eliminate the

duplicative costs of “treatment for treatment’s sake.”

123 Cong. Rec. H 12933 (December 15, 1977). U.S. EPA

has promulgated a detailed regulation to implement these

pretreatment requirements and revisions, and published

its “National Pretreatment Strategy.” 40 C.F.R. Part 403

and App. A.

Certainty and Finality of Administrative Action

Another feature of the Act is the certainty and finality

accorded administrative action. Section 509(b)(1) pro-

vides for review by the circuit court of appeals of regu-

lations issued under sections 301, 302, 306 and 307, the

approval of state permit programs under section 402(b)

and the denial or issuance of permits by U.S. EPA.

See, Crown Simpson Paper Company v. Costle, 48 U.S.

L.W. 3596 (March 18, 1980) (per curiam); DuPont v.

Tram, 430 U.S. 112 (1977); 33 U.S.C. §1369(b)(1). Be-

cause of the broad right to participate before.U.S. EPA,

state governments, industry and environmentalists alike

— a

are within the provisions of section 509(b)(1). E.g.,

EPA v. California, 426 U.S. 200 (1976); DuPont v. Train,

430 U.S. 112 (1977); Natural Resources Defense Council

v. EPA, 537 F.2d 642 (2d Cir. 1976). But section 509(b)

(2) provides that:

Action of the Administrator with respect to which

review could have been obtained under paragraph

(1) of this subsection shall not be subject to judicial

review in any civil or criminal proceeding for en-

forcement.

33 U.S.C. §1369(b)(2). Indeed, the specific requirements

for individual permittees pursuant to section 402 and

the finality required by section 509(b)(2) were intended

to facilitate enforcement of the Act. See, EPA v. Cali

forma, 426 U.S. at 205.

In addition, section 402(k) provides that compliance

with the terms of an NPDES permit “shall be deemed

compliance” for purposes of enforcement actions brought

by the Administrator under section 309 and citizens under

section 505, with the principal discharge-control sections

of the Act. 33 U.S.C. $1342(k). The only exception to this

protection is for “any standard imposed under section

307 for a toxic pollutant injurious to human health.’’ Jd.

This section then “insulate[s] permit holders from changes

in various regulations during the period of a permit

and... relieve[s] them of having to litigate in an en-

forcement action the question whether their permits are

sufficiently strict.’ DuPont v. Train, 430 U.S. at 138, n.

28. This certainty is destroyed by the federal common law

of nuisance as an independent, judicial override of an

NPDES permit.

_ 99 —

Enforcement by ‘‘Citizens”

The legislative decisions made by Congress in the Act

are integrally related with the authorization of citizen

suits in section 505. By requiring the Administrator to

adopt regulations, by providing for the application of

the general statutory and regulatory requirements into

plant-specific NPDES permits and by stating that final

NPDES permits could not later be relitigated, Congress

created certainty for the water pollution control effort.

Citizen suits against dischargers and the Administrator

were allowed by section 505(a). But Congress was em-

phatic that citizen claims were not to go beyond the

requirements established via the administrative processes.

And it is clear that both a state and the Illinois Attorney

General are “citizens” under section 505. 33 U.S.C. $1365

(g); Illinois v. Outboard Marme Corporation, Nos. 79-

1341, 79-1725 (7th Cir. March 29, 1980).

The legislative history of section 505 begins in the

Senate in November, 1971. For purposes of its applica-

tion to the instant case, the commitee bill is identical to

that enacted. The committee report, S.Rep. No. 92-414,

92d Cong., Ist Sess. (1971), states its intent concerning

judicial acceptance of “citizen suits.”

Section 505 would not substitute a “common law”

or court-developed definition of water quality. An

alleged violation of an effluent control limitation or

standard would not require reanalysis of technological

in [sic] other considerations at the enforcement

stage. These matters will have been settled in the

administrative procedure leading to the establishment

of such effluent control provision. Therefore, an ob-

jective evidentiary standard will have to be met by

any citizen who brings an action under this section.

—

Id. at 79, 2 Legis. Hist. at 1497.1 Congress thus intended

that citizens use the federal administrative process to

establish necessary effluent limitations before suing in

federal court. See also, 33 U.S.C. $1365(b)(1)(A) (re-

quiring sixty days advance notice to the Administrator

before suit could be filed to compel performance of his

duties under the Act).

Furthermore, it is clear that Congress intended section

505 to provide an additional base of federal jurisdiction,

but that section 505 was not intended to allow citizens

to bypass the detailed and complex administrative scheme

created by the Act. Section 505(e) states:

Nothing m 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) (emphasis supplied). This provision

is identical to the 1971 Senate bill. 8. 2770, 92d Cong.,

1st Sess. §505(e) (1971); 2 Legis. Hist. at 1706; see also,

Clean Air Act of 1970, §304(e), 42 U.S.C. §$7604(e).

