Amicus Brief — Milwaukee v. Illinois

r Supreme Court, U.S. |

FIL? D

AUG2 81980

In THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-408

7%

_ Crry or Miwwavker, THE Sewerace Commission oF THE

Crry or MiiwavkKEk, AND THE METROPOLITAN SEWERAGE

ComMIssION Or THE County oF MILWAUKEE,

Petitioners,

vs.

PEOPLE OF THE STATE OF ILLINOIS AND PEOPLE OF

THe State oF MicHIGAn,

Respondents.

On Writ or CERTIORARI TO THE United States Court oF

APPEALS FOR THE SEVENTH CIRCUIT

BRIEF AMICUS CURIAE OF THE ATTORNEY

GENERAL OF THE STATE OF NEW YORK

Rospert ABRAMS

Attorney General of the

State of New York

SHIRLEY SIEGEL

Solicitor General

Cyrm H. Moors, Jr.

Mary L. Lynpon

Assistant Attorneys General

Attorneys for Amicus Curiae

State of New York

- New York State Department

of Law

2 World Trade Center

New York, New York 10047

(212) 488-7561

August, 1980

TABLE OF CONTENTS

PAGE

STATEMENT OF INTEREST ........00cceccccccscceees 1

SunmaRy oF ARGUMENT .......cccccccsccvevessese 2

I—The language of the act makes it clear that

the Statute and the Common Law are com-

plimentary and the Common Law is not re-

Ce ey eer ee 4

IIi—The Federal Common Law of Nuisance does

not conflict with the regulatory scheme ..... 9

A. The Act provides for evolution and

variety of water pollution controls ..... 9

B. The Court will apply the Federal Com-

mon Law of Nuisance within the statu-

tory Trameweek ..s.csscesnavecsasvess 13

III—The Constitution guarantees State Govern-

ments a Federal forum in which to seek a

remedy for an Interstate Nuisance ........ 15

CONCKAMION «2.0005 cb csviness 6004-00 ee 20

TABLE OF AUTHORITIES

Cases:

Arizona v. California, 373 U.S. 546 (1968) ......... 8

Board of Supervisors of Fairfax County, Virginia v.

United States, 408 F. Supp. 556 (E.D. Va.

OTS) a chee vccescccsek vient ee esse 17,18

Cities Service Oil Co. v. Roberts, 62 F. 2d 579 (10th

Can. SOUR) wwe ce ccs Sevier 17

li INDEX TO APPENDIX

PAGE

Committee for Jones Fall Sewage System v. Train,

539 F. 2d 1006 (4th Cir. 1976) ..............2.. 8

EI. du Pont de Nemours & Co. v. Train, 430 U.S.

112 (1977) occ ec ececeeeeec cece ease eeseaenes 5

Environmental Protection Agency v. State Water Re-

sources Control Board, 426 U.S. 200 (1976) .... 12

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) 16

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) .... 17

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .... 15

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

Jamison v. Encarnacion, 280 U.S. 635 (1930) ......

Kansas v. Colorado, 206 U.S. 46 (1907) ........... 16

Mianus River Preservation Committee v. EPA, 541

F. 2d 899 (2nd Cir. 1976) ...............000 eee 20

Missouri v. Illinois, 180 U.S. 208 (1901) ........... 16

Missouri v. Illinois, 200 U.S. 496 (1906) ........... 16

National League of Cities v. Usery, 426 U.S. 833

TESTS TCT Te ee Pee ee ree Te eee 16, 17

Natural Resources Defense Council v. Costle, 568

PF. 2d 1369 (D.C. Cir. 1977) ........ ccc eee ee 10

Natural Resources Defense Council v. Train, 8 E.R.C.

EN MONOD Kener dv vicccwavsnsorvaberanes 5

Natural Resources Defense Council v. Train, 510 F.

aa GB2 (D.C. Cir. 1975) ..... ccc ccc cece sees 10

Nebraska v. Wyoming, 325 U.S. 589 (1945) ........ 16

New England Legal Fowndation v. Costle, 475 F.

Supp. 425 (D.C. Conn.) F. 2d —— (2nd

TTT TREE RT eee TET Orr Or Tere 8

TABLE OF CONTENTS iii

PAGE

New York v. New Jersey,, 256 U.S. 296 (1921) ...... 16

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

CR ORE ie Wa cori wae awe) pee as Reade. 15

People of the State. of Illinois v. City of Milwaukee,

Sop W. Be 161 C7 Cit. 1979)... onceicccc wars 6, 14, 18

Phalen v. Virginia, 49 U.S. (8 How.) 163 (1850) ... 10

Richards v. Washington Terminal Co., 233 U.S. 546

(TDNE) nc cccscsccccccccccnenstecececsceess 10

Sterra Pacific Power Co. v. Federal Power Commis-

sion 223 F. 2d 605 (D.C. Cir. 1955), aff’d 350

Ti AD oO RER S045 45 5540 ere eees see He 8

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

(9 ee eee 16

State of West Virgima v. Chas. Pfizer & Co., 440 F.

