Petitioners Brief — Middlesex County Sewerage Authority v. National Sea Clammers Assn.

Supreme Court brief1981

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Text

Nos. 79-1711; 79-1754; 79-1760; 80-12 (Consolidated)

sicteme Court, U.S,

FILED

STYLES » i999

IN THE

Suprene Court of the United

Ocroser TERM, 1980

‘

--~---~-~

NATIONAL SEA CLAMMERS ASSOCIATION, e¢ al.

JOINT MEETING OF ESSEX AND UNION COUNTIES,

Petitioner (79-1754)

NATIONAL SEA CLAMMERS ASSOCIATION, e¢ al.

CITY OF NEW YORK AND ABRAHAM BEAME,

Petitioners (79-1760)

Uv.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

ENVIRONMENTAL PROTECTION AGENCY, et al.

Petitioners (80-12)

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, et al.

On Writs of Certiorari to the United States Court of Appeals

for the Third Circuit

BRIEF FOR PETITIONERS MIDDLESEX COUNTY SEWERAGE

AUTHORITY, TOWNSHIP OF MIDDLETOWN SEWERAGE

AUTHORITY AND BERGEN COUNTY SEWERAGE AUTHORITY

STEPHEN J. MOSES MILTON B. CONFORD

1 Essex Street Wilentz, Goldman & Spitzer

Hackensack, New Jersey 07601 A. Professional Corporation

(201) 343-6612 900 Route 9

Counsel for Petitioner, Woodbridge, New Jersey 07095

Bergen County Sewerage Authority (201) 636-8000

MENELAOS W. TOSKOS Counsel for Petitioners,

Of Counsel Middlesex County Sewerage Authority and

Township of Middletown Sewerage

VINCENT J. JENNINGS Authority \

Of Counsel for Petitioner FRANCIS X. JOURNICK

Township of Middletown Sewerage MARVIN J. BRAUTH

Authority Of Counsel -

Furman & Jennings, Attorneys

ann CORR TEIN P| RO I

Petitions For Certiorart Fitep Aprit 29, 1980 (79-1711); May 5, 1980

(79-1754) ; May 5, 1980 (79-1760) ; JuLy 3, 1980 (80-12)

CERTIORARI GRANTED Ocrober 20, 1980

Questions Presented for Review*

1, Whether the Federal Water Pollution Control Act,

33 U.S.C. (& Supp. I) §§ 1251 et seg., and the Marine Pro-

tection Research and Sanctuaries Act of 1972, 33 U.S.C.

(& Supp. I) $$ 1401 e¢ seq., imply a private right of action

independent of the rights explicitly created by the citizens

suit provisions of those Acts, 33 U.9.C. §§ 1365(e) and

1415(g).

2. Whether a private citizen has standing to maintain

a federal common law nuisance action for alleged dam-

ages sustained resulting from ocean pollution as a general

federal question under 28 U.S.C. § 1331.

3. Whether any federal common law nuisance action for

alleged damages sustained resulting from ocean pollution,

if available to a private citizen, is not preempted by the

present regulatory scheme governing ocean pollution es-

tablished by the Federal Water Pollution Control Act and

the Marine Protection, Research and Sanctuaries Act.

* These are the questions to which the review is limited under

the grant of certiorari (J.A. 48a).

TABLE OF CONTENTS

PAGE

QuEsTIONS PRESENTED FOR REVIEW ....----...-.------- (after cover)

Cases Crrep .............;. BIS Ot OP LN Bt EON ORR WO Bet Toe SF i

Statutes Crrep PRR 8 eM LER OP se iv

Rouwes CItTep .. ; AM Sap RP ORAS Pe . Vili

LEGISLATIVE Reports CITED .....--. a ix

OTHER AUTHORITIES CITED ............... ix

List oF Partiss .....

OPINIONS AND JUDGMENTS BELow ......

JURISDICTION OF SUPREME COURT -..o-ccss-coseceecseeoee-

ConSTITUTIONAL Provisions, StatTuTes AND ReGuua-

2 RRS REN at tee Sc RON Model 7S aeRO 2

SR WI CA ons ccc cscncsscaceutblesemipasrensnactenin 2

SUMMARY OF ARGUMENT ..........--ceccecceoeeoeeee gd 7

ARGUMENT:

Point I—Neither the FWPCA, as amended, nor

the MPRSA, as amended, imply a private right

of action under those statutes independent of

the citizens suit provisions thereof ..................-.- 12

Point II—The jurisdiction of federal courts un-

der 28 U.S.C. $1331 to entertain federal com-

mon-law nuisance actions brought on behalf of

plaintiff states for alleged damages from

ocean pollution does not extend to private citi-

eRe DR NC DERE So eR TEEN EEN 19

1. Illinois v. Milwaukee envisaged only suits

at the instance of states or state agencies... 19

TABLE OF CONTENTS

PAGE

2. Illinois v. Milwaukee authorized only a suit

for abtement of nuisance, not an action for

damages 23

3. Policy considerations relative to the best in-

terests of a national water pollution strategy

argue for restriction of the federal nuisance

action 24

Point III—If a federal common-law nuisance ac-

tion for ocean pollution is otherwise available

to a private citizen, such an action should be

held preempted by the present regulatory

scheme in that area established by the FWPCA

and the MPRSA 31

1. The “savings clause” of FWPCA and MP

RSA do not preclude a finding of preemption 32

2. The present scope of FWPCA and MPRSA

justifies preemption of federal common-law

nuisance actions against sewerage awencies

which discharge effluent and dump sewerage

sludge under permits pursuant to those

statutes slidevtantbicadintcisti 34

(a) FWPCA is now of preemptive scope ...... 35

(b) MPRSA is of preemptive scope .............. 40

3. Considerations of law and policy bespeuk

preemption in this area ............... a 43

ConcLusion 47

Cases Cited

Burbank v. Lockheed, 411 U.S. 624 (197 ee ne 33, 43

Byram River. v. Village of Portchester, 394 F.Supp.

