Amicus Brief — Milwaukee v. Illinois

No. 79-408.

IN THE

Supreme Court of the Unite

OcTOBER TERM, 1979.

CITY OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE, anp

THE METROPOLITAN SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE,

PETITIONERS,

v.

PEOPLE OF THE STATE OF ILLINOIS, anp

PEOPLE OF THE STATE OF MICHIGAN,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Brief of Amicus Curiae, New England Legal Foundation,

in Support of Respondents.

WILLIAM W. BECKER,

LANDFIELD, BECKER & GREEN,

S.zite 1050,

1819 H Street, N.W.,

Washington, D.C. 20006.

(202) 293-1919

Wayne S. HENDERSON,

RosBert R. Ruppock,

New England Legal Foundation,

110 Tremont Street, *

Boston, Massachusetts 02108.

(617) 482-1410

ADDISON C. GETCHELL & SON, INC. . THE LAWYERS’ PRINTER - BOSTON

Table of Contents.

Interest of Amicus Curiae

Summary of Argument

Argument

I. The Federal Common Law Provides a Federal

Judicial Definition and Vindication of Rights in

Matters of Federal Concern Or Relationship

A. The Federal Common Law Is Available to

Ensure the Rights of a State to the Exer-

cise of Its Police Powers, and to the Con-

trol of Its Own Ecological Destiny, Against

Impairment from Outside Sources

B. The Federal Common Law Is Available to

Articulate the Federal Interest in Main-

taining the Purity of the Nation’s Air and

Waters

II. The Federal Common Law Applicable in the In-

stant Case Was Not Preempted by the Federal

Water Pollution Control Act

A. Federal Statutes Are Not To Be Construed

as Preempting the Federal Common Law

Or the State Rights Vindicated Thereby

Absent a Clear Expression of Preemptive

Intent

B. The Federal Water Pollution Control Act

Displays a Clear Congressional Intent to

Preempt Neither the State Police Power

nor the Federal Common Law

C. Where States Have an Express Statutory

Right to Set Varying Pollution Control

Standards, Only a Federal Common Law

Means of Resolving an Unreasonable In-

terstate Interference with Those Stand-

ards Can Prevent the Likelihood of Inter-

state Industrial Competition at the Ex-

pense of Environmental Quality

ii TABLE OF AUTHORITIES CITED.

III. Subsequent Judicial Interpretations of the Rule

of Illinois Have Seen Some Variation Which

Warrants Clarification by This Court 23

Conclusion 29

Table of Authorities Cited.

CASES.

Askew v. American Waterways Operators, Inc., 411

U.S. 325 (1973), reh. denied, 412 U.S. 933 (1973) 14

Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398

(1964) 12

Byram River v. Village of Port Chester, 7 E.R.C. 1127

(D. Conn. 1974), 394 F. Supp. 618 (S.D. N.Y. 1975) 27n.

California Tahoe Regional Planning Agency v.

Jennings, 594 F. 2d 181 (9th Cir. 1979) 24n.

City of Evansville v. Kentucky Liquid Recycling, Inc.,

604 F. 2d 1008 (7th Cir. 1979), cert. denied,

— U.S. —, 48 U.S.L.W. 3436 (January 8,

1980) 17n., 24n., 25

Clearfield Trust Co. v. United States, 318 U.S. 363

(1943) 11

Committee for the Consideration of the Jones Falls

Sewage System v. Train, 539 F. 2d 1006 (4th Cir.

1976) 25, 27, 28

Commonwealth of Massachusetts v. United States

Veterans Administration, 541 F. 2d 119 (1st Cir.

1976) 26

Connecticut v. Levi Strauss & Co., 471 F. Supp.

363 (D. Conn. 1979) 14

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) 5,9

TABLE OF AUTHORITIES CITED. iil

Georgia v. Tennessee Copper Company, 206 U.S. 230

(1907) 8,9, 10, 12

Getty Oil Co. v. Ruckelshaus, 467 F. 2d 349 (8d Cir.

1972) 17n.

Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S.

366 (1976) 13

Hinderlider v. La Plata River and Cherry Creek Ditch

Company, 304 U.S. 92 (1938) 9, 12, 25n.

Huron Portland Cement Co. v. City of Detroit, 362

U.S. 440 (1960) 13, 14n.

Illinois v. Milwaukee, 406 U.S. 91 (1972) 3, 4, 5, 6, 9, 10,

11, 12, 18, 17, 18n., 19, 23, 76

Illinois v. Milwaukee, 4 E.R.C. 1849 (N.D. Ill. 1972) 3n., 4

Illinois v. Milwaukee, 599 F. 2d 151 (7th Cir.

1979) 3n., 4, 24, 25

Illinois v. Outboard Marine Corporation, — F. 2d —,

14 E.R.C. 1281 (7th Cir. 1980) 26, 28

In Re Debs, 158 U.S. 564 (1895) 10, 12

Isbrandtsen Co. v. Johnson, 3438 U.S. 779 (1952) 15

Michie v. Great Lakes Steel Division, 495 F. 2d 213

(6th Cir. 1974), cert. denied, 419 U.S. 997 (1974) 27n.

Minnesota v. Reserve Mining Co., 419 U.S. 802(1974) 11,12

Missouri v. Illinois, 180 U.S. 208 (1901) 7, 8, 10

National Sea Clammers Association v. City of New

York, 616 F. 2d 1222 (3d Cir. 1980), petition for 17n., 24n.,

cert. filed, 48 U.S.L.W. 3752 (May 20,1980) 25n., 26-27

New England Legal Foundation v. Costle, 475 F. Supp.

425 (D. Conn. 1978), aff'd in part, reserved in part,

— F. 2d — (2d Cir. May 20, 1980) 2;21, 27

New Jersey v. New York, 283 U.S. 336 (1931) 12

iv TABLE OF AUTHORITIES CITED.

N.R.D.C. v. Train, 510 F. 2d 692 (D.C. Cir. 1975) 17

Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493

(1971) 8

Parsell v. Shell Oil Company, 421 F. Supp. 1275 (D.

Conn. 1976), aff’d sub nom. East End Yacht Club v.

Shell Oil Co., 573 F. 2d 1289 (2d Cir. 1977) 25

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) 15

Reserve Mining Co. v. Environmental Protection

Agency, 514 F. 2d 492 (8th Cir. 1975) 25-26

Sierra Club v. Morton, 405 U.S. 727 (1972) 16, 17n.

State of Texas v. Pankey, 441 F. 2d 236 (10th Cir.

1971) 6, 9, 10, 12, 23

Stream Pollution Control Board of Indiana v. U.S.

Steel Corp., 512 F. 2d 1036 (7th Cir. 1975) 23, 24

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

(1957) 11

Township or Long Beach v. City of New York, 445

F. Supp. 1203 (D. N.J. 1978) 24n., 25n.

United States v. Ira S. Bushey & Sons, Inc., 346

F. Supp. 145 (D. Vt. 1972), and 363 F. Supp. 110

(D. Vt. 1973) “ 24n.

United States v. Stoeco Homes, Inc., 498 F. 2d 597

(3d Cir. 1974), cert. denied, 420 U.S. 927 (1975) 24

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

(1972) 17, 18n.

CONSTITUTIONAL PROVISIONS.

United States Constitution:

Article I, 48 5,11

Article III 5,7

Article VI, cl. 2 13n.

TABLE OF AUTHORITIES CITED. Vv

STATUTES.