The plain meaning of the emphasized language is that

section 505 was not intended as the exclusive jurisdictional

basis for private actions concerning water pollution. But

the language clearly implies that the substantive statutory

criteria of the Act, including the limitations, standards

and other requirements to be prescribed by the Adminis-

* All citations to ‘‘Legis. Hist.’’ refer to ‘‘A History

of the Federal Pollution Control Act Amendments of

1972 (Committee Print, 1973).

iso sate

trator and the states under the Act, were to be the federal

rule of decision.

Moreover, the legislative history of section 505(e)

makes clear that this subsection was not intended as

Congressional acceptance of a substantive federal judicial

remedy and common law definition of acceptable water

quality. The Senate included section 505(e) in order to

preserve claims for damages based on the established

law of damages. The 1971 Senate report indicates that

traditional class action issues — the identity of the

parties, the allegations of a minimal jurisdictional amount

and the allocation of the damage award — were deemed

inappropriate considerations when citizens are seeking to

enforce water pollution controls. S. Rep. No. 92-414, 92nd

Cong., Ist Sess. 81 (1971); 2 Legis. Hist. at 1499. The

report states:

Thus, if damages could be shown, other remedies

would remain available. Compliance with require-

ments under this Act would not be a defense to a

common law action for pollution damages.

Id. The House report too, published in March, 1972,

paraphrases this portion of the Senate Report and states

that section 505 was not intended to pre-empt ‘‘other

relief under any statute or common law... .” H. Rep.

No. 92-911, 92d Cong. 2d Sess. 134 (1972); 1 Legis. Hist.

at 821. It was not until a month later that the “federal

common law of nuisance” for any dispute was adopted

by this Court in Illinois v. Milwaukee. And, we submit,

the ratio decidendi of that decision was the presence of

conflicting state interests and the need for an impartial

federal rule of decision, a forum provided by the 1972

Amendments and the present Clean Water Act. Further-

more, in light of a comparable provision in the 1970

a eo

Clean Air Act, section 505(e) was clearly not intended

to preserve the federal common law of nuisance.

Non-Point Source and Supplemental Controls

In addition to the extensive program to reduce dis-

charges from point sources, the Act contains several

programs to control non-point source pollution and reme-

dy eutrophication problems. Section 314 requires the

state to prepare and submit an inventory of fresh water

lakes according to their eutrophic condition to U.S. EPA

and directs U.S. EPA to provide funding sources for

methods (including land use planning) to restore the

quality of such lakes. 33 U.S.C. §1324(a). Section 108(d)

commanded an ambitious, and apparently successful, res-

toration of Lake Erie and directs the Administrator to

fund projects to demonstrate practical methods of re-

moving pollutants from and preventing pollutants from

entering the Great Lakes. 33 U.S.C. §1258(a). Basin and

regional planning (including multi-state areas) is required

to be developed in order to address areas with ‘‘substan-

tial water quality control problems.’’ 33 U.S.C. §§1288(a),

1289. And each state must identify priority areas for

which the 1977 requirements for technology-based effluent

limitations are inadequate ‘‘to implement any water

quality standard applicable to such waters ... .’’, iden-

tify the acceptable loadings from NPDF'S permit holders

into that body of water, and to provide for a continuous

planning process to meet these needs. Id. §1313(d)(1)(A),-

(d)(1)(C),-(e) (3).

Municipal Funding

The 1972 Amendments originally passed by Congress

were vetoed by President Nixon as too costly, princi-

pally because of the sums authorized for construction

— 26 —

of municipal treatment works. 1 Legis. Hist. at 137-139.

After the Congress overrode the veto, the President

impounded nearly half of these funds, an action which

was later held unlawful in Tram v. City of New York,

420 U.S. 35 (1975).

Congress has only authorized the payment to munici-

palities of a 75 per cent share of the costs recognized as

appropriate by the Act. 33 U.S.C. §1282(a). The size

and capacity of the proposed treatment facility must ‘‘re-

late directly to the needs to be served by such works, in-

cluding sufficient reserve capacity. ...’’ for future growth.

Id. §1284(a)(5). Thus primary and secondary treatment

of all stormwater flows is not recognized by U.S.EPA as

cost-effective and hence eligible for federal funding. EPA,

Office of Water Programs Operation, ‘‘Program Guidance

Memorandum 61,’’ PRM 75-34 (December 16, 1975).

Moreover, in response to comments made by the confer-

ence committee in the 1979 Appropriations bill, funding

of construction for advanced secondary treatment facil-

ities has been restricted by U.S.EPA. EPA, ‘‘Grant

Funding of Projects Requiring Treatment More Stringent

than Secondary’’, PRM 79-7 (March 9, 1979). Indeed,

this policy effects those facilities in Illinois required by

the Illinois Pollution Control Board to meet its effluent

standards of 10 mg/1 BOD and 12 mg/1 suspended solids.

See Illimois v. EPA, No. 79-3480, (D.D.C., filed .......0...00

1980).