2d 1079 (2nd Cir.), cert. denied sub nom. Colter

Drugs, Ine. v. Chas. Pfizer & Co., 404 U.S. 871

ia ys ah ies ah lad bee tog 17

Texas v. White, 74 U.S. (7 Wall) 700 (1868) ........ 19

Texas & Pacific Railway v. Abilene Cotton Ou Co., 204

Oe I oi does acc csc ces 7,8

United States v. Hooker Chemicals & Plastics Corp.,

et al., Civil Actions Nos. 79-988, 79-989 and 79-990

NL IEAD ce k-dnle sc bes RUET ER Oe OO bt bees 9

United States y. Outboard Marine Corp., 12 ERC 1348

ae I ca vcd uensdohiaxceheehekbek ese 9

United States ex rel. Scott v. United States Steel

Corp., 356 F. Supp. 556 (N.D. Ill. 1973) ........ 8

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

Ce rrr err re reuters re err 19

iv TABLE OF CONTENTS

PAGE

Wisconsin v. Pelican Insurance Co., 127 U.S. 265

(2 RMSE Gath CUR ne Sone 8 Sot een eae 15

Constitution of the United States, Article ITT ...... 15

- ae 2 Re et Eo ey eee e rer er Teer rte 15

The Clean Water Act or Federal

Water Pollution Control Act

EE ops kbs 4 we Cet hu ees awe en cieess 2,12

Be Ne IE kN bio 9 0b F408 de oe ode he sees 11,12

ee nb ds enh b+ ON Nees eens knees e ee 11,12

os an vay vb Rad CON 4s dosh oe eens 12

$3 U.S.C. $1967 ........ Serr Try rer trite 11

Pe RE EE Nd onenncdashtaeeodesiatencen 11

Bre ee oars Ceres 11

Se EE BUA Wie nc ia sank dsesnnves saoeuen 12

a A cbs cap bakeetacndickaveneeees 11,12

Me EE Ws ones senda s hoe in eee eaneen 5

EE pd seks eee kes seue seus Venues 7, 11,12

he a errr er Terre cr 5, 6, 7, 13

See SE ea vinwih ob seke beatae ees 4,11, 12, 13,17

AR SAA Scat yas cs oneavececmunens 7

SD OBE STH G6 MOR. ccccaciceceiesecesises 8

Fair Labor Standards Act Amendments of 1974 .... 16

Rules:

Federal Rule of Civil Procedure No. 53 ........ 13

TABLE OF CONTENTS Vv

Legislative History: PAGE

The Legislative History of the Water Pollution

Control Act Amendments of 1972, Prepared by

the Environmental Policy Division of the Con-

gressional Research Service of the Library of

Congress, January 1973 ...........cccccciee 6

Miscellaneous:

10 Natural Resources Lawyer 507 .............005- 4)

Prosser, William J., Law of Torts, West Publishing

Th CEE -k00n-ane 600bceeuyekweeseeeuens 9,15

1972 Wisconsin Law Review 597, 607-8 ............ 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-408

-

=

Crry or Muwavxker, THE Sewerace Commission oF THE

Crry or MinwavkKEE, AND THE METROPOLITAN SEWERAGE

Commission or THE County oF MILWAUKEE,

Petitioners,

VS.

Propte oF THe Strate or ILuinois anp PEOPLE OF

THe Strate or Micuican,

Respondents.

On Wait or CERTIORARI TO THE Unitep States Court or

APPEALS FOR THE SEVENTH CIRCUIT

y%

Lg

BRIEF AMICUS CURIAE OF THE ATTORNEY

GENERAL OF THE STATE OF NEW YORK

Statement of Interest

In certain circumstances a federal common law public

nuisance action may be the only path open to a state gov-

ernment which seeks to resolve an urgent interstate con-

flict. For this reason, we have chosen to offer a hypo-

thetical fact situation which we believe forcefully illus-

trates the extent of our interest in this case. The fact

situation outlined below incorporates elements of typical

cases which the New York State Attorney General faces

daily, and which constitute a compelling interest in the

issues to be decided in this case.

2

Suppose that a corporation operates a toxic waste dis-

posal site on the border of an adjacent state near a navi-

gable waterway. The wastes being treated at the site are

compounds which include~many chemicals. Research con-

ducted by a federal government has documented serious

health hazards posed by many of these chemicals. Some

of these are not regulated by the United States Environ-

mental Protection Agency (EPA), though many are sched-

uled to be controlled eventually. The use of some of the

chemicals not regulated by EPA is controlled by the U.S.

Occupational Safety and Health Administration and the

Food and Drug Administration.

The company’s existing disposal methods do not meet

federal or New York standards, nor do they measure up

to industry endorsed practices for the chemicals which

EPA does not regulate. The company does meet the ad-

jacent state’s less stringent standards. Toxic materials

from the company site have been traced to the drinking

water of several New York towns and to fish in the adja-

cent waterways. The company is a viable profit-making

venture.

On the facts as stated, New York would have a clear

and legitimate interest in attempting to convince this

company to establish greater control over its effluents.

Equally clearly, failing informal resolution of the prob-

lem, New York’s interest would have to find expression

either in a federal administrative action, or in an action in

federal court. New York submits that both routes, rather

than merely the former, must remain fully available.

Summary of Argument

The federal common law of public nuisance is part of

the underlying legal context on which the Federal] Water

Pollution Control Act was superimposed. 33 U.S.C. $1251

et seq. (FWPCA, Clean Water Act or Act) Implementa-

tion of the FWPCA is intended to be a national reform

3

project which will compliment and supplement the com-

mon law, not supplant it. The Act explicitly preserves all

common law actions and provides no basis for excepting

federal common law nuisance claims from this provision.