Clean Air Act Amendments of 1970, 42 U.S.C. § 1857,

42 U.S.C. § 1857h-2(e); recodified to 42 U.S.C.

§ 7604(e) 14n., 17, 27

Federal Water Pollution Control Act (FWPCA), 4,5, 11,

33 U.S.C. §§ 1251, et seq. 13, 14, 15, 17n., 18, 19, 20,

21, 24, 26, 27, 29

Section 101(a), 33 U.S.C. § 1251(a) 20

Section 101(b), 33 U.S.C. § 1251(b) 14n., 20

Section 101(e), 33 U.S.C. § 1251(e) 16n.

Title II, 33 U.S.C. Subchapter II 20n.

Section 301, 33 U.S.C. § 1311 20n.

Section 303, 33 U.S.C. § 1313 20n.

Section 304, 33 U.S.C. § 1314 20n.

Section 306, 33 U.S.C. § 1316 20n.

Section 307, 33 U.S.C. § 1317 20n.

Section 309, 33 U.S.C. § 1319 20n.

Section 312(f), 33 U.S.C. § 13822(f) 15

Section 505, 33 U.S.C. § 1365 16, 20n.

Section 505(e), 33 U.S.C. § 1365(e) 4, 16,17, 18, 20, 28

Section 510, 33 U.S.C. § 1370 4,18

Section 511(a), 33 U.S.C. § 1371(a) 4,19

Federal Water Quality Control Act of 1970,

33 U.S.C. §§ 1151 et seq. 14

National Environmental Policy Act (NEPA),

42 U.S.C. §§ 4321, et seq. 13, 20, 26

vl TABLE OF AUTHORITIES CITED.

LEGISLATIVE PROVISIONS AND HISTORY.

S. 2770, 92d Cong., 1st Sess. 16n.

H.R. 11896, 92d Cong., 2d Sess. 16n.

S. Rep. No. 92-414, 92d Cong., 1st Sess. (October

28, 1971) 16

H. Rep. No. 92-911, 92d Cong., 2d Sess. (March 11,

1972) & 16, 19

S. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess.

(September 28, 1972) 16, 19

‘“‘A Legislative History of the Water Pollution Control

Act Amendments of 1972,”’ Environmental Policy

Division of the Congressional Research Service of

the Library of Congress, 93d Cong., 1st Sess.

(January, 1973) 16, 18n., 21

OTHER AUTHORITIES.

Note, Federal Common Law and Interstate Pollution,

85 Harv. L.Rev. 1439 (1972) 6n.

The Federalist No. 80 (A. Hamilton) (Dawson ed.

1863) 7

Woods and Reed, The Supreme Court and Interstate

Environmental Quality: Some Notes on the

Wyandotte Case, 12 Ariz. L.Rev. 691 (1970) 7n.

No. 79-408.

IN THE

Supreme Court of the United States.

OcTOBER TERM, 1979.

CITY OF MILWAUKEE, THE SEWERAGE

COMMISSION OF THE CITY OF MILWAUKEE, anp

THE METROPOLITAN SEWERAGE COMMISSION OF

THE COUNTY OF MILWAUKEE,

PETITIONERS,

Vv.

PEOPLE OF THE STATE OF ILLINOIS, anp

PEOPLE OF THE STATE OF MICHIGAN,

RESPONDENTS.

ON WRIT OF CERTIORARI TO THE UNITED STATES CO! OF APPEALS

FOR THE SEVENTH CIRCUIT.

Brief of Amicus Curiae, New England Legal Foundation,

in Support of Respondents.

Interest of Amicus Curiae.

New England Legal Foundation (NELF) is a non-profit,

tax-exempt corporation, organized and existing under the

laws of the Commonwea!th of Massachusetts for the purpose

of representing the public interest of the people of the six

New England states in judicial or administrative proceedings

which affect the economy and environment of New England.

Policy for NELF is established by a Board of Directors com-

posed of citizens, a majority of whom are attorneys, from

each of the New England states.

2

NELF has long been interested in the proper accommoda-

tion of both public and private interests in the maintenance of

a healthful environment and the stimulation of a sound

economy. The purchase of industrial development at the ex-

pense of environmental protection provokes a need for a

determination of the appropriate balance between the com-

peting interests, and the equitable apportionment of the costs

of the solution chosen. In an effort to help define that proper

and equitable balance, NELF has actively participated in

numerous administrative and judicial proceedings treating

these issues.

NELF is also the primary party plaintiff in New England

Legal Foundation v. Costle, 475 F. Supp. 425 (D.Conn. 1978),

affd in part, reserved in part, — F. 2d — (2d Cir. May 20,

1980). That case involves allegations of harmful interstate air

pollution, and one cause of action under the federal common

law of nuisance closely analogous to the case at bar has been

reserved for further briefing and judgment by the Second

Circuit Court of Appeals, pending the decision of this Court

in the instant case. This Court’s ruling, therefore, is likely to

have a direct bearing upon the outcome of New England

Legal Foundation v. Costle, and upon the rights of NELF and

its co-plaintiffs in that litigation.!

NELF believes that federal pollution control statutes deal-

ing with both air and water emissions were intended by Con-

gress only to provide a uniform minimum level of pollution

control throughout the fifty states, but without infringement

of the common law right of each state or municipality to con-

trol activities affecting its air, land, or waters, insofar as the

exercise of such right shall not interfere with the federally

1 The named plaintiffs in that case include NELF, Connecticut

Business and Industry Association, Connecticut Conference of

Municipalities, 31 separately named Connecticut municipalities,

and 3 individual citizens of the state.

3

mandated minimum level of control. That right is rooted in

the basic tenets of our federalist system and the fundamental

doctrines of property use.

New England Legal Foundation supports the decision of

the Seventh Circuit Court of Appeals in the case at bar, and

respectfully urges its affirmance.

Summary of Argument.

When Illinois v. Milwaukee, 406 U.S. 91 (1972)

(‘Illinois’)? found federal question jurisdiction in the conflict

between Illinois’ assertion of its environmental and public

health interests and the land use and municipal finance con-

siderations inherent in Milwaukee’s system of sewage treat-

ment and disposal, it did so on two grounds. The Court found

a federal interest in the intergovernmental nature of the con-

flict, as well as in the national environmental interest ex-

pressed in various federal environmental legislation.

NELF contends that neither facet of the common law right

recognized by this Court in Illinois has been preempted or

otherwise limited by subsequent statutory amendment or

federal regulation, except insofar as such enactments may of-

fer guidance in the creation of a remedy consistent with

federal policy. NELF does not believe that the remedy

prescribed by the District Court and modified by the Circuit

Court is inconsistent with the expressed federal policies of

protecting the public health and the national environment,

and of preserving the rights of states to set water quality

standards more stringent than the uniform federal minimum

2 Prior decisions in the instant litigation will be referred to as

follows: Illinois v. Milwaukee, 406 U.S. 91 (1972), as “‘Illinois’’; Il-

linois v. Milwaukee, 4 E.R.C. 1849 (N.D. Ill. 1972), dealing with

questions of jurisdiction and venue, as “‘Jllinois ID’; and Illinois v.

Milwaukee, 599 F. 2d 151 (7th Cir. 1979), the decision presently

before this Court on review, as “‘Jllinois IIT’.