618 (S.D.N.Y. 1975) ... ‘ , 21

TABLE OF CONTENTS iii

PAGE

Califano v. Sanders, 430 U.S. 99 (1977) . 15, 33

Cannon v. University of Chicago, 441 U.S. 677 (1979) 17

City of Evansville, Ind. v. Ky. Liquid Recycling, 604

F.2d 1008 (7 Cir, 1979) ceeovvvvvccconvccvceesseseeeeeseeeees 14, 17, 18, 21

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

Cir, 1975), cert, den. 424 U.S. 927 (1976) v0... 14, 15, 21

Committee for Con. of Jones Falls Sewage System

v. Train, 375 F.Supp. 1148 (D. Md. 1974), affirmed

on other grounds consistent with that of the district

court on the instant issue, 539 F.2d 1006 (4 Cir.

1976) petcahiesGaadbediebiidl means 21-23, 44, 45

Com. of Mass. v. United States Veterans Admin., 541

F.Supp. 119 (1 Cir. 1976) - 31

Conservation Soe. of S. Ver. Inc. v. Secretary of Tran.,

— Fs & Bi ge 2. -/ | RRRResmamnnaleemanceoeemean 15

Cort v. Ash, 422 U.S. 66 (1975) ..... 7, 8, 14, 16, 18

EPA v. Water Resources v. Water Resources Control

I I I ID ilcdirgedss freer oceccinonienapaicmsanpsesaneonecinnlaie 35-37

East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d

1289 (2 Cir. 1977) ... ee 21

Erie R. Co. v. Tompkins, 304 U.S. 64 (1988) ................ 29

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) 20

Hinderlider v. La Plata R. and Cherry Creek D. ie

BOG TET. BE CADIS) acicrecrsnssgicccrnnensnes 20

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) ..6, 9, 10, 19-

25, 27, 34, 40, 44

Jones v. Roth Packing Co., 480 U.S. 519 (1977) -........... 33, 43

Natural Resources Defense Council v. Callaway, 524

F.2d 79 (2 Cir. 1975) 15

iv TABLE OF CONTENTS

PAGE

Natural Resources Defense Council Ine. v. Train, 510

F.2d 692 (D.C. Cir. 1975) . . 15

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

€25 (Comm, 1979) sce icin: Aa

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

1976), aff'd without opinion sub nom. ..................-...... 21, 22

People of State of Ill. v. City of Milwaukee, 599 F.2d

BPE CF CA TRUBS wvesicicsenssssesennl thai 44

Philadelphia v. New Jersey, 437 U.S. 617, n.4 (1978) ..33, 43

Potomac River Ass’n. Ine, v. Lundeberg Maryland

Seamanship Schools, 402 F.Supp. 344 (D. Md. 1975) 44

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

Stone v. Powel, 428 U.S, 465 (1976) .o..n..cccoccsccscceeceecceecee 29

Stream Pollution Bd. of Ind. v. U.S. Steel Corp., 512

F.2d 1036 (7 Cir. 1975) aa saiipialatchiegetiilian 21

Texas v. Pankey, 441 F.2d 236 (10 Cir. |. i | Peewee 20, 21, 25

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) ....7, 8

16, 18

Transamerica Mortgage Advisors v. Lewis, 444 U.S.

NE pemmteamhh BOR TG Va! SeieReay enna bee Soran Vs 7, 8, 16-18

United States v. Atlantic-Richfield Co., 478 F. Supp.

1215 n.5 (D. Mont. 1979) 45

Wallis v. Pan American Petroleum Corp., 384 U.S. 63

(1966) 30

Wheeldin v. Wheeler, 373 U.S. 647 (1963) o....ccecceccssecsee. 29

Statutes Cited

Administrative Procedure Act:

DO A welding ec i ie 2 ei 15

TABLE OF CONTENTS v

PAGE

L. 1948, ¢. 758 ‘ 5)

id Ss SOE Be] occrecmenccmn isabel 3

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PE hs CI acicvensicicietntassibinwinitniedpenoaatiniaibenacsdiea ae 7

15 U.S.C.(Consumer Product Safety Act) :

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St. TREO B) esseccctncicccsssnnnsoaeeisceeeniaena 32

28 U.S.C.:

UR, BERD senemnintcenctiemnnsaenn 1

Ce IT naccsinsncisesisinstiastaiueesiccsieinaesnabhcaeiaeiiaaiiaaannaaae 15, 19

TRGG, - RESIN GPRD. sisncsicistieansnlccancielileniessehecbani annulate ammneIRS 15

33 U.S.C. (Clean Water Act of 1977) (Federal Water

Pollution Control Act, as amended) (Supp. I):

FI GER cencnieaecisndsnteowonspiesnislinnninntnnetagiaiounst dacieaaitsiaiaaaaa 2

BIND IE nccecsesisccesniesssapsinhscernstedsitinccensieadgeadnitliacaedaunaamaaaaaniae 5, 35

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BOO. TRG CGD ssicsassicisscinvenitindnsatancermscabebaiapiachanincatae 35

vi TABLE OF CONTENTS

PAGE

33 U.S.C. (Clean Water Act of 1977) (Federal Water

Pollution Control Act, as amended) (Supp. I):

ee. B1G0Co) (5) and (2) 0 36

co ee: DRONES RORY BREF ATCOR Ca REPEC! U2 36

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Pa SURE CRUAD eos 37

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BN NO i ihniitl atc hdath ceurtiimacriadadiocremiecae eet 2, 39

Be ID aii tinicnneinenipssnadsindedisioabieme ee em 37

See. 1911(b)(1)(B) 37

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nse Hee | Lt | Ee RE SE. 37

FO TRI) cecensarscistsnde asec snhintepicdnsanhses nhccnce Le 37

See. 1312(b) sui 37

co ie | | |) I Ae cn nn Ae oe, 37

Se | (.) 37

mee. TS18(d) 37

oe >: (-) cee 37

3 ¢:) ccc 38

See. 1319(a) (1) 2... .ecccccecccecceccneeneceseenceeeeeoeecoeeocecccc 38

a LD | ¢ |) cc 38

vets Mh a ag Te 38

TABLE OF CONTENTS Vii

PAGE

33 U.S.C. (Clean Water Act of 1977) (Federal Water

Pollution Control Act, as amended) (Supp. I):

Sec.