The effect of a judge-made standard on municipalities

and their taxpayers can be onerous. Assume that the

funds for a hypothetical municipal treatment works would

cost $100 million and that the construction project is eligi-

ble for a $75 million federal grant, but that a federal

judge determines that additional control, at a cost of $25

ee hs

million, is appropriate to ‘‘abate a nuisance’’. The capi-

tal cost of $25 million must come from local funds, and

the municipality must alone pay for additional operating

costs, 33 U.S.C. §1284(a)(4). Moreover, the real cost

to the municipality, and its taxpayers would double in

this hypothetical, even though the federal judge increased

the total cost by only 25 per cent.

The presence of the municipal construction program

was an important political decision for Congress to make

in conjunction with enactment of the 1972 Amendments.

Congress has announced the importance of federal aid

to assist municipalities in attaining federal environmental

requirements. The lower federal courts ought not be.

authorized, under the banner of nuisance, to create their

own standards for discharge control.

2. Protection Of Ambient Air Quality —

The Clean Air Act

The other half of the rule announced in JIlinois v. Mi-

waukee concerns protection of air in its interstate or

ambient aspects. Like the Clean Water Act, the Clean

Air Act addresses the issue of control of pollution of

interstate or ambient air.

Control of Existing Stationary Sources

Section 109 directs the Administrator to adopt ‘‘pri-

mary’’ and ‘‘secondary’’ air quality standards for those

pollutants for which air quality criteria had been issued.

42 U.S.C. §7409(a). Primary air quality standards are

those necessary with an adequate margin of safety to

protect public health, while secondary standards are to

protect the public welfare from adverse effects associated

with the criteria pollutant. Jd. §7409(b). To attain and

a:

maintain the primary standards, and to achieve ultimately

applicable secondary standards, Congress has required the

states to submit ‘‘implementation plans’’ to the Adminis-

trator for approval. Id. §7410(a)(1); P.L. 95-95, §129(¢).

After a state implementation plan (‘‘SIP’’) is sub-

mitted, the Administrator proposes his action in the

Federal Register. If a public hearing was not held by

the submitting state, one must be held by U.S, EPA. 42

U.S.C. §7410(c)(1). Approval of the plan is subject to

review in the local circuit court of appeal. Jd. §7607(b) (1).

The federal question in approving a SIP is quite limited.

U.S. EPA may consider only the criteria specified in sec-

tion 110(a)(2). The most significant question is whether

the plan contains adequate enforceable requirements ‘‘to

insure attainment and maintenance’’ of the air quality

standards within the time period allowed by the Act.

See e.g., 42 U.S.C. §§$7410(a)(2)(A) ;-(B) ;-(1), 7502(a)

(1). Each state is free to select whatever mix of en-

vironmental controls it finds appropriate. U.S. EPA can

only evaluate whether the plan meets the requirements of

§110(a)(2). Natural Resources Defense Council v. Train,

421 U.S. 60 (1974); Union Electric v. EPA, 427 US.

(1976).

A necessary ingredient of any state implementation

plan is the protection of the interests of adjoining states.

Section 110(a)(2)(E) requires that a SIP contain:

adequate provisions (i) prohibiting any stationary

source within the State from emitting any air

pollutant in amounts which will (I) prevent at-

tainment or maintenance by any other State of any

such mational primary or secondary ambient air

quality standard, or (II) interfere with measures

required to be included in the applicable implementa-

a ae

tion plan for any other State under part C of this

subchapter to prevent significant deterioration of air

quality or to protect visibility, and (ii) insuring com-

pliance with the requirements of section 126 relating

to interstate pollution abtement;

42 U.S.C. §7410(a)(2)(E). Section 126 requires that

each adjoining state receive written notice of the existing

and new out-of-state sources which ‘‘may have”’ a signifi-

cant impact on ambient air quality in that state. Id. $7426

(a). The adjoining state may petition the Administrator

for a determination of whether or not ‘‘any major source

emits air pollutants in violation of section 110(a)(2)(E)

(i).’’ Id. §7426(b).

If the Administrator finds that plan does not include

the prescribed safeguards, he must disapprove the plan

and proceed to prepare and promulgate the necessary

regulations. Jd. §7510(a)(1). If a state or private citizen

believes the plan as approved by the Administrator to be

inadequate to achieve the ambient air quality goals, it

may be challenged. Jd, §7607(b)(1); Natural Resources

Defense Council v. Train, 421 U.S. 60 (1974).

Furthermore, section 126(c) states that any source that

does violate section 110(a) (2) (E) (i) is in violation of what-

ever SIP was approved for the state within which the

source is located, regardless of whether any permit has

been or would be issued by that state.? Hence, any state

may sue a source located in another state if that source

*As discussed in the following section, a permit is

required before major new or “modified facilities are

constructed. Moreover, many states, including Illinois,

require existing sources to obtain a permit to continue

operation, and condition receipt of a permit upon com-

pliance with state regulations. Chapter 2, Rule 103(a)

of Illinois Pollution Control Board.