Congress intended that the courts continue to develop the

common law.

The FWPCA directs EPA to set minimum standards

and encourages the states to set stricter standards. The

Act also requires EPA to gradually tighten pollution con-

trol requirements until no pollutants are discharged. Peti-

tioners describe water pollution problems and the regu-

latory scheme in an extremely general and theoretical

fashion. They conclude from this superficial description

that the regulatory tools are sufficient, but that they

would be destroyed by any parallel exertions on the part

of the federal courts. This view is facile and shortsighted.

As a practical matter, the federal common law of public

nuisance and the FWPCA do not conflict with or under-

mine one another. In the past, federal courts and agen-

cies have worked together to achieve the goals of the

FWPCA. Congress intended that this partnership con-

tinue and grow.

In addition, a state suffering an injury from an out-of-

state source has a constitutional guarantee of a federal

forum to seek an appropriate remedy. The states have not

delegated to the federal government, but have retained, the

parens patriae responsibility to protect the health and

welfare of their citizens. As a matter of law, the FWPCA

cannot foreclose an action by a state executive to pursue

a remedy in federal court for an interstate nuisance.

The Court should decisively reject the proposition

that the FWPCA ‘‘tolerates a certain risk of harm’’ to

humans and that the common law remedies interfere with

the ‘‘efficient operation of the regulatory scheme’’ and

‘‘upset the reasonable expectations’’ of enterprises which

discharge pollutants. Mid-American Legal Foundation

Brief, p. 9. The Attorney General of the State of New

4

York submits that we have not arrived at such an Orwellian

state of affairs that the citizens’ ancient remedies have

been abandoned in favor of abject dependence on the

federal bureaucracy. Congress never intended that the

FWPCA supplant common law remedies designed to pro-

tect health and property, but instead that it would augment

them. Congress has instituted a national cleanup

campaign, which will eventually tolerate no risk of harm

from water pollution. In the meantime, it has left in-

dividual remedies intact.

I The Language of the Act Makes It Clear That the

Statute and the Common Law are Complimentary

and the Common Law Is Not Restricted

The FWPCA expresses a clear intention that federal

courts continue to develop and apply the federal common

law in water contamination cases. It would be surprising

indeed if Congress had purported to abolish the federal

common law of nuisance. The currents of American law

have swelled increasingly with statutory laws, but this

proliferation has in no way reduced the significance of the

common law, which remains an important and fundamental

part of our legal system. The federal common law of

nuisance is far from an anomaly or vestige in the statutory

context. Rather, it is a basic and vital part of the frame-

work into which the FWPCA was written.*

*The term ‘‘pre-emption’’ most appropriately describes the

action of federal law occupying a particular subject matter area

and foreclosing state law in that field. Congress has not pre-

empted state law with respect to water quality regulations and this

is not a pre-emption case. 33 U.S.C. § 1370.

Wisconsin argues that considerations of comity should influence

the federal courts to refrain from applying federal common law

in water contamination cases, because the legislature has enacted

a statute in this subject area. Wisconsin Brief, p. 22 et seq.

Such judicial deference might be appropriate if the two sources of

law did indeed clash and if Congress had expressed an intention to

foreclose common law actions in federal court. Neither of these

conditions exists here.

5

In contrast to the common law’s conservative, case-by-

case approach, the FWPCA is a project-oriented statute,

which attempts to effect a sweeping national reform as

expeditiously as possible. Congress designed the FWPCA

as a two-part enterprise: first, a massive clean-up and,

thereafter, a regulatory scheme enabling the maintenance

of these improved conditions. The statute relies in large

part on general rules and standards to accomplish these

objectives. EJ. du Pont de Nemours & Co. v. Train, 430

U.S. 112, 116 (1977). However, these are not the exclusive

means to be used.

Congress recognized that there would be variations from

the average and situations which could not be foreseen

when the statute was written. Moreover, when an agency

is delegated to implement a statute, there will always be

regulatory lag before the agency can reach problems which

do not seriously affect the majority of citizens, even though

they may very critically affect a minority.* In these situa-

tions, the FWPCA provides that affected groups retain re-

course to the courts to litigate any common law claims they

may have.

The FWPCA’s savings clause, Section 505(e), evinces a

clear intention not to foreclose any cause of action which

presently exists:

Nothing in this section shall restrict any right which

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

*For example, EPA’s program for regulating toxic discharges,

pursuant to 33 U.S.C. § 1317, consists of a schedule which attempts

to study and address the national problem industry by industry

and toxic by toxic. This means that the largest industries dis-

charging the greatest quantity of the most hazardous substances

will be regulated first—a logical approach for an agency with lim-

ited resources and national responsibilities. Natural Resources De-

fense Council v. Train, 8 E.R.C. 2120 (D.D.C. 1976). 10 Natural Re-

sources Lawyer 507. It means, however, that small local industries

may not be reached by EPA for many years, even though they may

be operating negligently and damaging the health and ecology of

many of their neighbors.