See.

Sec.

See.

Sec.

See.

IR NEE dncchobsisbsthbinsnansiieio caudessnass ctececakbaccommndiipiotie 17,38

TRIE ceiiaisd jkonncbsendclsdesdricaiaddiancecnpuntbencibinh deciceaiabieaiigeren 4, 37

PRE F Sicrdniipse ce acisereninccageecinenhdiibecednds 38

1342(3) (3)-(d) (5) --.--.-.-.-n--necnecseee Pees Thaes ewe 38

PI BID saneiicascnsessannecsacsnniesnnipniegtianidininanciecaigaiad 37

RE lactic shiindainnieckineacorpeeatanieanahenmdaghaied 16, 17

SOUND cicsiscekitesiionciinemangiscicnnncnnseneenddinenpinlio 15

IAD satkaniatichiescasvckotstniige pauiaioemsnaelantes 8, 12, 13, 15

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BSD sssjcsicstseicneadcdercal nals labeecindlenicaaghsanneasitents 40

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UD Vissscssiscehcodansdd elacap classe idesualconatanaamlamsas 41

RA sisdnigieds tustideibccsacchsactaibakanseisiecendsbticeatnadiabanisa cubes 4

Tc" S| | RRO Se SALOMON RECO Mw Neer WONT Heron Set

2S RCRA NLS ee ensais es by AIR PFE Seve HG 41

IDI cicswakntidsechidanchcaieesdasiiaeaaausaialamatipalaanel 40

BAILED ssi licsssessraniiccisstain detains anaibcidiniasuieaandacsaanaiaaie 42

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SEE BRS escictciingenimenintimmnnaiianiianninnn 42

—

Vili TABLE OF CONTENTS

PAGE

33 U.S.C. (Marine Protection Research and Sanctu-

aries Act, 1972) (Supp. I):

I Oil acai iestclceaicpessnccesinseded onerpa has nud tian 14

FON IE stintpriciieceiociesstilbtdlieisnbnnttaadidesic cis 17

I PU ienciniceididela et ont ar hoe bah ae | 12, 17,18

Se a, | ND IS PLO NS 12, 13

Sop sede Oe nO REE RTT OT TOUR 5)

eee TOROS) 8, 12, 41, 42

33 U.S.C. (Refuse Act):

spetaesbtaraie Re OT see 5

42 U.S.C. (Clean Air Act):

sag) Rhee ee oe A LETT AS 13, 14

PN ili a A 32

42 U.S.C. (Noise Control Act of 1972):

RN ED sctictalneiiea het iy ee 32

42 U.S.C. (Safe Drinking Water Act) (Supp. II):

a). |) Ea Eee eae See 32

ata in NC CRIS: SNA 1

TABLE OF CONTENTS ix

PAGE

Legislative Reports Cited

S. Rep. No. 92-451 1972, U.S. Code & Adm. News,

- ESRAURE TD RR PS PMG Other oh ramen eyed fe had EAE 41,43

S. Rep. No. 414, Reported in 1972, U.S. Code Cong.

Pe IN, THOT Sy BOE tireiineinisicedpnccincnacienneadmad 13, 39

S. Rep. No. 1801, Reported in 1972 U.S. Code Cong.

, BIC Si Ge eecctticccitsrentininesnningeieiane 13

S. Rep. No. 91-1196 (1970) -............-... oa 13

S. Rep. 1972, U.S. Code Cong. & Adm. News p. 3745 40

S. Rep. 1972, U.S. Code Cong. & Adm. News p. 3758... 39

Other Authorities Cited

Friendly, “In Praise of Erie—And Of The New Fed-

eral Common Law” 39 N.Y. Univ. L.Rev. 383 passim

[TIPITIED acscssimacvicsstniccensiniicenaiashsiiaiandcipinialiaiadchamtaiaa taal 29

I Grad “Treatise on Environmental Law” (1979),

Ee Se Sp eNeNS ERE ORA ERAT U ei 24, 25

Hart & Wechsler’s “The Federal Courts and The Fed-

eral System” (1973, 2d ed. Bator, Mishkin, Sha-

piro and Wechsler) p. 806 2. 23, 26

Note, “Federal Common Law and Interstate Pollu-

tion”, 85 Harv. L. Rev. 1439, 1451-1452 (1972) ...... 25, 26

Krier, “Environmental Law and Policy 208-232 (1971) 28

Restatement of Torts, Second (1977):

PR, SEIU IED ceisivieccsevncnndttccbnseiciabdpaeiannnpie maaan 29

BD: TIE wicinsninedisirenssnrnitiieiuiabstetinmsadbipiitaaaaaiiomea naam 29

TABLE OF CONTENTS

Stewart, Pyramids of Sacrifice? Problems of Fed-

eralism in Mandating State Implementation of

National Environmental Policy”, 86 Yale L.J. 1196

FUNTEE Aciitidasateseiety enue oe

USEPA, “Environmental Impact Statement on the

Ocean Dumping of Sewage in the New York Bight”

(Final Statement, September 1978), p. 17 (“ETS”)

Wright, “The Federal Courts and The Nature and

Quality of State Law”, 138 Wayne L.Rev. 317 (1967)

Zener, “The Federal Law of Water Pollution Con-

trol” in EK. Dolgin & T. Guilbert, “Federal En-

vironmental Law” 788 (1974) ..ccccccccccecccccscscececocooeos.,

PAGE

List of Parties

All parties are set forth in the caption of the cause set

forth on the cover of the petition for certiorari of Mid-

dlesex County sewerage Authority, et al. (No. 79-1711).