4

standards. NELF supports the arguments on personal

jurisdiction and venue advanced by the Respondents herein,

and espoused by the Courts in Jllinois II, 4 E.R.C. at 1850,

and Illinois III, 599 F. 2d at 155-57, but will not present fur-

ther argument on these issues. NELF takes no position on

the evidentiary support for the factual finding of nuisance,

nor on the propriety or adequacy of the equitable relief

granted.

In enacting the Federal Water Pollution Control Act, 33

U.S.C. §§ 1251, et seg., Congress intended to continue the

system of cooperative federalism previously relied upon to

control pollution of interstate and navigable waters, while in-

creasing the federal demands upon and inducements to the

states more actively to assume their front-line role in the

process. It was made amply clear throughout the Act, and

particularly in §§ 505(e), 510 and 511, that neither aspect of

the federal common law recognized in Jllinois—neither the

federal concern nor the federal relationship implicated by the

allegations of pollution of navigable waters—was intended to

be preempted by the statute.

Several aspects of the federal common law of nuisance set

forth in Illinois remain subject to some uncertainty and

disagreement in the courts. Whether the presence of in-

terstate effects must be alleged, or whether pollution of

navigable waters or ambient air is sufficient—whether suit

must be instituted by a state, or whether it is available to a

municipality or a private party—whether the interests of a

state must be implicated in such a suit, or whether the na-

tional environmental interest may be invoked by a private

party—all are questions whose answers may not be essential

to a closely drafted decision in the case at bar. NELF,

however, respectfully submits that the Court’s decision in

this case presents an opportunity to amplify the reasoning of

Illinois, and to offer guidance to the Circuits on these issues

of differing interpretation.

5)

Argument.

I. THE FEDERAL COMMON LAW PROVIDES A FEDERAL JUDICIAL

DEFINITION AND VINDICATION OF RIGHTS IN MATTERS OF

FEDERAL CONCERN OR RELATIONSHIP.

Consideration of the effect of a statutory scheme upon a

predecessor common law right and remedy suggests an un-

derstanding of the nature of the preexistent right and the

purpose and authority of the subsequent statute. NELF sub-

mits that analysis of both the common law right asserted by

this Court in Jllinois and the Federal Water Pollution Con-

trol Act compels the conclusion that the cause of action ex-

pressed by Illinois was not preempted or otherwise

restricted by the statute.

Far from promulgating a federal common law of nuisance

for ambient or interstate pollution, the opinion of Mr. Justice

Douglas in Jllinois recognized that the controversy alleged

fell among those specialized areas in which the federal com-

mon law survived the general limitation of Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938). Illinois found justification for

the exercise of the federal judicial lawmaking power in the

presence of ‘‘matters of federal concern [‘where there is an

overriding federal interest in the need for a uniform rule of

decision,’ at 105 n.6] and relationship” [‘or where the con-

troversy touches basic interests of federalism,’ id.]. 406 U.S.

at 99. The issues of ‘‘federal concern’”’ are derived from

statutory expressions of federal interest in pollution, the en-

vironment, and the nation’s interstate and navigable waters,

and ultimately rely upon the delegation of power contained in

the Commerce Clause, Article I, § 8, of the Constitution. The

“basic interests of federalism’’ recognized in Illinois,

however, are not expressly stated in the Constitution, but are

implicit throughout and lie at the very roots of Article III.

6

They are descendant of the quasi-sovereign powers reserved

by the states, and the necessary provision of a peaceful

means for the ordering of those powers required by the crea-

tion of a union between the states.

The Jllinois court not only reaffirmed the existence and

authority of the federal law to resolve conflicting exercises of

the state police power, but properly broadened the scope of

that area of federal concern to accommodate the national in-

terest in the maintenance of environmental quality, an in-

terest which has found increasing expression in the federal

environmental statutes of the past decade.

A. The Federal Common Law Is Available to Ensure the

Rights of a State to the Exercise of Its Police Powers, and to

the Control of Its Own Ecological Destiny, Against Impair-

ment from Outside Sources.

The “controlling principle” cited by Mr. Justice Douglas in

Illinois—that the federal judicial lawmaking power applies to

“matters of federal concern and relationship’’—was taken

from State of Texas v. Pankey, 441 F. 2d 236, 240 (10th Cir.

1971). The matter of ‘federal concern and relationship”’

which Pankey found to be at the root of the Texas-New Mex-

ico caterpillar war was the improper impairment of the

natural resources and environment of a state by acts done

outside its boundaries. The Court there relied upon the ©

federalist notion—federalist in that it concerns the structure

of the federation and the ordering of the interrelations of its

constituent members, rather than federal in the sense of con-

cerning the delegated central governmental powers*—that

each state retains a quasi-sovereign right in the conditions of

its land, water and air. When the exercise of that right may

collide with the exercise of a similar right by another state,

3 Note, Federal Common Law and Interstate Pollution, 85 Harv.

L.Rev. 1489, 1444 (1972).

7

the very nature of the federalist system, even in the absence

of any specific Constitutional delegation of authority,

demands that the courts of the central government deter-

mine the proper and peaceful resolution of the conflict. It is

as much the nature of the party as the right asserted which

by this analysis evokes the demand.

The federalist underpinning for the exercise of the federal

common law in interstate pollution disputes evolved from the

jurisdiction of the federal courts over questions of state

sovereignty inherent in boundary disputes. Missouri v. II-

linois, 180 U.S. 208 (1901). The Constitutional provision

relied upon in these cases was the Article III grant of ex-

clusive Supreme Court jurisdiction in suits involving states,

and the rationale for federal equity jurisdiction was offered in

The Federalist No. 80:

Whatever practices may have a tendency to disturb the

harmony between the States, are proper objects of

Federal superintendence and control.

... And if it be a just principle that every Government

ought to possess the means of executing its own provi-

sions, by its own authority, it will follow, that in order to

the inviolable maintenance of that equality of privileges

and immunities to which the citizens of the Union will be

entitled, the National Judiciary ought to preside in all

cases in which one State or its citizens are opposed to

another State or its citizens. To secure the full effect of

so fundamental a provision against all evasion and sub-

terfuge, it is necessary that its construction should be

committed to that tribunal, which having no local attach-

ments will be likely to be impartial between the different

States and their citizens, and which, owing its official ex-

istence to the Union, will never be likely to feel any bias

inauspicious to the principles on which it is founded.

(Emphasis in original.)*

4 The Federalist No. 80 (A. Hamilton) at 555 (Dawson ed. 1863);

and see, Woods and Reed, The Supreme Court and Interstate En-

vironmental Quality: Some Notes on the Wyandotte Case, 12 Ariz.

L.Rev. 691, 700-01 (1970).

8

It was more than mere impartiality of the forum which the

framers found to require federal jurisdiction. It was the need

to provide for the peaceful ordering of relations between the

states, and to protect the right of each to assert authority

over its own domain, by providing for a federal rule of law to

accommodate both conflicting rights, that was at the heart of

these early interstate disputes.

The right itself, while variously phrased, was felt to adhere

to the state, and the ultimate justification for the exercise of

the federal lawmaking power was as the federalist alter-

native to armed conflict. In Missour: it was the state’s

derivative right, as parens patriae, to protect the public

health of its citizens which provided grounds for federal

equity jurisdiction. The state was considered the proper party

to assert the collective rights of its populace to health and

comfort, as well as of its communities to prosperity. Jd. at

241; see also, Ohio v. Wyandotte Chemicals Corp., 401 U.S.

493, 505-06 (1971) (Douglas, J., dissenting).