6

statute or common law to seek enforcement of any

effluent standard or limitation or to seek any other

relief... . 33 U.S.C. §$1365(e)

The Senate Report, which is the acknowledged source

~ of the section 505 savings provisions, states:

. . It should be noted, however, that the section

would specifically preserve any right or remedies under

any other law. Thus, if damages could be shown, other

remedies would remain available. Compliance with re-

quirements under the Act would not be a defense to a

common law action for pollution damages.*

The court below correctly explained the logic of includ-

ing the federal common law of nuisance in the savings

provision:

. . There is nothing in the phrase ‘‘any statute or

common law’’ that suggests that this provision is

limited to state common law. There is no reason to

believe that Congress would have wished to preserve

state common law claims and preclude federal common

law claims. The preservation of all existing remedies

is consistent with the recognition in this Act of the

value of public-participation in all aspects of the effort

‘‘to restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters,’’ exempli-

fied by the direction to EPA and states participating

in the national discharge permit system to encourage

such participation. (Citation omitted)

People of the State of Illinois v. City of Milwaukee,

(‘‘Tilinois v.. Milwaukee’’) 599 F. 2d 151, 163 (7th Cir.

1979)

* Legislative History of the Water Pollution Control Act

Amendments of 1972, prepared by the Environmental Policy Divi-

sion of the Congressional Research Service of the Library of

Congress, January 1973, Vol. 2, p. 1499.

7

The court’s holding was clearly correct, as there is no

basis for distinguishing the federal common law from the

state common law in this context.

Petitioners argue erroneously that subsection 402(4) ex-

empts permit holders from common law actions otherwise

allowed by § 505. Petitioners brief, p. 40. In fact, § 402(k)

states:

Compliance with a permit issued pursuant to this

section shall be deemed compliance, for purposes of

section 309 and 505, with sections 301, 302, 306, 307,

and 403, except any standard imposed under section

307 for a toxic pollutant injurious to human

health...

33 U.S.C. § 1342(k) (Emphasis added)

Thus, it is apparent that compliance with a permit does

not constitute compliance with all of § 505, but merely with

sections 301, 302, 306, 307 and 403. Petitioners’ reading

of 402(k) would result in the nullification of § 505(e), which

was obviously not intended.*

The rule is well established that statutory repeals of the

common law by implication are not favored. A statute is

not to be construed as taking away a common law right

unless that result is absolutely required, as when con-

tinuance of the right would render a statutory provision

entirely ineffectual. Isbrandtsen Co. v. Johnson, 343 U.S.

779, 783 (1952) ; Jamison v. Encarnacion, 280 U.S. 635, 640

(1930) ; Texas & Pacific Railway v. Abilene Cotton Oil Co.,

*In another context in the FWPCA, Congress specifically

provided that § 404 dredge and fill permits would be conclusive as

to the effect of the permitted activity on water quality, for pur-

poses of the Act of March 3, 1899. 33 U.S.C. § 1371. This exemp-

tion demonstrates that Congress did provide for specific legal effects

of permits where it wished to do so.

It is also worth noting that § 402(k) provides that these permits

shall not be final, even for their own duration, for purposes of

allowing continued discharge of toxic pollutants injurious to human

health. 33 U.S.C. § 1342(k).

8

204 U.S. 426, 437 (1907); Sierra Pacific Power Co. v.

Federal Power Commission, 223 F. 2d 605 (D.C. Cir. 1955),

aff’d 350 U.S. 348 (1956). In the present case, where

Congress has explicitly preserved the common law, there is

simply no basis for interpreting a repeal.*

Consistent with normal legislative practice, Congress

clearly meant to do here only what it consciously and

specifically did in writing the Act. Moreover, Congress

did not revise, delete or modify the savings clause when

it revised the Act in 1977. Obviously, Congress was un-

* Most of those lower federal courts which have dealt with this

matter have held that FWPCA does not foreclose common law

nuisance actions or at least that the federal district courts have

jurisdiction to address the question. As the district court ex-

pressed in its holding in United States ex rel. Scott v. United States

Steel Corp., ‘‘. .. [w]e do not find any provision in [the FWPCA

Amendments of 1972] which proposes to abolish the Federal com-

mon law of nuisance but rather an intention to supplement and

amplify any preexisting remedies. .. . (Citations omitted.) ’’

356 F. Supp. 556, 559 (N.D. Ill. 1973)

Petitioners cite two cases in support of their argument that

the federal courts have no power to apply common law in inter-

state water pollution cases, but these do not stand for that proposi-

tion. Committee for the Consideration of the Jones Falls Sewage

System v. Train, 5389 F. 2d 1006 (4th Cir. 1976), concerned intra-

state pollution and the court held that the plaintiffs must there-

fore bring their common law claims in state court. 539 F. 2d at

1007, 1010. In New England Legal Foundation v, Costle, 475 F.

Supp. 425 (D.C. Conn.) —— F. 2d —— (2nd Cir. 1980) (decision

reserved pending the decision of the Court in the instant case), the

district court did not find that the common law had been pre-

empted, but exercised its equitable discretion in the light of the

facts in that particular case, not to devise a remedy, finding in-

stead that the Clean Air Act, 42 U.S.C. § 7401 et seg., provided an

entirely adequate remedy at law. 475 F. Supp. at 441.

Petitioners’ also cite Arizona v. California, 373 U.S. 546 (1963),

for the proposition that once Congress has enacted legislation on

the subject of interstate waters, this law is automatically to be

applied in the place of previously applicable common law. In that

case Congress developed a formula for apportioning the limited

waters of the Colorado River among several states and directed the

federal agency to implement it. The FWPCA is an entirely

different sort of law: it recognizes and actively encourages develop-

ment of many different approaches to ending water polluation.