<a inies

unduly affects its ambient air quality under Section 304

of the Act. The Administrator, however, may permit con-

tinued operations conditioned upon timely compliance. 42

U.S.C. $7426(c).

Construction of New or Expanded Facilities

Soon after the Clean Air Act of 1970 was adopted, the

Sierra Club sued the Administrator for failing to main-

tain existing air quality, particularly to protect relatively

pristine areas from degradation in air quality due to

new construction. The Sierra Club argued that such con-

trols were required as part of every SIP. The court agreed

and preliminarily enjoined U.S. EPA from approving

SIPs without a regulation protecting against degradation

to levels above secondary ambient air quality standards.

Sierra Club v. Ruckelshaus, 1344 F.Supp. 253 (D.D.C.

1972). The Court of Appeals affirmed in a memorandum,

unpublished order, and this Court by an equally divided

court, affirmed without opinion, Id., aff’d subnom., Fri

v. Sierra Club, 412 U.S. 541 (1973). U.S.EPA subsequently

promulgated regulations protecting ‘‘clean air’’ areas

against ‘‘significant deterioration’’ and included the regu-

lation in all state plans. 39 Fed. Reg. 42510 (1974). The

debate continued, and soon included the extent to which

new plants should be allowed to be built in areas where

the primary and secondary standards had not been at-

tained. On December 21, 1976, U.S. EPA published its ‘‘In-

terpretative Ruling’’ as to the circumstances under which

major new or expanded facilities could be built under the

Act. 41 Fed. Reg. 5524 et. seq. Despite these administra-

tive actions, the debates continued and were finally re-

solved by Congress in the 1977 Amendments to the Act.

P.L, 95-95 (1977).

a, pon

This legislation is significant because it directly con-

tradicts the basic premise of the common law of public

nuisance that actions which interfere with a public right

will be enjoined. Particularly with regard to non-attain-

ment areas, Congress rejected a prohibition on ‘‘new’’

pollution (construction of new plants or expansions of

existing facilities.) Instead, Congress enacted a detailed

scheme for progress toward attainment of the standards

while permitting even major new emitting facilities to be

built.

Subpart D now gives states until December 31, 1982

to attain most primary air quality standards, and in

some situations, until December 31, 1987 to attain the

standard for photochemical oxidants and carbon monoxide.

42 U.S.C. §7502(a). States must adopt requirements to

satisfy Part D as part of their amended implementation

plans. 7d. §7510(a)(2)(I); P.L. 95-95 §129(¢e). Only the

construction of new major emitting facilities (facilities

whose construction or expansion causes an increase of

more than 100 tons per year of any criteria pollutant)

is subject to Part D. 42 U.S.C. §$§7410(a)(2)(1), 7503(1)

(A), 7602(j). Construction of major emitting facilities

is to be authorized where equivalent offsets in emission

from other sources will be achieved by the time the new

facility begins operation, the allowable emissions from the

new or expanded source reflects the ‘‘lowest achievable

emission rate’’, other major emitting facilities under com-

mon ownership in the state are in compliance, reasonable

further progress toward ultimate attainment will not be

impeded, and the implementation plan is being carried

out. Id. §7503.

The 1977 Amendments also addressed the significant

deterioration issue, and again provided for adjoining

=

states to be heard concerning construction of new or

expanded facilities. The requirements of Part C are also

necessary elements of a state implementation plan. How-

ever, the Administrator has already promulgated revised

regulations in response to the Amendments, and has pro-

posed substitute regulations to conform to the interpreta-

tion of the Act given him by the Circuit Court of Appeals

for the District of Columbia in Alabama Power Co, v.

Costle, 606 F.2d 1068 (D.C.Cir. 1979).* In that case the

court held, mter alia, that Part C applied to new major

emitting facilities built in non-attainment areas, but only

if the attainment area affected was in another state.

Id. at 1084. The court noted the special attention given

by Congress to ‘‘interstate’’ air pollution and the extra

coverage of Part C for clean-air areas of another State,

citing the provisions of section 110(a)(2)(E)(i) and 126

discussed above. Id.

Judicial Review: Certainty, Finality and

Citizen Enforcement

The provisions for judicial review under the Clean

Air Act are comparable to those discussed above in the

Clean Water Act. Further, the case law under the 1970

Act, the 1977 Amendments and the basic complexity of

state implementation plans, achieve a result quite similar

to the legal effect of the NPDES program.

In Natural Resources Defense Council v. Train, 421 U.S.

60 (1974), this Court held that a state could issue, and

U.S.EPA could approve, variances from an approved im-

plementation plan, but only if those changes were ap-

proved as revisions to the SIP. The 1977 Amendments

*The State of Texas and District of Columbia were also

parties in this case.

"—

nen

specifically incorporated this requirement in §110(i). 42

U.S.C. §7410(i). Because an implementation plan is re-

viewable under §307(b)(1), it cannot later be collaterally

challenged Id. §7607(b)(2); City of Highland Park v.