And where the natural resources of the state are threat-

ened by harmful extraterritorial conduct, the state’s quasi-

sovereign power to determine the utilization of those

resources has also been recognized. In Georgia v. Tennessee

Copper Company, 206 U.S. 230 (1907), the leading early case

of interstate air pollution, Mr. Justice Holmes articulated the

right of a state to the control of its ecological destiny.

In that [quasi-sovereign] capacity the state has an in-

terest independent of and behind the titles of its citizens,

in all the earth and air within its domain. It has the last

word as to whether its mountains shall be stripped of

their forests and its inhabitants shall breathe pure air.

206 U.S. at 237.

Although Tennessee Copper first expressed this ecological in-

terest, the source of the right to protection of that interest in

the federal courts was there only suggested as being federal

in nature, from the federalist concept of a peaceable union

9

making forcible abatement impossible. The union did not, it

was held, imply that such quasi-sovereign interests were for-

saken, only that they must be determined by federal courts.

Id. at 237.

The state, however, is not the only party competent to

assert rights which, from this federalist perspective, call for

resolution by the federal judiciary. Hinderlider v. La Plata

River & Cherry Creek Ditch Company, 304 U.S. 92 (1938),

issued on the same day that Erie restricted the federal com-

mon law in typical diversity cases, and also authored by Mr.

Justice Brandeis, carefully preserved the federal common

law in cases requiring not only an impartial forum, but an im-

partial rule of law, as well. The quasi-sovereign rights of a

state demand protection by a federal rule of law, and where

those rights are implicated even by a private party plaintiff, a

federal common law will be applied. 304 U.S. at 110.

While the implication in Tennessee Copper was strong, it

was not until Pankey that the ecological right was clearly

recognized as having a federal source. Based upon the

reasoning of Tennessee Copper and the subsequent caselaw,

the Pankey court held that the ecological right of a state

against improper impairment from outside sources is a mat-

ter of federal concern or relationship, and therefore provokes

application of a federal common law. 441 F. 2d at 240.

It was this federalist aspect of the federal interest which

necessarily lay at the heart of Illinois, as in truth that was

the case directly presented to the Court by the allegations.

An asserted state right—as parens patriae to protect the

public health, or as quasi-sovereign over the control of its

own environment—was being impaired by conduct having in-

terstate consequences. //linois held that a conflict over rights

in interstate streams, just as does any dispute implicating the

question of apportionment of interstate waters or the setting

of interstate boundaries, presents federalist issues requiring

10

resolution by the application of the federal common law. Id.

at 105. But Illinois looked beyond that federalist interest,

and found a federal interest justifying application of the

federal common law, as well.

B. The Federal Common Law Is Available to Articulate the

Federal Interest in Maintaining the Purity of the Nation’s

Air and Waters.

While recognizing that a federal common law has been ap-

plied to matters of federal concern or relationship, Pankey

relied exclusively upon Tennessee Copper as the expression of

the applicable right, and thereby seemed to pin its holding

primarily to the existence of a federal relationship. There is

no discussion of the independent national environmental in-

terest evinced by federal statutes in the area, and it is not un-

til Mr. Justice Douglas’ decision in Jllinois that environmen-

tal protection is considered a matter of federal concern, as

well as relationship.

The federal interest in the maintenance of the purity of the

nation’s air and waters was anticipated in Missouri v. Illinois

in its reference to In Re Debs, 158 U.S. 564, 586 (1895), in

which the Court held the federal equity jurisdiction available

to abate a public nuisance,

‘“‘whenever the wrongs complained of are such as affect

the public at large, and are in respect of matters which

by the Constitution are entrusted to the care of the na-

tion, and concerning which the nation owes its duty to all

the citizens of securing to them their common rights.

...” 180 U.S. at 236.

Debs found the existence of a nuisance in the interference

with federal interests expressed in statute, for it is only to the

extent that federal policy regarding the delegated powers of

the central government may be found in federal statutory ex-

pression that they may be asserted. That is not, however, to

11

say that federal statute contains the only means of effec-

tuating the federal policy expressed therein.

In Clearfield Trust Co. v. United States, 318 U.S. 363

(1943), the Court referred to the federal rather than state

common law to determine the rights of the United States in

matters affecting payments made by government checks.

When the government exercises a Constitutional power, its

rights must be determined by a federal common law gleaned

from the general duties and rights described in the applicable

statutes and regulations. Id. at 366. Textile Workers Union v.

Lincoln Mills, 353°U.S. 448 (1957), stated the principle even

more clearly. In determining the source of the substantive

law to be applied in cases of federal common law rights, Mr.

Justice Douglas concluded that the courts must look to the

general policies of the applicable federal laws, and fashion in-

ventive remedies which best effectuate those policies. Jd. at

456-57.

The progression was continued in J/linois and applied to

the federal interest evidenced in recently enacted en-

vironmental legislation. Federal control over the nation’s

navigable waters, justified by the Commerce Clause, sup-

ports statutory assertion of the federal interest in the purity

of the nation’s waters. The statutes, however, again do not

offer the exclusive means of effectuating federal policy. Nor

is the federal policy expressed in the Federal Water Pollution

Control Act its exclusive expression, as different aspects of

federal concern may (as in the instant case) result in differing

policy statements. The courts must look to the varying

federal interests in the quality of navigable waters, and

create from them an application of federal law which best ef-

fectuates those interests. Jd. at 101-08.

The nature of the federal environmental interest itself was

best expressed by Mr. Justice Douglas in Minnesota v.

Reserve Mining Co., 419 U.S. 802, 804 (1974), in his dissent

on applications for temporary relief. Echoing the theme of

12 -~

fT

Debs that the national government has a responsibility to the

people—‘“‘the sovereign power in this Nation’’—to secure to

them their common rights, he recognized the truly national

interest in the quality of this nation’s waters.

I am not aware of a constitutional principle that allows

either private or public enterprises to despoil any part of

the domain that belongs to all of the people. Our guiding

principle should be Mr. Justice Holmes’ dictum that our

waterways, great and small, are treasures, not garbage

dumps or cesspools. Jd. (footnote omitted, citing New

Jersey v. New York, 283 U.S. 336, 342 (1931)).

This Court’s decision in Jllinois represents the confluence

of several streams of legal precedent: the recognition of the

ecological rights of a state (Tennessee Copper and Pankey);

the survival of the federal common lawmaking power for the

determination of rights in interstate waters (Hinderlider);

and the application of federal, rather than state, judicial

lawmaking authority in matters presenting federal interests

as reflected by statute, or in matters considered ‘‘intrinsically

federal’’ because of their need for a uniform rule of decision,

or because they touch upon basic interests of federalism

(Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425-27

(1964)). Illinois, 406 U.S. at 104-05.

The federal interest in interstate pollution disputes

recognized in Illinois is twofold. The federalist component,

based upon the retention of certain quasi-sovereign rights by

the states, calls for the application of federal law peacefully

to resolve conflicts in the exercise of those rights. The federal

component, based upon the delegated authority of the central

government to control matters affecting interstate com-

merce, requires the application of federal common law to ac-

complish the purposes of federal statutes and regulations

concerning navigable waters. In the case at bar, both com-

ponents are present, and both were properly contemplated in

the exercise of the District Court’s equity jurisdiction.

13

II. THE FEDERAL ComMMON LAW APPLICABLE IN THE INSTANT

CASE Was Not PREEMPTED BY THE FEDERAL WATER POLLu-

TION CONTROL ACT.