9

willing to make sweeping changes which would abolish any

common law right of action.* This Court should give ef-

fect to the Congressional purpose, as the court did below.

Il The Federal Common Law of Nuisance Does Not

Conflict With the Regulatory Scheme

The FWPCA established a regulatory process in which

evolution and variety of standards are required. The

federal courts are equipped to develop common law

remedies in this context without interfering with EPA’s

operations.

It is surely significant that EPA has not only not dis-

approved the remedy in this case, but has expressed active

support of it, through the participation of the United

States as amicus in support of Illinois. Indeed, EPA itself

has pressed federal common law nuisance claims. United

States v. Outboard Marine Corp., 12 ERC 1348 (N.D.

Ill. 1978); United States v. Hooker Chemicals & Plastics

Corp., et al., Civil Actions Nos. 79-987, 79-988, 79-989 and

79-990 (W.D.N.Y.) EPA is clearly not concerned that its

ability to function will be interfered with by such actions.

Instead, it sees the common law as an additional tool, to be

used when and as appropriate—a sensible and practical

view.

A. The Act Provides For Evolution And

Variety Of Water Pollution Controls

Petitioners claim that the FWPCA established a uni-

form, final and exclusive scheme by which pollutant dis-

*Limiting the common law nuisance cause of action might

well lead to ramifications outside of the area of water pollution

or even of nuisance law. Moreover, even if Congress had intended

to limit the common law of nuisance, its power to do so would

be limited. Prof. Prosser states that in general, American legis-

latures have “. . . power to authorize minor interferences with

the convenience of property owners, but not major ones. .. .”

Prof. William J. Prosser, Law of Torts, West Publishing Co.,

1964, p. 628,

10

chargers could plan their activities. Petitioners’ Brief,

pp. 3, 18, 27. This construction of the Act is erroneous

and illusory. It is obvious from the Act itself and from

its legislative history, as clearly set forth in the opinion

of the Court of Appeals, that its aim is simply to achieve

clean water as soon as possible. It does not purport to

give pollutors any abstract rights. In particular, the

Act promises neither absolute uniformity nor finality on

the broad sense suggested by petitioners. Permits are

not granted as general defenses to any claim to imposition

of stricter standards.*

The regulatory scheme establishes uniform minimum

standards and encourages stricter variations. Petitioners

misinterpret the intent of the Act and its legislative his-

tory on this point. The law and legislative history set out

in petitioners’ brief, pp. 28-32, explicitly supports this

interpretation of the law, and not the theoretical ‘‘uni-

formity for uniformity’s sake’’ which petitioners would

have us believe insulates them from any obligation to

reduce polluting effluents. See, eg., Natural Resources

Defense Council v. Costle, 568 F. 2d 1369, 1378 (D.C. Cir.

1977) and Natural Resources Defense Council v. Train, 510

F. 2d 692, 711 (D.C. Cir. 1975).

Authority to promulgate uniform standards was

delegated to EPA in order to insure that the parochial in-

terests which might dominate some states could not lead

* Permits and licenses are by their nature limited: “Wherever

possible the authority given will be construed to permit only

reasonable conduct of the enterprise in a reasonable manner, with

proper care and due regard for the interests of others. . .

Prosser, op. cit. at p. 628. Also see Phalen v. Virginia, 49 U. 8.

(8 How.) 163, 167- 68 (1850). In addition, any exemption af-

forded by a license extends only so far as the express or necessarily

implied grant contained in the license. A license may not be

pleaded as a general defense. It must be apparent that the legis-

lature contemplated the doing of the very act which occasions

the injury which is claimed to be a nuisance. Richards v.

Washington Terminal Co., 233 U.S. 546, 552; (1914).

11

to less stringent standards which could undercut the pollu-

tion control efforts of their neighbors. EPA has therefore

set national minimum standards. Those states which wish

to go beyond the minimum are encouraged to do so by the

FWPCA.* 33 U.S.C. § 1370.

The Act directs EPA to “average” the pollution problem,

in order to address it from a national perspective, and

to incorporate general health and other scientific judg-

ments into standards. 33 U.S.C. $1314. Such standards

are necessarily bascd on an average of the water prob-

lems across the country. However, this use of averaging

does not mandate overall uniformity in EPA’s rules. The

averaging is not the end of the FWPCA; it is simply a

tool.

Wisconsin concedes that the stricter standards set by

states pursuant to the FWPCA are “a logical part” of the

“uniform” statutory scheme “because they promote more

vigorous anti-pollution efforts where circumstances war-

rant.” Wisconsin Brief, p. 10. Surely this is the same

goal sought by a federal court when applying the common

law, which is a result clearly contemplated by § 505(e)

of the Act. Congress clearly contemplated the use of a

wide variety of approaches to water pollution problems.

Petitioners also argue that the FWPCA Nationa] Pollu-

tion Discharge Elimination System (NPDES) is intended

to provide polluters with certainty concerning future

pollution control requirements.** 33 U.S.C. $1342. The

* Indeed, the FWPCA actively encourages individual ap-

proaches to water quality control. The Act designates the Great

Lakes and several other water bodies as in need of special atten-

tion. 33 U.S.C. § 1254(e) and (f), 1257, 1258, 1263; also § 1314.