Opinions and Judgments Below

The opinion of the Court of Appeals for the Third Cir-

cuit, filed February 5, 1980, is reported at 616 F.2d 1222.

The opinion of the District Court for the District of New

Jersey is unreported officially but appears at 12 Z.R.C.

1118.

The opinion and the judgment of the Court of Appeals

appear in the appendix to the petition for certiorari of

Middlesex County Sewerage Authority et al, at pp. la and

38a, respectively; and in the appendix to the petition for

certiorari of Environmental Protection Agency et al. at

pp. la and 32a, respectively.

The opinion and order of the District Court appear in

the appendix to the petition for certiorari of Middlesex

County Sewerage Authority et al. at pp. 40a and 68a re-

spectively; and in the appendix to the petition for certiorari

of Environmental Protection Agency et al. at pp. 35a and

60a, respectively.

Jurisdiction of Supreme Court

Jurisdiction of this Court is invoked by petition for

certiorari pursuant to 28 U.S.C, §1254(1) on grounds of

error in the judgment of the Court of Appeals warranting

review by this Court. Certiorari was required to be sought

within 60 days after entry of judgment. Rule 20.1.

Constitutional Provisions, Statutes and Regulations

No constitutional provisions are involved herein. The

statutes involved in the ease are voluminous. The per-

tinent provisions, except for one, are set forth in the

appendix to the petition for certiorari of these petitioners

(72a to 105a). The regulations of the United States En-

vironmental Protection Agency incidentally involved are

extremely voluminous. The text of any particular regu-

lation is not pertinent to the issues herein. They are there-

fore not set forth.

Section 41 of the Clean Water Act of 1977 (ederal Wa-

ter Pollution Control Act, as amended (Supp. I) (33 U.S.C.

Supp. I $1297), omitted from petitioners’ appendix, is as

follows:

“§ 1297, Any guidelines for cost-effectiveness analy-

sis published be the Administrator under this sub-

chapter shall provide for the identification and

selection of cost effective alternatives to comply

with the objective and goals of this chapter and

sections 1281(b), 1281(d), 1281(@)(2)(A), and 1311

(b) (2) (B) of this title.”

Statement of the Case

The petition for certiorari in No. 79-1711 was filed by

five of the six New Jersey public sewerage disposal agen-

cies made defendants in ihe action instituted in the Dis-

trict Court. Three of them are represented by this brief.

The petition sought review of a judgment of the United

States Court of Appeals for the Third Cireuit which re-

versed a judgment of the United States District Court for

the District of New Jersey (Honorable If. Curtis Meanor)

which dismissed on grounds either of absence of jurisdie-

tion or failure to state a claim upon which relief ean be

granted the complaint of the plaintiffs secking both in-

junctive relief and damages against numerous federal, New

York and New Jersey state officials and agencies con-

——— ae

cerned either with the public disposition of sewage or the

administrative regulation of the activities of such agen-

cies. Some of the defendant sewage disposal agencies,

including these petitioners, are constituted under New Jer-

sey state authority, others under New York.

The substance of the complaint, set forth in eleven counts,

is that defendants by acts of commission or omission have

caused or permitted the pollution of the Atlantic Ocean

resulting in such damage to the marine environment as to

have adversely affected plaintiffs’ commercial business of

fishing, clamming and lobstering on the shores or in the

waters of the ocean. (J.A.18a et seq.).

Petitioners are public instrumentalities of New Jersey

created under and pursuant to N.J.S.A. 40:14A-1 et seq.,

40:14B-1 et seg. or 58:14-1 et seq.. Petitioner Middlesex

County Sewerage Authority* (MCSA) is generally typical

of the other New Jersey petitioners in scope of activity,

some of them being smaller and others larger. MCSA is

responsible for the sewage disposal of 28 municipalities in

and adjacent to Middlesex County and a number of large

industries. The population it serves is approximately

600,000, Its capital investment is about $250,000,000 and its

operating budget for 1980 is $14,874,000. Its operating ex-

penses are met by local taxes and sewer connection fees

charged member municipalities and industrial users. Sev-

eral of petitioners are undergoing a capital expansion pro-

gram mandated by state and federal environmental au-

thorities and substantially financed by federal grants pur-

suant to the Federal Water Pollution Control Act

(FWPCA) and the Marine Protection, Research and Sanc-

tuaries Act (MPRSA). In the case of MCSA, the expenses

of expansion and rising operating costs have almost

doubled charges to users in the past year.

* Since filing the petition the namie of this petitioner has been

changed to Middlesex County Utilities Authority. The original

name will be used herein.

Existing regulations of the United States Department

of Environmental Protection (“EPA”) and the 1977 amend-

ment of MPRSA mandate eessation of ocean dumping of

sewage sludge* by December 31, 1981. 33 U.S.C. $141 2a..

Petitioners are in the course of active transition from ocean

dumping to landbased alternatives for disposition of such

sewage sludge under a schedule of interim permits issued

by EPA for ocean dumping at a fixed location, and de-

signed to effect such a shift by the stated termination date.

Petitioners have held such permits at all times complained

of by plaintiffs.

Petitioners are subject also to EPA permit control of

their discharge of sewage effluent into various streams and

the ocean under authority of FWPCA. MCSA holds a dis-

charge permit from EPA issued October 31, 1974 under the

National Pollutant Discharge Elimination System (NP-

DES) created under the 1972 amendment of FWPC'A (33

U.S.C. $1342). It is believed the other New Jersey peti-

tioners a'so hold such permits.

In the instant class action, plaintiffs seek not only judi-

cial abatement of ocean dumping of sewage sludge by peti-

tioners, thereby disrupting the measured progress toward

that end now being effected administratively under Con-

gressional mandate, direction and financial support, but

also demand, on behalf of members of the affected class,

compensatory damages of $250,000,000 and punitive dam-

ages of $250,000,000 from defendants.