The Federal Water Pollution Control Act, 33 U.S.C. §§

1251, et seg. (FWPCA), is not intended to be the exclusive

pronouncement of policy regarding the nation’s navigable

waters. Congress not only specifically declined to foreclose a

state’s exercise of control over its own navigable waters, in-

sofar as such exercise may not conflict with the federal

scheme, but it also provided its own broader statement of

federal environmental principles in the National En-

vironmental Policy Act, 42 U.S.C. §§ 4321, et seg. (NEPA).

Various other federal laws provide expressions of the na-

tional interest in the protection of fish and wildlife resources.

See, Illinois, 406 U.S. at 102. Absent Congressional state-

ment of supersession by the FWPCA, that statute must be in-

terpreted together with other statutory expressions of

federal interest in the navigable waters in order to discover

the federal policy applicable to the instant case.

A. Federal Statutes Are Not To Be Construed as Preempting

the Federal Common Law Or the State Rights Vindicated

Thereby Absent a Clear Expression of Preemptive Intent.

It is, of course, axiomatic that the Supremacy Clause® em-

powers Congress to preempt state action in an area of federal

concern. But it is also plainly given that the states retain

broad power to legislate protection for their citizens in mat-

ters of local concern, such as public health. Great Atlantic &

Pacific Tea Co. v. Cottreli, 424 U.S. 366, 371 (1976).

That state action which is designed to control pollution is a

valid exercise of the police power to protect the public health

was acknowledged in Huron Portland Cement Co. v. City of

Detroit, 362 U.S. 440, 442 (1960):

5 U.S. Const. art. VI, cl.2.

14

The ordinance was enacted for the manifest purpose of

promoting the health and welfare of the city’s in-

habitants. Legislation designed to free from pollution the

very air that people breathe clearly falls within the exer-

cise of even the most traditional concept of what is com-

pendiously known as the police power. In the exercise of

that power, the states and their instrumentalities may

act, in many areas of interstate commerce and maritime

activities, concurrently with the federal government.

The Court further intimated that the federal air pollution

control act then in effect provided for just such concurrent

action in this area of primarily state and local concern.®

Such a system of cooperative federalism was also found to

be at the heart of the Water Quality Control Act of 1970, 33

U.S.C. §§ 1151, et seg., the predecessor to the FWPCA, and

defeated a claim of federal preemption of simultaneous state

regulation. Askew v. American Waterways Operators, Inc.,

411 U.S. 325 (1973), reh. denied, 412 U.S. 933 (1973). Nor is

state law that prohibits more than federal law necessarily in

conflict with, and preempted by, federal law, since the tolera-

tion of certain conduct by federal law does not imply an af-

firmative policy in favor of that conduct. Connecticut v. Levi

Strauss & Co., 471 F. Supp. 363, 367 (D. Conn. 1979). The

courts have, moreover, been especially reluctant to find

6 In so doing, the Court relied upon the following Congressional

expression of federal policy found at 42 U.S.C. § 1857:

“(I]t is hereby declared to be the policy of Congress to preserve

and protect the primary responsibilities and rights of the

States and local governments in controlling air pollution. ...”’

362 U.S. at 445-46.

The comparison with the statement of policy in the Federal Water

Polh:tion Control Act is instructive:

It is the policy of the Congress to recognize, preserve, and pro-

tect the primary responsibilities and rights of States to pre-

vent, reduce, and eliminate pollution. ... § 101(b), 33 U.S.C.

§ 1251(b).

15

federal preemption of the state police power. There has

developed, instead, the doctrine that the exercise of the

historic police power of the states is not to be superseded by

federal statute unless such was the clear and manifest pur-

pose of Congress. Ray v. Atlantic Richfield Co., 435 U.S. 151,

157 (1978). Statutes which invade the common law are

similarly strictly construed, and are read with a presumption

favoring the retention of long-established and familiar prin-

ciples. Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952).

Far from presenting a situation where state action would

stand as an obstacle to the accomplishment of federal objec-

tives, such as the Court found dispositive in Ray, at 165, the

case at bar concerns state action designed to accomplish pur-

poses which are not only permissible under, but are specifical-

ly endorsed by, the applicable federal laws.

B. The Federal Water Pollution Control Act Displays a

Clear Congressional Intent to Preempt Neither the State

Police Power Nor the Federal Common Law.

That Congress well knew its ability to preempt state law by

the FWPCA, should it so chose, is clear from § 312(f) of the

Act,” in which Congress specifically chose to do so with

regard to marine sanitation devices. The statute, however,

p.ainly declares its intention to preempt neither state nor na-

tional interests—neither the federalist nor the federal source

of the common law—by the breadth of its preservation of all

rights under any common law:

Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute

7 33 U.S.C. § 1322(f): “[N]o State or political subdivision thereof

shall adept or enforce any statute or regulation of such State or

political subdivision with respect to the design, manufacture, or in-

stallation or use of any marin¢c sanitation device on any vessel sub-

ject to the provisions of this section.”

16

or common law to seek enforcement of any effluent

standard or limitation or to seek any other relief (in-

cluding relief against the Administrator or a State agen-

cy). § 505(e), 33 U.S.C. § 1365(e) (emphasis supplied).

This provision received little explanation in the legislative

history, both bodies being in remarkable agreement. The

Senate Report, however, displays the true intent behind the

subsection. The Citizens Suit provision, § 505 of the Act, was

drawn as a private attorneys general measure in an effort to

broaden enforcement of the limitations and standards im-

posed by the Act. H.Rep. No. 92-911, 92d Cong., 2d Sess., at

134 (March 11, 1972) (hereinafter ‘““H.Rep.’’), reprinted in ‘‘A

Legislative History of the Water Pollution Control Act

Amendments of 1972,” (hereinafter ‘‘Legislative History’’)

v.1, 1973, at 753. Consistent with the Act’s stated policy en-

couraging citizen participation as a public service,? the

citizens suit provision extends enforcement authority by

creating a private right of action and adopting the standing

test set forth by this Court in Sierra Club v. Morton, 405 U.S.

727 (1972). S. Conf. Rep. No. 92-1236, 92d Cong., 2d Sess., at

145-46 (Sept. 28, 1972) (hereinafter ‘‘Conf. Rep.’’), reprinted

in Legislative History, v.1, at 281. The section is drawn to

permit an individual to bring an enforcement action without

having to meet the prerequisites, such as the jurisdictional

damage amount, of an extra-statutory private action. If the

prerequisites can be met, however, the extra-statutory action

remains freely available, including any common law tort ac-

tion. See, S. Rep. No. 92-414, 92d Cong., Ist Sess., at 81 (Oc-

tober 28, 1971) (hereinafter “‘S. Rep.’’), reprinted in

Legislative History, v.2, at 1415. While the citizens suit pro-

vision creates a limited citizens right and remedy where there

8 Both H.R. 11896 and S.2770 contained verbatim the provision

enacted as § 505(e).

® See, § 101(e), 33 U.S.C. § 1251(e).

17

otherwise may have been none,?° § 505(e) makes clear that it

does not intend thereby to extract in return any citizens’

rights or remedies which otherwise are available.

The intent behind § 505(e) is also illumined by the realiza-

tion that the provision was adopted verbatim from the Clean

Air Act Amendments of 1970,!! and was intended to have the

same effect. N.R.D.C. v. Train, 519 F. 2d 692, 701 n.46 (D.C.