Train, 519 F.2d 681, 697 (7th Cir. 1975). Thus, approval

of an implementation plan provides certainty and finality

as to the requirements needed to achieve the Congressional

goals,

Second, the effect of the Clean Air Act is to prohibit

judge-made definitions of common law air quality stan-

dards. The keystones of the act are the ambient air

quality standards, mandated for ‘‘criteria’’ pollutants,

under section 109(a). 42 U.S.C. §$7409(a) Review of

these standards is also provided for by section

307(b)(1); hence they too cannot be re-litigated in en-

forcement actions, either for being too strict or not strict

enough. See DuPont v. Train, 430 U.S. at 138, n. 28.

Administrative re-evaluation of these standards is re-

quired at five year intervals. 42 U.S.C. $7409(d).

Third, citizen enforcement is authorized against any

person who allegedly is in violation of an “emission stan-

dard or limitation’’ or an order of the Administrator or

a state concerning the standard or limitation. The words

‘femission standard or limitation’’ is a defined phrase

for purposes of section 304. It includes several specific

types of requirements established under the Act or by

an implementation plan, but does not include primary

or secondary air quality standards. Jd. §7604 (f).

Further, section 304(e) is a savings clause. But like

the Clean Water Act it simply states that ‘‘this section’’

is an exclusive remedy and uses the same words, ‘‘any

statute or common law’’ as found in section 505(e) of

pam, en

the Clean Water Act. Yet section 304(e) was drafted

in 1970 and enacted in December, 1970, long before

Illinois v. Milwaukee was even filed. Thus, it would be

extremely presumptuous in interpret the language, in

either statute, as a Congressional authorization for a

substantive judge-made body of environmental law parallel

to these statutes.

Motor Vehicle Emissions

An alleged anti-competitive restraint in the develop-

ment of motor vehicle emissions equipment was the sub-

ject matter of Washington v. General Motors Corp., 406

U.S. 109 (1972), decided the same day as IIlinots v. Mil-

waukee, Congress has now made clear that the timetable

for the development and installation of such equipment

is a legislative judgment. It has repeatedly adjusted the

timetable and requirements of Subchapter II, Part A, of

the Clean Air Act. 42 U.S.C. $§7521 to 7551. And it

has generally prohibited state regulation of new motor

vehicles which are subject to the act. Id. §7543(a), (ce).

3. The Resource Conservation and Recovery Acts

Enacted in 1976 as a complete amendment to the Solid

Waste Disposal Act (42 U.S.C. §3251 et. seq.), the Re-

source Conservation and Recovery Act (“RCRA”, 42

U.S.C. §6901 et. seq.) extends federal regulation far be-

yond interstate air and water pollution control. Con-

gress found that the prevailing practice of refuse dis-

posal in landfills, the greater quantities of solid waste

caused by air and water pollution treatment, the de-

creasing availability of disposal sites and the threat of

air and water pollution resulting from inadequate dis-

posal of solid and hazardous waste required immediate

a ae

action. Id. §6901(b). It directed the Administrator to

promulgate the most far-reaching set of federal environ-

mental regulations, prescribing standards for persons who

either generate, transport, treat, store or dispose of

‘‘hazardous waste.’’ The Act authorized the creation of

regional and multi-state agencies to formulate regional

plans for waste disposal, Jd. §§6904, 6941, 6942(a), 6946

(a), (c).

Comprehensive Federal Standards

Under section 3001, the Administrator must identify

the characteristics for identifying hazardous waste and

list particular hazardous wastes. 42 U.S.C. $6921(a), (b).

Any waste listed [see 45 Fed. Reg. 33119-33 (1980)], and

any person who handles such a waste, are subject io

stringent standards. The standards fit together as a

(cradle-to-grave) regulation of these materials. Generators

must keep records, prepare a proper manifest and pro-

perly label and prepare hazardous wastes for shipment.

42 U.S.C. §6922. Transporters are essentially expected to

insure that the labeling is proper, the manifest in order,

and to keep records and deliver the waste only to the per-

mitted treatment, storage or disposal facility identified in

the manifest. fd. §6923(a). Persons who treat, store or

dispose of hazardous wastes are subject to standards re-

quiring proper recordkeeping, reporting and self-monitor-

ing, requiring satisfactory treatment storage and disposal

practices, requiring financial responsibility generally and

contingency plans for unanticipated events, and obtain-

ing a permit to operate the site. Id. §§6924, 6925.

These regulations are truly awesome in their bulk, com-

plexity and stringency. See 45 Fed. Reg., May 19, 1980,

Parts I, III, V, VI, VII. For example, to be permitted

ee an

and to remain in operation all hazardous waste disposal

sites must deposit a sufficient reserve fund to pay for the

proper closing and sealing of the site when its use

ceases. 45 Fed. Reg. at 33243-44 (1980). And before any

active disposal site is closed, a sufficient fund must be

deposited to pay for monitoring, patrolling and other-

wise securing the site for thirty years. Jd; 40 C.F.R.