Since 1924 municipal sewerage authorities in New York

and New Jersey have dumped sewage sludge at a dump site

in the Atlantic Ocean approximately 12 miles east of Long

Branch, New Jersey (the New York Bight). The Army

* Defined in the act as such “waste generated by a municipal

wastewater treatment plant the ocean dumping of which may un-

reasonably degrade or endanger human health, welfare, amenities

or the marine environment, ecological systems, or economic po-

tentialities” (emphasis added). §1412a.(b).

Corps of Engineers has dumped dredged materials at a

nearby site. See USEPA, “Environmental Impact State-

ment en the Ocean Dumping of Sewage in the New York

Bight” (Final Statement, September 1978, p. 17 (“EIS”).

Ocean dumping of wastes began to be regulated federally

in 1899, Refuse Act, 33 U.S.C. §407, and other earlier ver-

sions of FWPCA, 7.e. Act of June 30, 1948, ¢. 758. Fed-

eral regulation of ocean dumping of sludge and discharge

of sewage effluent was vastly expanded during the last de-

cade by the 1972 and 1977 amendments of FWPCA, the

adoption in 1972 of the MPRSA and the 1977 amendment

of that act.

Under the Refuse Act, the Army Corps of Engineers was

authorized to grant ocean dumping permits. But under the

more recent FPWCA and MPRSA legislation ike permit-

issuing authority was transferred to EPA, and specific

criteria for the issuance of permits were established ad-

ministratively. 33 U.S.C. $1251 et seq., 33 U.S.C. §1401

et seq., 40 C.F.R. Parts 220 to 229.

In 1974 EPA undertook a study to determine whether

the sewage dumping site in the New York Bight should be

relocated. EIS, supra, p. 1. A draft Environmental Im-

pact Statement was issued in early 1976.

In the summer of 1976 there was a fish kill off the New

Jersey coast which constitutes the gravamen of the com-

plaint herein. The fish kill was the subject of comprehen-

sive federal, state and local investigations which concluded

that ocean dumping of sewage sludge was only a minor

contributing factor. EIS, supra, pp. 54-61. That isolated

phenomenon led EPA to make further studies on the ocean

dumping situation, resulting in a new EIS in 1978. That

reached the conclusion that under all the attendant cireum-

stances the most advisable course of action was for the

continuance of ocean dumping of sewage sludge at the

present site but with encouragement for the construction

of improved sewage treatment plants to minimize marine

damage. EIS, supra, pp. 62-82, 203-207. Several of the

New Jersey petitioners have recently substantially im-

proved their sewage treatment processes. All are of least

secondary treatment quality.

Insofar as concerns these petitioners, the disposition

of the issues presented on defendants’ motions to dismiss

by the lower courts was as follows.

As to the claims asserted under FWPCA and MPRSA,

the District Court held that the claims must be dismissed

because of failure of timely service of notice on the de-

fendants prior to institution of the action, as required by

the respective statutes (pet. cert. app. 56a). On this

issue the Court of Appeals reversed, holding that absence

of notice was not fatal because of the “savings clause”

of the citizens action provisions of the statutes which

preserve any existing right of action under any statute

or common law (pet. cert. app. 10a). <As to plaintiffs’

contention that, independent of any right of action under

the express citizens’ suit provisions of FWPCA and

MPRSA, they could maintain the suit pursuant to (a)

an implied right of action under those statutes and (b)

the theory of federal common-law nuisance, relying pri-

-aarily on Illinois vy. City of Milwaukee, 406 U.S. 91 (1972),

the District Court held that there was no implied action,

that the federal nuisance remedy was available only in

favor of states, not private parties, and that the notice

provisions of the statutes remained applicable to any

actions brought under the “savings clause.” (pet. cert.

app. 47a). The Court of Appeals reversed these deter-

minations, holding that a private federal common-law

nuisance claim was available under the Illinois ease and

an implied claim under FWPCA and MPRSA as well, free

of the notice requirement (pet. cert. app. 2S8a-29a, 6a-l4a).

As concerns plaintiffs’ reliance upon admiralty and mari-

time jurisdiction of the federal courts, the Distriet Court

held that there was a failure to plead a cause of action

cognizable under such jurisdiction. The court alternatively

held that even if the complaint was read to encompass a

substantive claim under such jurisdiction, it would have

to be dismissed for failure of compliance with the notice

requirements of state tort claims statutes (excepting the

ease of New York City). (pet. cert. app. 62a, 63a). The

Court of Appeals held that a more liberal reading of the

complaint was required at the pleading stage and that the

asserted cause of action was viable although essentially

identical with the federal common-law tort nuisance claim.

(pet. cert. app. 29a-31la).

Petitioners sought on appeal to sustain the judgment

of the District Court, insofar as the complaint demands

money damages, on grounds of sovereign immunity under

the Eleventh Amendment. The Court of Appeals sum-

marily rejected the sovereign immunity defense; citing no

eases but only N.J.S.A. 40:14B-4 and N.J.S.A. 58:14-2 and

noting that the defendants were municipal corporations

(pet. cert. app. 36a). The defense of the Eleventh Amend-

ment is excluded from consideration herein under the

questions framed in the grant of certiorari.

Four petitions for certiorari were filed, one including

the petitioners represented by this brief. All were granted

by Order of this Court dated October 20, 1980 (J.A. 48a).

The questions were ordered limited to those set forth first

hereinabove. Ibid.

Summary of Argument

1. Neither FWPCA nor MPRSA imply a private right

of action independent of the citizens suit provisions of

those statutes. The four critical factors for implying a

private cause of action from a regulatory statute set forth

in Cort v. Ash, 422 U.S. 66 (1975), have been substantially

diluted by the more recent formulation in T'ouche Ross &

Co. v. Redington, 442 U.S. 560 (1979) and Transamerica

Mortgage Advisors vy. Lewis, 444 U.S. 11 (1979). The

four Cort factors do not have equal weight. Touche Ross,

at 575, “The central inquiry remains whether Congress

intended to create, either expressly or by implication, a

private cause of action”. Jbid, Substantial weight is to be

accorded the circumstance that the statute in question

expressly provides for a private cause of action. Id. at 574.