Cir. 1975). It was that Clean Air Act vitizens suit section, and

presumably its savings provision identical to that of § 505(e),

on which this Court relied in Washington v. General Motors

Corp., 406 U.S. 109 (1972). In that decision, issued on the

same day that this Court affirmed the existence of federal

common law rights when dealing with air or water in their

ambient or interstate aspects, (J/linois, 406 U.S. at 103) and

authored by the same member of the Court, it was declared

that the states retain broad residual powers despite the

federal pollution control scheme, and that citizens and states

may bring suit to enforce other statutory and common law

rights. 406 U.S. at 115 n.4.¥4

10 There is some authority, however, for the proposition that a

private right to enforcement of the statute exists without benefit of

the citizens suit provision, in part because pollution of interstate or

navigable waters is an area of federal concern as to which an im-

plied private remedy in the federal courts should not be denied. Na-

tional Sea Clammers Association v. City of New York, 616 F. 2d

1222, 1230 (3d Cir. 1980), petition for cert. filed, 48 U.S.L.W. 3752

(May 20, 1980), and cases cited; but see contra, City of Evansville v.

Kentucky Liquid Recycling, Inc., 604 F. 2d 1008, 1016 (7th Cir.

1979), cert. denied, — U.S. —, 48 U.S.L.W. 3436 (January 8, 1980).

11 42 U.S.C. § 1857h-2(e). The identical provision is now codified

at 42 U.S.C. § 7604(e).

12 The juxtaposition of the two decisions cited indicates that

federal, as well as state, common law is preserved by § 505(e). Peti-

tioners’ contrary argument, at note 9, pages 21-22 of their Brief,

based upon the chronology of legislative action, ignores the fact

that the drafters of the FWPCA in 1972 were fully cognizant of the

significance of the decisions in Sierra Club v. Morton, 405 U.S. 727

(1972), which was delivered on April 19, 1972, and Getty Oil Co. v.

Ruckelshaus, 467 F. 2d 349 (3d Cir. 1972), which was handed down

18

The broad savings provision of § 505(e) is not the only in-

dication of non-preemptive intent found within the FWPCA.

In § 510, entitled ‘“‘State Authority,’ Congress specifically

sought to preserve the rights of the states to the unfettered

exercise of their historic police powers with regard to pollu-

tion of interstate or navigable waters, except insofar as such

exercise might interfere with the federally mandated

minimum controls:

Except as expressly prov: Jed in this Act, nothing in this

Act shall (1) preclude or deny the right of any State or

political subdivision thereof or interstate agency to adopt

or enforce (A) any standard or limitation respecting

discharges of pollutants, or (B) any requirement respect-

ing control or abatement of pollution; except that if an

effluent limitation, or other limitation ... is in effect

under this Act, such State or political subdivision or in-

terstate agency may not adopt or enforce any effluent

limitation, or other limitation . .. which is less stringent

. or (2) be construed as impairing or in any manner

affecting any right or jurisdiction of the States with

respect to the waters (including boundary waters) of such

States. 33 U.S.C. § 1370 (emphasis supplied).

Whether a state may choose to exercise its “right or

jurisdiction” over its own water quality by means of

statutory state-wide standards, or case-by-case protection of

the public health, it is clear that Congress intended not to in-

trude upon that decision, provided that the minimum control

levels established by the Act are not contravened. Here again

is a provision of the Act upon which there was complete har-

on September 12, 1972. Senate Consideration of the Conference

Report, October 4, 1972, reprinted in Legislative History, v.1., at

161, 179, 181. The decisions in Illinois v. Milwaukee and Washing-

ton v. General Motors Corp. were issued on April 24, 1972, and the

FWPCA was enacted on October 18 of that year.

19

mony between the two legislative bodies, and the House Com-

mittee report underscores the obvious non-preemptive mean-

ing of the broadly phrased language:

The Committee considers section 510 to be of extreme

importance in assuring the States of the right to adopt or

enforce provisions at least as strict as those established

in this legislation. Thus, the Committee rejected in most

instances suggestions for preemption by the Federal

Government and preempted the States only where the

situation warranted it based upon the urgent need for

uniformity such as in section 312(f) relating to marine

sanitation devices. H.Rep., supra at 136.

Neither did Congress intend the FWPCA to offer the ex-

clusive statement of national policy —the federal rationale for

the common law applied in the case at bar—in the quality of

interstate or navigable waters. In yet another measure of the

Act’s limited reach, § 511 specifically declines any limitation

on the authority or functions of any federal officer or agency

under any other law not inconsistent with the Act.!® That a

member of the judicial branch of government is an “‘officer’’

of that government is apparent from the statement of the

Conference Committee that § 511 ‘‘preserves the authority of

other Federal laws which are consistent with this Act.’’ Conf.

Rep., supra at 148. No distinction is made between statutory

and judicial law. Not only those Congressional statements of

federal policy contained in other legislation touching the

navigable waterways (see, Illinois, 406 U.S. at 101-02), but

also federal law fashioned to accommodate competing

statutory policies, are preserved by, insofar as not inconsis-

tent with, the Act.

13 “This Act shall not be construed as (1) limiting the authority or

functions of any officer or agency of the United States under any

other law or regulation not inconsistent with this Act; ...”

§ 511(a), 38 U.S.C. § 1871(a).

20

Moreover, in the present instance the judicial law applied

by the federal court will in fact operate to resolve an incon-

sistency with the Act and to advance the federal purposes,

rather than to clash with them. The maintenance of a public

nuisance—the finding of fact from which the legal analysis

herein must start—is plainly inconsistent with the purposes

of the Act as expressed in § 101(a), 33 U.S.C. § 1251(a), as

well as with the broad federal environmental purposes set

forth in NEPA, 42 U.S.C. § 4821, et seg. Abatement of the

nuisance will resolve the inconsistency, while permitting the

exercise of state authority guaranteed by § 505(e), and

without contravention of the minimum control levels pre-

scribed by the Act.

The Federal Water Pollution Control Act is built upon a

cooperative federalist scheme which recognizes the primary

rights and responsibilities of each state to control pollution

within its own domain. That principle is evoked in the policy

declaration of § 101(b), supra n.6, and echoed throughout the

Act. In the carrot-and-stick approach characteristic of

various federal/state programs, and particularly those in

which the federal interest intrudes upon the traditional state

police power, the Act provides for minimum federal water

quality standards and effluent limitations,!4 induced com-

pliance by federal guidelines and grants,!® and insured by

joint federal/state/citizen enforcement.'®

The “uniformity”’ which was provided in the FWPCA is a

uniform floor of pollution control, not a uniform level of con-

trol. By its very use of the phrase “effluent limitations,”’ the

Act plainly intends to set only a minimum rate at which the

nation will move toward the goal of zero discharge of pollut-

ants, while allowing each state the right to exceed that pace.

14 §§ 301, 303, 306, 307; 33 U.S.C. §§ 1311, 1313, 1316, 1317.

18 § 304, and Title II; 33 U.S.C. § 1314, and Subchapter II.

16 §§ 309, 505; 33 U.S.C. §§ 1319, 1365.

21

See, Statement of Russell Train, Chairman, Council on En-

vironmental Quality, on H.R. 11896; reprinted in Legislative

History, supra v.2, at 1116.

C. Where States Have an Express Statutory Right to Set

Varying Pollution Control Standards, Only a Federal

Common Law Means of Resolving an Unreasonable In-

terstate Interference with Those Standards Can Prevent the

Likelihood of Interstate Industrial Competition at the Ex-

pense of Environmental Quality.

