# Amicus Brief — Milwaukee v. Illinois > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2154%3A22 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1981 - **Citation:** 451 U.S. 304 ## Text 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.