This analysis is pertinent to the present ease since both of

the statutes involved provide expressly for citizens suits

thereunder, within stated limitations as to notice and other-

wise.

Reliance by the Court of Appeals on the language in

the “savings clause” of FWPCA, 33 U.S.C. §1365(e), which

states that nothing in the section “shall restrict any right

which any person * * * may have under any statute or

common law to seek enforcement of any effluent standard

or limitation or to seek any other relief * * *” and on the

sumilar provision of MPRSA, 33 U.S.C. §1415(2) (5), is

mistaken. The allusion to “any statute” does not include

FWPCA (or MPRSA) itself. The legislative history in-

dicates that the intent of the reference is to any other

statute.

Implication of a private remedy for damages under

either Section 1365(e) of FWPCA or Secion 1415(g) (5)

of MPRSA would be inconsistent with the Congressional

purpose implicit in both acts of encouraging private par-

ticipation in the enforcement thereof but only within the

channels expressly provided (especially prior notice), and

would thereby contravene the third factor identified in

Cort v. Ash, supra, namely: is it consistent with the under-

lying purposes of the legislative scheme to imply such a

remedy for the plaintiff?” (422 U.S, at 78). This court

stated in Touche Ross, supra, that it was “oxtremely re-

luctant to imply a cause of action in [the statute] that is

significantly broader than the remedy that Congress chose

to provide”. (442 U.S. at 574).

2. To the extent that a federal common-law nuisance

action may at all survive the now asserted preemptive

effect of FWPCA and MPRSA, as currently amended, in

relation to suits for ocean pollution against publicly owned

sewerage works, it should be held that a private citizen

may not maintain such an ac**on.

The predominant rationale of the opinion in Illinois

v. Milwaukee, 406 U.S. 91 (1972), establishing a federal

common-law nuisance action for interstate water pollution

at the behest of states, was the need to afford states legal

protection in federal courts against pollution emanating

from beyond the state’s borders—protection required by

the inability of states in this federal union otherwise to

be relieved from such harm. Indirectly involved, also, was

the constitutional original jurisdiction of the Supreme

Court to entertain actions by states against citizens of

other states invoked by the plaintiff in that case, and the

pragmatic desire of the Court to minimize involvement in

original actions. This conduced to establishing remedial

jurisdiction therefor in the district court. These consid-

erations are not pertinent to private citizens aggrieved

by interstate nuisances involving water pollution. They

are free to bring such actions in state courts. Current no-

tions of due process under minimum-contacts rules would

permit nuisance actions against foreign sources of local

water pollution in local state courts. Consequently, con-

sidering also the availability of citizens suits under the

regulatory statutes, private citizens have adequate recourse

to relief without encumbering overburdened federal dis-

trict courts with nuisance suits.

The best scholarship in environmental law is in agree-

ment that because of its ad hoc nature the common-law

nuisance action does not contribute functionally to a sound

system for control and regulation of environmental pol-

lution and that comprehensive legislative and administra-

tive regulation is better suited to that end.

Elimination of privately brought nuisance actions in fed-

eral courts would be consistent with such views. More-

over, the same considerations which will be advanced

hereinafter militating for a doctrine of partial preemption

of federal nuisance remedies in the water pollution field

by the comprehensive federal regulatory machinery now

in place also support, a fortiori, superseding citizens nuis-

ance actions for ocean pollution against publicly owned

sewerage disposal agencies.

3. The prediction in Illinois y. Milwaukee that a time

might come when the statutory and regulatory mechanism

for control of water pollution would be so comprehensive

as to warrant preemption of a federal common-law nuisance

cause of action is now fulfilled. When Illinois was de-

cided, the 1972 and 1977 amendments of FWPCA had not

yet come into effect nor had Congress yet enacted MPRSA.

The latter statute (amended in 1977) is here particularly

significant in that the gravamen of the present action

against the New Jersey and New York sewerage agencies

is the dumping of sewage sludge in the New York Bight.

The present scope of these statutes and of the extent

and effect of the administrative reculations adopted by

EPA pursuant thereto effectively subjects petitioners and

industrial water dischargers to the closest and most de-

tailed serutiny and oversight readily conceivable. More-

over, in respect of petitioner public sewerage agencies,

Congress has appropriated massive federal funds for the

planning and construction of improved sewerage treatment

facilities and for land-based alternatives to ocean dump-

ing of sewage sludge.

By the resulting establishment of the partnership be-

tween federal, state and local agencies involved in the ecom-

prehensive program of reduction and eventual elimination

of pollution of the ocean, Congress has clearly manifested

an intent against the continued availability of common-law

nuisance actions in federal courts against publie sewerage

agencies so controlled and regulated. The maintenance

thereof, particularly in respect of damage suits, would con-

flict with and obstruct and impede the efficient execution of

the federally managed and financed programs for ultimate

cessation of ocean pollution by such agencies at the earliest

feasible date.

Subjection of public sewerage agencies to the hazard of

common-law nuisance suits, wherein no predictable judg-

ment as to the responsibility of the agencies would be

available in advance, would conflict and be inconsistent with

the evident Congressional purpose of informing such agen-

cies what standards of pollution prevention were expected

of them and the dates by which such specific goals were

to be reached. Moreover, the subjection of such agencies

to the possibility of substantial verdicts for money dam-

ages would cripple and impede them, unduly penalize the

participating public and would be at cross-purposes with

the massive infusion of federal money into the federally

mandated programs for solution of the water pollution

problem.

As noted above, the comprehensive and uniform federal

regulation of water pollution now in place is vastly pre-

ferable to the ad hoc remedy of judicial attention to iso-

lated pollution situations in the context of tort litigation.