It has also been argued that a uniform level of control,

whether or not required by the Act, is necessary to prevent

interstate industrial competition, with economic advantages

adhering to the state which least aggressively presses costly

controls on industry. While a uniform mandatory level of pol-

lution control rather than a minimum level would operate to

prevent industrial competition, for a variety of reasons Con-

gress has set only a minimum, and has preserved the states’

flexibility beyond that level. It is in fact such a flexible system

which, without an equitable means of accommodating its in-

terstate effects, provokes industrial competition. And in view

of the flexibility permitted by the FWPCA, it is only the

federal common law which can, in a given situation, discover

a measure of uniformity among varying standards.

The potential inequities of a system which provides for flex-

ibility without a means of resolving conflicts are most ap-

parent within the fact pattern alleged in New England Legal

Foundation v. Costle. A New York utility operating under a

state-granted and EPA-approved variance consumes 2.8 per-

cent sulfur fuel, thereby saving its consumers an estimated

52 million dollars. The utilities are situated on the north shore

of Long Island, and their emissions are predictably carried by

prevailing winds into Connecticut, allegedly causing harm to

the public health. Connecticut’s rate-payers must support the

22

higher fuel cost of the 0.5 percent sulfur limitation in that

state, while not even enjoying the environmental and public

health benefits of the low-sulfur limit. Connecticut’s in-

dustries either suffer the increased fuel cost, to their com-

petitive detriment, or succumb to the competition and

relocate to a less stringently controlled area.

Industrial development and its economic benefits are

unavoidably purchased at the cost of some environmental im-

pacts. The federalist free enterprise system upon which this

country is based demands the freedom of each state to make

that value judgment, and the federal air and water pollution

statutes have not withdrawn that right from the states ex-

cept where the minimum standards would be contravened. To

the extent that the consequences—economic, environmental

or otherwise—of industrial conduct are visited entirely upon

an emitting state, that state is legislatively competent to

regulate such conduct on behalf of its citizens. But when the

externalities of industrial conduct touch a neighboring state,

and may in fact affect the way in which the industrial-

environmental balance is drawn in that state, the receiving

state must suffer the consequences without the opportunity

to have exercised its own judgment on the value of that con-

duct. While the receiving state is legislatively incompetent to

weigh the benefits of the conduct, the emitting state is equal-

ly incompetent to judge its costs, as they are visited upon the

citizens of its neighbor.?”

In these dense and tangled thickets of intertwining social,

economic, and environmental values, implicating such often

divergent and vital interests as private property rights, the

public health, and the historic police power of the states, are

17 Nor has the receiving state, by any conduct of its own, sub-

jected itself to the jurisdiction of the emitting state or otherwise

conceded the decision-making process to it. The superior authority

of the emitter is purely an accident of geography.

23

made many of the most critical quality-of-life decisions which

society faces. Our federalist system leaves the right to make

such decisions, except where specifically assumed by the cen-

tral government, with the states. When the rights of two

states so collide, the only jurisdiction competent to resolve

the conflict is the federal equity jurisdiction.

III. SUBSEQUENT JUDICIAL INTERPRETATIONS OF THE RULE OF

Ittinois HAVE SEEN SOME VARIATION WHICH WARRANTS

CLARIFICATION BY THIS COURT.

The subsequent history of Jllinois as case precedent has

provoked neither a rash of federal common law pollution suits

nor a violent clash of interpretations between the Circuits.

There has been some disagreement over the scope of the fed-

eral interest recognized in illinois, but no aspect of those dif-

ferences would operate to deny to plaintiffs a federal com-

mon law remedy under the facts as proved in the case

presently at bar.

The Seventh Circuit has most frequently interpreted the

law of Illinois, and has enunciated certain principles also

reflected by the courts of other jurisdictions. The federalist

component of the common law rationale was recognized in

Stream Pollution Control Board of Indiana v. U. S. Steel

Corp., 512 F. 2d 1036 (7th Cir. 1975), in which Jllinois was in-

terpreted as providing that the federal courts may fashion a

federal common law of public nuisance to resolve controver-

sies involving the impairment of the environmental interests

of one state by sources outside its domain. Jd. at 1039, citing

Texas v. Pankey, 441 F. 2d 236 (10th Cir. 1971). The court

there acknowledged, without deciding, the further issue of

whether the federal common law extends to all navigable

waters without requirement of interstate effect. It was

uncertain whether jurisdiction might be supported only by

24

the federal interest expressed in statute,!8 or whether the na-

tional interest in the purity of interstate bodies of water!®

would suffice. Stream Pollution Control Board, 512 F. 2d at

1040. Without reaching an answer to the question, the court

did, however, note that in several instances the federal

_ government had been permitted to pursue such claims with-

out allegation of a conflict between sovereign state interests.

Id. n.9, and cases cited; see also, United States v. Stoeco

Homes, Inc., 498 F. 2d 597, 611 (3d Cir. 1974), cert. denied,

420 U.S. 927 (1975).

In its decision in the case now at bar, Illinois v. Milwaukee,

599 F. 2d 151 (7th Cir. 1979), the binding precedent of this

Court’s 1972 decision precluded any necessity for the Circuit

Court to discuss the basis for the availability of the federal

common law. But a detailed analysis of the FWPCA con-

cluded, on the basis of the express provisions of the Act itself,

including its amendments through 1977 and implementing

regulations, that Congress had not intended to preempt or

otherwise limit the availability of common law relief. Jd. at

162-64.2° And the court strongly intimated that the federal

interest so preserved was limited neither to the existence of

18 Circuit Judge Oakes answered this question in United States v.

Tra S. Bushey & Sons, Inc., 346 F. Supp. 145, 149(D. Vt. 1972), and

363 F. Supp. 110, 120 (D. Vt. 1973), when he held that the

numerous federal-laws for the control of pollution of interstate or

navigable waters do not establish the exclusive means of protecting

the federal interest in the quality of those waters.

19 Judge Oakes termed this the ‘‘public interest in preserving the

environmental integrity of Lake Champlain, the sixth largest lake

in the country and a jewel of nature.”’ U.S. v. Bushey, 363 F. Supp.

at 119.

20 Accord, City of Evansville, supra n.10, at 604 F. 2d 1014; Na-

tional Sea Clammers Association, supra n.10, at 616 F. 2d 1226-28,

1233 n.31; California Tahoe Regional Planning Agency v. Jennings,

594 F. 2d 181, 193 (9th Cir. 1979); Township of Long Beach v. City

of New York, 445 F. Supp. 1208, 1215 (D. N.J. 1978).

25

interstate effects, nor to the presence of a state as a com-

plainant.

We can think of no other reason for Congress’ preserv-

ing previously existing rights and remedies than to pro-

tect the interests of those who would be able to show that

the requirements imposed pursuant to the federal

statute are inadequate to protect their interests. When

the complaining party is a neighboring state, the federal

common law of nuisance provides a peculiarly ap-

propriate remedy. Jd. at 165.

In City of Evansville, supra, n.10, the Seventh Circuit held

that when a state’s interests are implicated, the state itself

need not be a party to an action brought under the federal

common law by a municipality.21 The Court again expressly

declined to answer whether a private party may bring such a

claim, or whether a claim may be made in the absence of in-

terstate effect. 604 F. 2d at 1018.