The states are encouraged to go beyond EPA rules. 33 U.S.C.

§ 1370. In addition, many of the statutory provisions providing

for the issuance of research grants are designed to encourage

innovation on individual projects. 33 U.S.C. §§ 1254(h), (g), 1255.

** Petitioners’ Brief, p. 32, et seq.; also, Illinois State Chamber

of Commerce, p. 20, et seg.; and National League of Cities and

U.S. Conference of Mayors Brief, p. 8.

12

NPDES permit system is not static. Congress created a

dynamic scheme which would require polluters to upgrade

controls as technology improved. 33 U.S.C. $1370, 1254,

1255, 1256. EPA itself is required to foster evolution of

technical standards. 33 U.S.C. §§1311(d), 1314(a), (d),

and (f). Moreover, the entire first subchapter of the Act

promotes research programs. 33 U.S.C. §1251 et seq.

The Act provides only limited finality for permit holders.

This Court has recognized that the extent of the insula-

tion provided by the Act in § 402(k), 33 U.S.C. $ 1342(k),

is limited to “. . . compliance with those sections of the

Amendments on which the permit conditions are based.”

EPA v. State Water Resources Control Board, 426 U.S.

200, 205 (1976). The permit defines and facilitates en-

forcement of most but not all of a discharger’s obligations

under the Amendments:

. . The purpose of § 402(k) seems to be to insu-

late permit holders from changes im various regula-

tions dwring the period of a permit and to relieve

them of having to litigate in an enforcement action

the question whether their permits are sufficiently

strict. In short, § 402(k) serves the purpose of giving

the permits finality.

E.I. du Pont Nemours & Co. v. Trai, supra, 430 U.S.

at 138, n. 28. (Emphasis added)

Thus, the assurances granted by permit are limited to

actions taken pursuant to the Act itself and to the dura-

tion of the individual permit.* The context within which

Congress wrote the FWPCA remains highly variable.

*In addition to common law nuisance claims and to EPA

actions which will implement improvements in pollution controls,

there are other potential sources of change in pollution control

requirements. For example, other common law tort actions, such

as negligence and wrongful death, may lead to court orders that

pollution controls be upgraded. State laws and local ordinances

(footnote continued on following page)

13

There is no basis for petitioners’ argument that they are

entitled to uniform standards or to some sort of finality.

B. The Courts Will Apply the Federal

Common Law of Nuisance Within

the Statutory Framework

There is no reason to expect that the federal courts will

apply the common law so as to undermine EPA regula-

tions. In the instant case, the district court set standards

which went beyond the EPA standards, but the Act in-

tended that some pollution sources would be subject to

stricter standards than EPA established for the majority.

33 U.S.C. $1370. The court of appeals also looked to the

statute for guidance and accordingly modified the district

court’s remedy in light of the statute and EPA 1cgula-

tions.*

(footnote continued from preceding page)

may also be changed to require stricter controls, a process for

which Congress has provided. 33 U.S.C. § 1370. Moreover, in a

mandamus action, local, state or federal standards might be over-

turned on the ground that essential health considerations, per-

haps newly discovered, must be taken into account in setting

such standards. The future adequacy of pollution control ex-

penditures may be affected by numerous sources of law, none of

which were abolished by the FWPCA,

*In addition, contrary to petitioners’ suggestion, the Court

of Appeals took into account the cost/benefit analysis presented to

the district court. 599 F. 2d at 173. Petitioners argue that Con-

gress concluded that the federal courts are not equipped to make

decisions regarding water pollution control. Petitioners’ brief, p.

30. This is clearly not the case as Congress has provided that. these

courts should apply the common law and review the agency’s

decisions. 33 U.S.C. § 1365. Tort actions are often complex and

involve technical questions, yet the federal courts regularly address

them. There is no reason to distinguish a nuisance action relating

to water contamination from other tort cases. Moreover, the fed-

eral courts have at their disposal Federal Rule of Civil Procedure

53, which provides for the appointment of special masters. This

tool allows a court to pick a competent and highly trained expert

in the field to hear testimony, make findings of fact and advise the

court in those areas in which it might otherwise be unfamiliar.

14

The Seventh Circuit opinion addressed the distinction

between established common law actions and statutory en-

forcement actions and it discussed the concept of ‘‘common

law of the statute.’’ The latter phrase refers to the court’s

role in making case law which specifically fills in interstices

in a statute. This case law is developed pursuant to the

principles and goals of the relevant statute. Illinois v.

Milwaukee, 599 F. 2d at 163-64. In the instant case, the

court below drew upon the FWPCA, as well as the com-

mon law of nuisance, to address the unique facts of this

case. The Seventh Circuit’s opinion is a particularly ap-

propriate judicial use of the two sources of law.

While Congress clearly intended EPA to be the primary

vehicle for implementing the national water quality clean-

up, there is no basis whatsoever for arguing that Congress

intended to preclude the federal courts from exercising

their own skills in situations which call for other or addi-

tional remedies than those available to EPA.

Petitioner also makes much of the economic difficulties

which municipalities face in bringing their sewage disposal

practices into conformance with federal law. Petitioners’

Brief, pp. 42 et seq. Even assuming that such difficulties

confront many municipalities, these financial burdens cer-

tainly vary widely in amount, nature and duration. There

is no reason to allow all municipalities to shield them-

selves with the financial weakness of a few. Moreover, an

individual defendant’s financial ability to abate a nuisance

would be a proper issue for a court in a tort action.*

—

* This principle is particularly important where a polluter has

failed to operate in as clean a manner as is reasonably practicable.