For these reasons, it should now be concluded that Con-

gress intends the preemption of the federal common-law

nuisance remedy, in respect of sewage sludge dumping and

discharge of sewage effluent by publicly owned sewage

agencies operating under federal regulation, by the scheme

of the existing comprehensive federally legislated program

of control of ocean pollution.

ARGUMENT

POINT I

Neither the FWPCA, as amended, nor the MPRSA,

as amended, imply a private right of action under those

statutes independent of the citizens suit provisions there-

of.

The Court of Appeals held that both the FWPCA and

the MPRSA implied a private cause of action for viola-

tion by any person or agency of the regulatory provisions

of those statutes. Reliance was had upon 33 U.S.C. §1365

(e) of FWPCA and upon the similarly worded provision

in MPRSA (33 U.S.C. §1415(g) (5).

So far as here pertinent, 33 U.S.C. $1865 provides in

substance: Any citizen may commence a civil action against

any person or governmental agency alleged to be in viola-

tion of an effluent standard or limitation under the law or

an order by the EPA administrator or a state concerning

such a standard or against the administrator if charged

with failure to perform a non-discretionary duty. The

district court is given jurisdiction in such eases without

regard to citizenship or amount in controversy and may

apply any civil penalties provided by the law. No citizens

action may be commenced prior to 60 days after plaintiff

has given notice of the violation to the Administrator, to

the state where the violation occurs and to any alleged vio-

lator, nor may such action be instituted if the adminis-

trator or the state has commenced and is diligently prose-

cuting a civil or criminal action to require compliance with

the standard or order. If the action is brought against the

administrator, 60 days prior notice must be given to him.

The Section concludes as follows:

“(e) Nothing in this section shall restrict any right

which any person (or class of persons) may have

under any statute or common law to seek enforce-

ment of any effluent standard or limitation or to seek

any other relief (including relief against the Admini-

strator or a State agency).”

The Court of Appeals was impelled to the stated conclu-

sion as one of its two bases for sustaining jurisdiction in

the absence of compliance by plaintiffs with the sixty day

notice provisions of these statutes. In effect, the court

read the allusion to “any statute” in subparagraph (e) of

Section 1365 to include the subject statute itself. The clear

sense of the language employed, however, is that “any

statute” means any statute other than FWPCA itself. In-

deed, the 1972 Senate report on the FWPCA bill explained,

in reference to the savings clause:

“Tt should be noted * * * that the section would

specifically preserve any rights or remedies under

any other law.” (emphasis supplied)

S. Rep. No. 414, Reported in 1972, U.S. Code Cong.

& Adm. News 3668, 3746.

Substantially the same reasoning is contained in the

Senate report on the MPRSA bill. S. Rep. No. 1301, Re-

ported in 1972, U.S. Code Cong. € Adm. News 4232, 4250.*

The Court of Appeals alluded to the cited FWPCA his-

tory but dismissed it with the conclusional observation that

the court was “not persuaded that this paraphrase of the

wording of the Act was intended to preclude the finding

of a private remedy under the Act.” (pet. cert. app. 16a).

One wonders, why not? The act obviously fashions a spe-

cific citizens remedy and at the same time seeks to pre-

serve any private remedies which may exist under any

other act or common law. What sensible basis remains

for implying yet another remedy under the act itself?

* Identical reasoning is contained in the Senate report on the

Savings Clause of the Clean Air Act, 42 U.S.C. §7604, upon which

the savings clause in FWPCA was modeled. S. Rep. No. 91-

1196 (1970).

It does not appear that any other court of appeals is in

agreement with the holding of the Third Circuit in this

case. The best reasoned decision on the point is that of

the Seventh Cireuit Court of Appeals in City of Evans-

vile, Ind. v. Ky. Liquid Recycling, 604 F.2d 1008 (7 Cir.

1979). After alluding to the legislative history cited

above, the court noted that the rejection by Congress of all

but two of the proposed exceptions to the requirement of

a sixty day waiting period for a citizens suit (alluding to

the legislative history as set forth in footnote 16 of the

opinion) “reinforees the evidence in §505 [Seetion 1365] it-

self of an intent to cireumscribe private rights of action

under the FWPCA” (604 F.2d at 1015). The court noted

that its discussion of Section 505 as precluding a private

remedy was also consistent with the third factor identified

in Cort v. Ash,* 422 U.S. 66, 78 ( 1975), as a eriterion for

judicial implication of Congressional intent to create a

private cause of action, namely, “is it consistent with the

underlying purposes of the legislative scheme to imply such

a remedy for the plaintiff?” 604 F.2d at 1015.

The same court had rendered a comparable decision in

reference to the similar savings clause of the Clean Air

Amendments of 1970 (42 U.S.C. §7604). City of Highland

Park v. Train, 519 F.2d 681 (7 Cir. 1975), cert. den. 424

U.S. 927 (1976). The court there held the failure to give

the required statutory notice to be fatal to the action. Tt

pointed out that although there was clear indication by ex-

press proviso of intent to allow citizen participation in the

enforcement of the act, the legislative history also demon-

strated:

* The other criteria mentioned in Cort are: (a) whether plain-

tiff is one of the class for whose especial benefit the statute was

enacted; (b) indication of legislative intent, explicit or implicit,

either to create such a remedy or to deny one; (d) is the cause

of action one traditionally relegated to state law, in an area basic-

ally the concern of the states, so that it would be inappropriate

to infer a cause of action based solely on Federal Law. (em-

phasis in original opinion). 422 U.S. at 78.

“that Congress intended to provide for citizens’

suits in a manner that would be least likely to clog

already burdened federal courts and most likely to

trigger governmental action which would alleviate

any need for judicial relief. It was in response to

these concerns that the statutory notice provisions

were included in section 304. Congress’s intention

would be frustrated if the statutory mandate of

section 304(b) were ignored.” (footnotes omitted).

519 F.2d at 690-691.

While there appear to be no prior federal appellate rul-

ings expressly to the contrary of the position of the Seventh

Cireuit, several cases have allowed actions against EPA

or other federal governmental administrators without prior

notice in purported pursuance of FWPCA via the putative

jurisdictional avenue of the Administrative Procedure

Act* and 28 U.S.C. §1331, thereby circumventing the no-

tice provisions of the statutes. Conservation Soc. of S.