What thematic variations do exist between the courts

primarily involve the application of the federal common law

in the absence of allegations of interstate effects. Where no

interstate effect is alleged, some courts have found no federal

interest to be present, and suit under the federal common law

has not been allowed. Committee for Jones Falls Sewage

System, supra n.21, at 5389 F. 2d 1009; Parsell v. Shell Ourl

Company, 421 F. Supp. 1275, 1281 (D. Conn. 1976), aff'd sub

nom. East End Yacht Club v. Shell Oil Co., 573 F. 2d 1289 (2d

Cir. 1977); Reserve Mining Co. v. Environmental Protection

21 Accord, Township of Long Beach, 445 F. Supp. at 1214. That

the state, or federalist, interests might be sufficiently implicated by

a non-municipal private party was confirmed in Committee for the

Consideration of the Jones Falls Sewage System v. Train, 539 F. 2d

1006, 1009 n.8 (4th Cir. 1976), citing Hinderlider v. La Plata. The

Third Circuit has also found a private party competent to assert the

federal interest in interstate or navigable waters. National Sea

Clammers Association, 616 F. 2d at 1233.

26

Agency, 514 F. 2d 492, 520 (8th Cir. 1975). See also, Com-

monwealth of Massachusetts v. United States Veterans Ad-

ministration, 541 F. 2d 119, 123 (1st Cir. 1976). Such an

analysis relies exclusively upon the federalist justification for

the common law, and ignores the federal interest in the puri-

ty of all interstate and navigable waters, an interest

manifested in the FWPCA, NEPA and other federal

statutes, and held by Mr. Justice Douglas to provoke the ap-

plicability of the federal common law. Illinois, 406 U.S. at

104.

Recognition of this aspect of the Jl/linois decision was pro-

vided in Illinois v. Outboard Marine Corporation, — F. 2d —,

14 E.R.C. 1281 (7th Cir. 1980), in which a state was permit-

ted to bring suit under the federal common law for nuisance

caused by the pollution of interstate or navigable waters, but

without allegation of interstate effects. In so doing, the Court

of Appeals provided the clearest recognition yet of the

federal aspect of the federal interest in such disputes, and the

compatibility of that interest with the federal statutory

scheme.

The nation has a basic overriding federal interest in in-

terstate and navigable waters and in developing a

uniform program of protecting these national resources

from pollution. The Federal Water Pollution Control Act

made this interest explicit. The federal common law of

nuisance fills the interstices in the Act. Jd. at 1283.

It is that uniformity of standard in the control of pollution

of interstate waters which the Third Circuit found to be

justification for the application of federal common law to pro-

tect the federal interest even when asserted in a suit by

private parties. National Sea Clammers Association, 616 F.

27

2d at 1233.22 One purpose of the FWPCA is to protect in-

dividuals from injury related to the pollution of interstate

waters, and where that federal purpose is involved even

private parties may exercise the common right. Jd. at 1229,

1234-35.

The question has also been raised whether compliance with

the relevant federal statute can constitute a defense to or

otherwise limit the relief available under the federal common

law of nuisance. In the analogous situation presented in New

England Legal Foundation v. Costle, the District Court dis-

missed the federal common law cause of action for interstate

pollution for failure to state a claim. There, plaintiffs were

municipalities and private parties, and the allegations of in-

terstate effects were plainly pleaded. But the court declined

to hear the matter on its merits, holding that in no event

would it create an equitable remedy to proscribe conduct ap-

proved by the applicable statute, there the federal Clean Air

Act. 475 F. Supp. at 441. It is that portion of the case upon

which the Second Circuit has reserved judgment pending the

decision of this Court in the instant case, and which is relied

upon by Petitioners herein as support for the proposition that

the federal common law is not available where conduct is ap-

proved by a federal statute or administrative agency. Brief

for Petitioners at 38-39, 42 n.20.

The District Court in New England Legal Foundation,

however, incorrectly relied upon Jones Falls Sewage, where

the Fourth Circuit declined to restrict statutorily approved

conduct specifically because of the absence of interstate ef-

22 Accord, Byram River v. Village of Port Chester, 7 E.R.C. 1127,

1128 (D. Conn. 1974), 394 F. Supp. 618, 622 (S.D. N.Y. 1975); see

also, Michie v. Great Lakes Steel Division, 495 F. 2d 213, 216 n.2

(6th Cir. 1974), cert. denied, 419 U.S. 997 (1974), suggesting that

federal common law may be available to private parties where in-

terstate effects are alleged, although to that point only states had

pursued such actions.

28

fects. The Court of Appeals there recognized the federalist

interest inherent in interstate pollution disputes, 539 F. 2d at

1009, but held that the only federal interest implicated in an

intrastate controversy was expressed in and fully cir-

cumscribed by the federal statute.

To the extent there is a federal interest, it is expressed in

the Federal Water Pollution Control Act Amendments of

1972, but the plaintiffs have no claim based upon the

statute. ...

While the state courts are free to apply state nuisance

law more rigidly, a federal court in such a local con-

troversy may not turn to a supposed body of federal com-

mon law to impose stricter standards than the statute

provides. 539 F. 2d at 1009 (footnote omitted; emphasis

added).

The court’s interpretation of § 505(e) of the Act as preserving

only state common law claims appears misplaced. (See argu-

ment at Section II B, supra.) In any event, the proper reading

of the Fourth Circuit’s decision would recognize statutory

limits only in the absence of allegations of interstate effect.

The better rule would seem to be that applied by the

Seventh Circuit in the Outboard Marine Corp. case:

We conclude, based on Illinois v. Milwaukee and the

Federal Water Pollution Control Act, that there is an

overriding federal interest in preserving, free of pollu-

tion, our interstate and navigable waters. When a pollu-

tion controversy arises, it is immaterial whether there is

a showing of extraterritorial pollution effects. The issue

is whether the dispute is a matter of federal concern.

When it is, as in this case, federal courts should be ac-

cessible. The effect of the federal common law of

nuisance is to fill the statutory interstices and to provide

uniformity in controlling water pollution in either in-

terstate or navigable waters of the United States. 14

E.R.C. at 1287.

29

Conclusion.

The exercise, or non-exercise, of control over air and water

emissions implicates a host of values—land use and planning,

municipal finance, industrial development, protection of the

public health, and the preservation of ecological rights—tra-

ditionally within the ambit of state and local government.

When the determination of those values by one state may

conflict with that of another, the maintenance of the federal

relationship requires that the federal judiciary fashion an

equitable resolution from the federal common law. And as en-

vironmental protection has itself recently come to be

recognized as an interest within the delegated grant of

powers to the central government, it has created an inde-

pendent source of federal equity jurisdiction to effectuate the

policies found in various federal environmental legislation, in-

cluding the Federal Water Pollution Control Act.

The case at bar inspires both sources of federal jurisdiction,

by its simultaneous provocation of matters of federal rela-

tionship and of federal concern. The Federal Water Pollution

Control Act represents a plainly and purposely limited ex-

pression of federal policy intended to supplement, rather

than to subvert, both the state and federal interests which

here justify the application of the federal common law. The

decision of the Court below should be affirmed.

Respectfully submitted,

WILLIAM W. BECKER,

LANDFIELD, BECKER & GREEN,

Suite 1050,

1819 H Street, N.W.,

Washington, D.C. 20006.

(202) 293-1919

WAYNE S. HENDERSON,

ROBERT R. RUDDOCK,

NEW ENGLAND LEGAL FOUNDATION,

110 Tremont Street,

Boston, Massachusetts 02108.

(617) 482-1410

Dated September 2, 1980.