Pollution may be caused by a private industrial concern and may

take its toll in health or economic costs, which should not be left to

be borne by neighboring citizens.

Professor Prosser discusses the kinds of balancing judgments

which are appropriate in a nuisance case. ‘‘. . . There is no

liability for nuisance unless the defendant’s conduct is unreasonable

(footnote continued on following nage)

15

III. The Constitution Guarantees State Governments

a Federal Forum In Which To Seek a Remedy for

An Interstate Nuisance.

Article III of the United States Constitution provides the

states with recourse to the federal courts for redress of

injuries caused by out-of-state sources.* This forum is an

essential underpinning of the federal system. The Union

rests on the ability of the system to accommodate dif-

ferences and maintain harmony.

(footnote continued from preceding page)

under the circumstances.” Prosser, op. cit., at 602. The fact that

nuisance claims are measured in part by negligence standards is an

important facet of the common law of nuisance. Prosser, op cit.,

p. 598. A permit does not give its holder the right to unnecessarily

interfere with the rights of others. Negligent conduct thus may

cause an actionable nuisance, in spite of any permit or license.

The FWPCA sets a minimum level of pollution control. It does

not provide a general license to negligently pollute without regard

to harm to others.

*The Court has discussed its discretion not to exercise its

original jurisdiction in all cases. Ohio v. Wyandotte Chemicals

Cargo, 401 U.S. 493 (1971) ; Illinois v. City of Milwaukee, 406 US.

91 (1972). In Ohio v. Wyandotte, the Court explained that it

would decline to accept a case brought by a state only when it

could ‘‘. . . say with assurance that .. . declination of jurisdiction

would not disserve any of the principal policies underlying the

Article III jurisdictional zrant. ...’’ 401 U.S. at 499. In that

case, because no federal question was raised by the bill of com-

plaint, the petitioner was left to pursue its remedies in its own

court system, even though the respondents were located in Canada

oy a neighboring state. See 1972 Wisconsin Law Review 597,

-8.

In Illinois v. Milwaukee, one year later, the Court decided that

the federal common law of public nuisance is included in the

phrase “laws of the United States”, in 28 U.S.C, § 1331(a), which

establishes the original jurisdiction of the federal district courts.

The motion for leave to file a bill of complaint was therefore denied

without prejudice to bringing the action in the district court. This

decision better serves the principles underlying Article III than

does Wyandotte. This is because the federal district court has

jurisdiction over all the parties within the United States and has

no reason to discriminate in favor of one locality over another.

Wisconsin v. Pelican Instirance Co., 127 U.S. 265, 289 (1888).

16

In Missouri v. Illinois, 200 U.S. 496 (1906), the Court

held that a federal common law of nuisance must exist to

redress an affront to a state’s physicial integrity, such as

water pollution, which is caused by a party in a neighbor-

ing state. Writing for the Court, Justice Holmes reasoned

that a sovereign which was not a member of the Union

might go to war with a neighbor to end such a nuisance.

The states, in forming the Union, relinquished this pre-

rogative in exchange for a federal judicial forum. 200 U.S.

at 520-21 (1905).*

The Court has many times enumerated the constitutional

limits which cireumscribe the exercise of Congressional

power to regulate interstate commerce, the authority under-

lying the FWPCA. National League of Cities v. Usery,

426 U.S. 833 (1976), is particularly relevant here. In that

case, the Court held that to the extent that the Fair Labor

Standards Act Amendments of 1974 operated to directly

displace the states’ freedom to function in traditional

*TIn a later air pollution case, Justice Holmes described a suit

by state for an injury to it as brought in its capacity as quasi-

sovereign ;

... In that capacity the State has an interest 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 its forests and its inhabitants

shall breathe pure air. ...

. . »« When the States by their union made the forcible

abatement of outside nuisances impossible to each, they did not

thereby agree to submit to whatever might be done. They

did not renounce the possibility of making reasonable demands

on the ground of their still remaining quasi-sovereign in-

terests; and the alternative to force is a suit in this court.

Missouri v. Illinois, 180 U.S. 208, 241.

Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

Accord, Kansas v. Colorado, 206 U.S. 46, 98 (1907) ; New York v.

New Jersey, 256 U.S. 296, 301-2 (1921); Nebraska v. Wyoming,

325, U.S. 589 (1945); State of Texas v. Pankey, 441 F, 2d 236

(10th Cir. 1971).

17

governmental roles, the statute was invalid as not within

the authority to regulate interstate commerce. 402 U.S.

at 852, 858.

The controversy in National League of Cities v. Usery,

concerned the breadth of the Congressional power to

regulate the state’s participation in interstate commerce as

employers.* The present case presents a clearer issue.

The state function at issue here lies at the very heart of

governmental function. When a state acts as parens

patriae to abate an injury to its physicial integrity, it is not

engaging in commerce. Rather, it is functioning as a

sovereign, which not only may, but must, act to protect the

health and welfare of its citizens.

The states have retained both the authority and the re-

sponsibility, as parens patriae, to use the police power when

necessary to protect the health and welfare of citizens.

Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972);

State of West Virginia v. Chas. Prizer & Co., 440 F. 2d

1079 (2nd Vir.), cert. denied sub nom. Colter Drugs Inc.

v. Chas. Pfizer & Co., 404 U.S. 871 (1971); Cities Service

Oil Co. v. Roberts, 62 F. 2d 579 (10th Cir. 1933); Board of

Supervisors of Fairfax County, Virgmia v. U.S., 408 F.

Supp. 556,566 (E.D. Va. 1976). In the latter case the dis-

trict court explained the meaning of the phrase parens

patriae: a

The term literally means ‘parent of the country’ and

traditionally refers to the role of the state as sov-

ereign and guardian of persons under its protection.

[Citations omitted]. Thus, the concept of parens

*The case prompted a concurring opinion and two dissents.

Concurring, Mr, Justice Blackmun read the majority opinion not

to ‘‘. . . outlaw federal power in areas such as environmental

protection, where the federal interest is demonstrably greater and

state facility compliance with imposed federal standards would be

essential. ...’’ 426 U.S. at 856. New York agrees with this

statement and notes that, in the present case, Illinois is not re-

sisting compliance with federal standards, but is seeking to supple-

ment them, as Congress has encouraged it to do. 33 U.S.C. § 1370.

18

patriae is closely linked to that of sovereignty and

has been most frequently applied when a state seeks

to prevent or repair harm to its quasi-sovereign in-

terests. Hawat v. Standard Oil Co., 405 U.S. at 258,

925 Ct. 885 (1972) and cases cited therein.

408 F. Supp. at 566.

While the states primarily attend to problems wholly

within their borders, interstate conflicts do occasionally

arise in which the health and property of one state’s citi-

zens are endangered by activities conducted in a neighbor-

ing state. As the Seventh Circuit stated below:

. . . We can think of no other reason for Congress

preserving previously existing rights and remedies

than to protect 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 neighbor-

ing state, the federal common law of nuisance provides

a peculiarly appropriate remedy.

Illinois v. Milwaukee, supra, 599 F. 2d at 165.

The state government is the sovereign that is charged

with the parens patriae responsibility. If the Court were

to hold that the federal common law of public nuisance

has been restricted by the FWPCA Amendments, it would

leave state governments at the mercy of the EPA’s limited

power and discretion to remedy environmental health

problems. Moreover, such a holding would also result in

a violation of the states’ Constitutional right to seek re-

dress of significant injuries in a federal forum, which in

certain circumstances is an essential precondition to a

state’s exercise of its parens patriae responsibilities.

The right of states to local self-government is protected

by the Constittuion. Each state and region exists in an

idiosyncratic ecology, with particular geographic resources

upon which its survival depends. Also, each local econ-

omy is different from the next and interacts differently

with its physical and social environment. The Court has

19

recognized this practical reality in an analogous context.

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

(1972), addressing an air pollution problem, the Court

noted that “. . . geophysical characteristics which define

local and regional airsheds are often significant considera-

tions in determining the steps necessary to abate air

pollution. . . .” The Court held:

As a matter of law as well as practical necessity

corrective remedies for air pollution, therefore, nec-

essarily must be considered in the context of localized

situations. (Footnote omitted) ...

406 U.S. at 115-16.

Each state has a unique environmental setting and is re-

sponsible to its citizens for preserving it. The initiative

of the state government in addressing local health and

environmental problems is an essential governmental func-

tion which must be respected. Chief Justice Chase de-

clared, in Texas v. White:

. . . [iJt may be not unreasonably said that the

preservation of the States, and the maintenance of

their governments, are as much within the design and

care of the Constitution as the preservation of the

Union and the maintenance of the National govern-

ment. The Constitution, in all its provisions, looks

to an indestructible Union, composed of indestructible

States.

74 U.S. (7 Wall.) 700, 729 (1868).

In a case which concerned a closely related question,

the Second Cireuit Court of Appeals upheld water pollu-

tion control measures which were stricter than EPA stand-

ards and said:

By the contemplation of minimum federal standards

. . . Congress did not intend to relegate the States to

the status of enforcement agents for the executive

branch of the federal government. To the contrary, it

is indisputable that Congress specifically declined to

20

attempt a pre-emption of the field in the area of water

pollution legislation, and as much as invited the States

to enact requirements more stringent than the federal

standards. (Citations omitted)

Mianus River Preservation Committee v. EPA, 541

F. 2d 899, 906 (2nd Cir. 1976).

The Court in that case found that Congress had explicitly

encouraged states to legislate independently of EPA.

The Attorney General for the State of New York submits

that Congress intended that state executives be in-

dependent in their pursuit of improved water quality. Both

the Constitution and the FWPCA require that the states

retain the option of going to federal court to seek a remedy

for an injury which EPA has not addressed or has

addressed inadequately.

Conclusion

Wuenrerore, the Attorney General for the State of New

York respectfully submits that the Corrt should affirm the

decision of the court below.

Dated: New York, New York

Respectfully submitted,

Rospert ABRAMS

Attorney General of the

State of New York

Amicus in Support of Respondent

2 World Trade Center

New York, New York 10047

Tel. No. (212) 488-7561

Suimtey ApDELSON SIEGEL

Solicitor General

Cyrit, H. Moors, Jr.

Mary L. Lynpon

Assistant Attorneys General