§$265.117(d), 265.144(a).

State Authority and Programs

Because this comprehensive regulatory structure is in-

tended to protect against land, air and water pollution

including contamination of any groundwater, the federal

program should provide sufficient protection against any

interstate disputes. While states may prepare their own

plans for the enforcement of the federal standards, these

programs must be equivalent to the federal program,

and provide adequate enforcement of compliance with the

federal requirements, and must not be inconsistent with

programs applicable in other states. Id. §6926(b), (e).

The states are prohibited from imposing ‘‘any require-

ments less stringent than the applicable federal require-

ments.” Id. §6929. The states may, in addition, submit

plans for the closure of open dumps and the application of

proper criteria for sanitary landfills for disposal of all

non-hazardous wastes. Id. §§6943, 6944, 6945. These planus

must meet federal guidelines that ‘‘insure the reasonable

protection of the ground and surface waters from leachate

contamination, the reasonable protection of the quality

of the surface waters from surface runoff contamination,

and the reasonable protection of ambient air quality.’ Id.

pall sn

§6942(b)(1).* Final agency action approving these pro-

grams is reviewable.

Judicial Review and Citizen Participation

Like the Clean Air and Water Acts, RCRA permits

citizens to sue the Administrator where he has failed

to perform a nondiscretionary duty. 42 U.S.C. §6972(a)

(2). RCRA creates more mandatory duties than either

the air or water acts: the Administrator has a duty to

promulgate the several sets of regulations to implement

the hazardous waste programs under subtitle C, and

duties under subtitle D to establish various guidelines for

supplemental state plans to control non-hazardous wastes

and to upgrade open dumps. Several private groups, in-

cluding the Illinois Attorney General, have used this pro-

vision to hasten final administrative action.

The final regulations are made judicially reviewable

in the Cireuit Court of Appeals for the District of Colum-

bia. But these rules cannot later be challenged in an

enforcement proceeding. Jd. §6976(1). Additionally, ‘‘any

person may petition the Administrator for the promul-

gation, amendment or repeal of any regulations under this

Act,’’ and special provision is made for a Governor to

request the Administrator to identify or list a material as

a hazardous waste. Id. §§6974(a), 6921(¢c). Public par-

ticipation in all phases of the program ‘‘shall be pro-

vided for, encouraged and assisted by the Administrator

and the States.’’ Id. §6974(b).

‘In addition to the protection provided by RCRA and

the Clean Water Act, the Safe Dinking Water Act, 42

U.S.C. §300 et seg., provides protection for potable

water, as contrasted with the conditions of ambient water

which composes the raw intake source.

oe

Thus, RCRA provides for comprehensive and _ final

federal standards to guide states and interstate agencies

in protecting groundwater, surface water and the ambient

air against. unreasonable contamination. It encourages

public participation and guarantees that the federal courts

will review administrative action to assure its conformance

to the legislative commands, RCRA is another compre-

hensive scheme for the control of waste materials.

4. Regulation of Chemicals to Avoid Unreasonable Risks

to Health and the Environment (FIFRA and TSCA)

Both the Federal Insecticide, Fungicide and Roden-

ticide Act (“FIFRA”, 7 U.S.C. $135 et. seq.) and the

Toxic Substance Control Act (‘‘TSCA’’, 15 U.S.C. §2601

et. seq.) deal with licensing chemical products before use,

and restrictions upon their use and disposal. The purpose

of both statutes is to avoid unreasonable risks of injury

to the environment. In contrast to the preceding statutes

which focus on controls of waste products, these acts re-

present an environmental planning approach.

The present version of FIFRA was enacted October 21,

1972, three days after final passage of the Federal Water

Pollution Control Act of 1972. Administration of FIFRA

was transferred from the Department of Agriculture to

U.S.EPA. The pre-existing regulations, however, con-

tinued in affect for four years. Sales of unregistered

‘feconomic poison’’ were declared unlawful, 7 U.S.C. §135

(a), as were sales of any poison not stored in its original

container. Judicial review is provided for anyone ad-

versely affected by these regulations. 7 U.S.C. §135b(d).

Registration of all pesticides is required. 7 U.S.C.

§135a(a). Extensive disclosure statements regarding the

as ee

composition of the substances must comply with specific

data requirements. 7 U.S.C. §136a(c)(2). A pesticide

becomes registered when it has met the criteria announced

in the statute. 7 U.S.C. $136a(c)(5), (6). Provision is

made for a system of pesticide classification and definition.

7 US.C. $136a(d). The statute places specific controls

upon anyone who uses pesticides in a restricted manner.

7 U.S.C. §136b(a). Procedures for administrative review,

7 U.S.C. §136d(a), and judicial review, 7 U.S.C. §136n,

assure that citizen and industry viewpoints will be con-

sidered in the registration process, and that special or

unique circumstances can be addressed.

The Toxic Substances Control Act governs the manu-

facture, distribution, and use of essentially all chemical

substances not already regulated by other federal agen-

cies. 15 U.S.C. §2602(2). The statute requires a preman-

ufacture notice to U.S.EPA and testing by the manufac-

turer or processor to demonstrate that the proposed use

of the chemical will not pose an unreasonable risk of in-

jury to human health or the environment. Jd, $2604(a),

(b). A notice of the receipt of a pre-manufacture ap-

plication must be placed in the Federal Register. 15 U.S.C.

§2604(a), (b). The U.S.EPA is authorized to regulate

the manner in which new and existing chemical substances

are used. 15 U.S.C. $2605(a). The statute grants citizen

rights to enforce both the pre-manufacture notices and

the use regulations, and to compel U.S.EPA to take

mandatory actions. 15 U.S.C. §2619. In addition, a citizen

can petition U.S.EPA to perform its duties or adopt a

rule, and can appeal the denial of a petition. 15 U.S.C.

§2620(a), (b)(4)(A).

rem

5. Federal Restraints on Major New Developments

Another form of ‘‘nuisance-prevention’’ is found is

several federal statutes and their implementing regula-

tions which restrain development of certain environmental

areas. We mention here only a few.

As noted above, the Clean Water Act contains require-

ments for regional planning for growth and the ability

of stream segments to handle effluent loadings. 33 U.S.C.

§§1288(b), 1313(d). Any dredging or filling activities in

protected wetland areas must be permitted before they

are begun, Id. §1344. The Clean Air Act Amendments of

1977 contain significant new requirements for the con-

ditions under which any major new or expanded indus-

trial facility may be constructed. Varying degrees of

development are permitted in clean air areas based upon

the allowable increment, which defines the allowable degree

of air quality deterioration. These increments in turn

depend upon the land use of the affected area. 42 U.S.C.

§§7472, 7473(b), 7474, 7476(d) (2) (C) (iv), 7475(d) (2)

(D) (ii), 7491(a) (1).

Other statutes contain additional landuse controls or

incentives for state control pursuant to Congressional

criteria. Complementing the new direct controls on coastal

wetland development are the ancient requirements of

sections 10 and 13 of the 1899 Rivers and Harbors Act.

33 U.S.C. §§403, 407, 13844. Congress has also given the

coastal states a fiscal incentive to develop coastal zone

plans by its enactment of the Coastal Zone Management

Act of 1972. 16 U.S.C. $1451 et. seq. Under the Act, im-

plementation depends upon coastal states submitting land

use programs for their coastal zones. The administrative

criteria for approval of these state plans provide that

nities

local and regional uses which depend upon a coastal loca-

tion are to be preferred to non-coastally dependent uses.

See generally, 15 C.F.R. §923.12(¢e)(4), (¢)(5), (d)(3),°

(d) (4), (d)(5), 923.22(a), 923.52(f) (Table 1) (1979). In-

terestingly, Wisconsin has adopted the necessary state

legislation to implement such land use controls, while

the Illinois General Assembly refused to enact the re-

quisite state planning authority. E.g., 44 Fed. Reg. 52712.

Surely a decision by the entity to whom Congress has

chosen to delegate the discretion to implement a statute

should be respected. It would be a gross usurpation of

power, for example in the coastal zone situation, for a

federal court to fashion a nuisance theory based upon the

‘‘federal interest’’ expressed in the Coastal Zone Manage-

ment Act. Such an approach effectively disregards Con-

gress’ decision to authorize, but not to mandate implemen-

tation. Indeed, discretionary implementation frequently

is a key element in passage of any other statute, and

may be especially true of the Coastal Zone Management

Act.

Thus, the courts should strictly observe the terms of

the statute, and not read into the act a ‘‘good’’ result

or create their own substantive body of law, except in

the most compelling of circumstances. See, Ernst d Ernst

v. Hochfelder, 425 U.S. 185, 197 (1976); cf. Wheedlin v.

Wheeler, 373 U.S. 647, 651 (1963) (the instances where

federal common law will be recognized are few and re-

stricted. )

Finally, this Court must consider the judicial role as

exemplified by the National Environmental Policy Act

(‘“NEPA’’, 42 U.S.C. §4331 et. seqg.). The command of

NEPA embodies a general policy of protection of natural

ee

resources. Because of the numerous instances of federal

regulation and NEPA’s applicability to most actions by

federal agencies, NEPA is perhaps the most litigated

federal statute concerning conservation of the environ-

ment. Numerous federal courts have found a federal in-'

terest in the environment based upon NEPA, and from

that basis derived a substantive federal remedy. But

this Court has consistently held that NEPA provides

no substantive judicial remedies. Instead, the judicial

function requires that courts subject agency decisions

affecting the environment to a close review to determine

that the agency did seriously consider the environmental

impact of its decision. See Strycker’s Bay Neighborhood

Council, Inc. v. Karlen, ........ | 3 & Reece , 100 S.Ct. 497

(1980); Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, 485 U.S. 519 (1978); Kleppe

v. Sierra Club, 427 U.S. 390 (1976). Hence, the lack of

authority for the lower federal courts to create a sub-

stantive requirement based on ‘‘nuisance’’ must also be

declared.

C. The Court Should Hold That Congress Has Displaced

The Federal Common Law Of Nuisance

The separation of powers doctrine is a basic tenet of

federal constitutional law. Two recent decisions by this

Court apply this doctrine to facts analagous to the

present situation. The rule of Mobil Oil Corp. v. Hig-

ginbotham, ........ a wants , 98 S.Ct. 2010 (1978) and

Arizona v. California, 373 U.S. 546 (1963) is that when

Congress has enacted a statute which applies to the

subject matter of disputes previously governed by sub-

stantive standards of liability created by federal courts,

the federal common law remedy is displaced and the case

must be decided by the statutory formula. This rule is

aay. ee

but an application of Erie Railroad v. Tompkims, 304

U.S. 64 (1938), to give the same federal judicial respect

to Congress as Erie and its progeny have commanded

be given to the states. Indeed, to sanction at this time

a federal common law of nuisance is to resurrect the

discredited ‘‘brooding omnipresence’’ of Swift v. Tyson,

16 Pet. 1 (1842). Guaranty Trust Co, v. York, 326 US.

99, 102 (1945). Because Congress has enacted applicable

legislation to protect the environment, including the pro-

visions of the Clean Water Act which directly apply

to the present dispute, there is no constitutional’ basis

for a federal common law of nuisance.

This Court acknowledged that a Congressional statute

could displace the federal common law of nuisance in

the environmental area in Illinois v. Milwaukee when the

Court stated:

It may happen that new federal laws and new federal

regulations may in time pre-empt the field of federal

common law of nuisance.

406 U.S. at 107.

On the basis of the earlier Illinois v. Milwaukee opinion,

this Court should now recognize that the federal com-

mon law of nuisance has been displaced by Congressional

actions and policy-making. The environmental statutes

outlined above are complex and provide an integrated

federal program to protect the environment. Because

Congress has chosen to harness the expertise of the Ad-

ministrator and U.S. EPA, and other federal and state

agencies, to formulate initially the specified degree of

environmental protection, the need no longer exists for

a federal common law of nuisance.

Since 1972, Congress has assembled a _ wide-ranging

administrative scheme for environmental regulation. Sub-

pe

stantively, these administrative standards include controls

upon point and non-point sources of pollutants to waters of

the United States, new and existing stationary sources of

pollutants to the ambient atmosphere, emissions from new

motor vehicles, acceptance of chemicals and uses of chem-

icals, appropriate methods for the control of waste prod-

ucts from industries and municipalities, and the acceptable

locations for construction of new and larger manufacturing

facilities. ~Procedurally, the statutes include specific mech-

anisms for the resolution of complaints by one state

against pollution or discharges from a facility located in

another state, for participation by any affected person in

the administrative process by which environmental stan-

dards are adopted, for direct administrative and citizen

enforcement of established standards, for the finality of

the principal administrative standards, and for the efficient

use of judicial resources, either by immediate judicial re-

view of these administrative standards, or specific judicial

enforcement of final standards. The statutory and ad-

ministrative processes thus provide certainty and facilitate

the orderly and efficient planning by municipalities and

industry for the installation of appropriate pollution con-

trol equipment and activities.

To allow a federal common law of nuisance to remain

is to permit a judicial override of Congressional and’

administrative procedures. In light of the extensive

rights for citizen and state participation and enforcement,

there is no need for this judicial override. Further,

such an assertion of judicial authority destroys the signi-

ficance and the incentive for participation in the Congres-

sional program, and sanctions the creation of a ruling

body of federal judge-made law.

gil ites

Further, if this Court applies the federal common law

of nuisance in place of this vast Congressional program,

all environmental disputes, even wholly intrastate, can

become federal claims, Illinois v. Outboard Marine Corp.,

Nos. 79-1341, 79-1725 (7th Cir. March 20, 1980), 14 E.R.C.

1281, and cases cited therein at 1286. Every environment-

tal complaint (even neighbor versus neighbor) would

then present a federal question, dramatically expanding

the role of the lower federal courts, and drastically in-

creasing their already over-crowded dockets.

CONCLUSION

For the foregoing reasons, the Illinois State Chamber

of Commerce respectfully submits that the time has come

for this Court to hold that the federal common law of

nuisance has been displaced by Congressional action.

Respectfully submitted,

Martin, Craic, CHEster, &

SONNENSCHEIN

Attorneys for Illinois State Chamber

of Commerce

Ricuarp J. Kissen

JEFFREY C. Fort

Joanna C. New

Martin, Craic, CHEester &

SoNNENSCHEIN

115 South LaSalle Street

Suite 2400

Chicago, Illinois 60603

(312) 368-9700

Of Counsel