Ver. Inc. v. Secretary of Tran., 508 F.2d 927 (2 Cir. 1974) ;

Natural Resources Defense Council v. Callaway, 524 F.2d

79 (2 Cir. 1975); Natural Resources Defense Council Inc.

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

None of the cases cited expressly finds an implied cause

of action under the statute involved. As noted in City of

Highland Park v. Train, supra, (519 F.2d at 693), the ra-

tionale in each of those decisions for invoking 28 U.S.C.

§1331(a) is obscure.

To buttress its contention of a general private cause of

action under FWPCA, the Court of Appeals below labors

to establish a rationale of entitlement to an action by non-

injured citizens under §1365(a)(1) and of a companion

species of action by injured citizens under paragraph (e)

of the section. It bases the distinction upon legislative

* The rationale of Section 10 of the Administrative Procedure

Act as an independent basis for jurisdiction in the federal courts

to review actions of federal officials was undermined by the con-

trary holding in Califano v. Sanders, 430 U.S. 99 (1977).

history supposedly designed to meet the decision of this

court in Sicrra Club v. Morton, 405 U.S. 727 (1972) (pet.

cert. app. 7a). But the thesis does not withstand seru-

tiny of the statutory language. Concededly Sierra Club

held that review of federal agency action by parties who

could not show injury was not available under the Admin-

istrative Procedure Act. However, the definition in $1365

(g) of a “citizen” who is permitted to institute a civil ac-

tion under paragraph (a) is “a person or persons having

an interest which is or may be adversely affected.” That

definition tracks the Sierra Club language concerning in-

Jured persons (the suitor must show “that he is himself

adversely affected”) (405 U.S. at 740). It is thus clear

that section (a) actions may be brought only by injured

persons, contrary to the thesis of the Court of Appeals,

and the supposed distinction advanced to support its hold-

ing that there is a private action independent of para-

graph (a) does not stand up.

The criteria of Cort v. Ash, supra, particularly as qual-

ified by Touche Ross & Co. y. Redington, and Transamerica

Mortgage Advisors vy. Lewis, both supra, do not justify

implication of an independent federal cause of action. At

best, the factors require a balanced approach and are not

all of equal weight. Touche Ross, 442 U.S. at 575. The

most important of them is the second, i.e, any indication of

legislative intent, explicit or implicit, either to create such

a remedy or to deny one. Touche Ross, supra, Ibid. “[t]he

central inquiry remains whether Congress intended to cre-

ate, either expressly or by implication, a private cause of

action”. Ibid. The court in Touche Ross found signal

Justification for refusing to find the implication of a priv-

ate remedy under one section of the act there involved

because other sections of the statute “expressly provide a

private right of action” (442 U.S, at 071-572). The court

went on to say:

“Obviously, then, when Congress wished to provide

a private damages remedy, it knew how to do so

—

and did so expressly” (Jd. at 572) citations omit-

ted).

The court said, further:

“* * * Where the prinicpal express civil remedy

for misstatements in reports created by Congress

contemporaneously with the passage of Section 17a

is by its terms limited to purchasers and sellers of

securities, we are extremely reluctant to imply a

cause of action in Section 17a that is significantly

broader than the remedy that Congress chose to

provide.” (Jd. at 574) (citations omitted).

To the same effect see Cannon v. University of Chicago,

441 U.S. 677, 718 (1979).

So, too, as to Section 1365. Section 1365 expressly per-

mits citizens to bring civil actions against any person al-

leged to be in violation of an effluent standard or limitation

or of an order issued by the administrator or a state with

respect to such standard or limitation and to request the

court to apply any appropriate civil penalties under See-

tion 1319(d) of the Act—penalties which can amount to

$10,000 per day of any violation. There is no basis to

imply Congressional intent to permit the assessment of

damages in excess of that figure in common-law tort actions

under the act at the instance of private parties. There is

particularly no evidence of any intent to permit evasion

of the statutory notice requirement through the escape

hatch of such common-law tort actions, see City of Evans-

wille, Ind. v. Ky. Liquid Recycling, supra, (604 F.2d at

1014), where it is pointed out that the Senate committee

report in reference to Section 505(a) of the act (Section

1365(a)) makes clear that it did not contemplate class ac-

tions or actions for damages.

The analysis in City of Evansville gains added cogency

from the recent decision of this court in Transamerica

Mortgage Advisors vy. Lewis, supra. There, too, the court

rejected a claim for implication of a private cause of ac-

tion for damages under a regulatory statute, pointing out,

as did the City of Evansville court, that “it is an ele-

mental canon of statutory construction that where a

statute expressly provides a particular remedy or reme-

dies, a court must be chary of reading others into it”

(62 L.ed. 2d 146, 154-155). The court thus declined to find

an implied private damage action under the statute, the

legislation having provided several express remedies for

the evils sought to be overcome. As in Touche Ross, supra,

the court downgraded the four criteria of Cort vy. Ash,

supra. It specifically minimized the criteria (a) as to

the intent of the statute to protect certain categories of

persons and (b) that the claimed private remedy may be

one not traditionally relegated to state law, as not de-

terminative of the issue. It reiterated the controlling

influence of Congressional intent, as stressed in Touche

Ross.

Applying the teaching of Touche Ross and Transamerica

Mortgage Advisors, we find in the statutes under scrutiny

that they explicitly provide certain remedies for citizens

and that they save such other remedies as may exist either

by statute or common law in favor of any person. In com-

bination, this evidence overwhelmingly negates any intent

to create a private remedy under FWPCA or MPRSA

themselves.*

* Striking additional evidence of Congressional intent not to

create a private remedy under the 1972 amendments of F WPCA

or by MPRSA is afforded by the fact that practically simultane-

ously with the passage and adoption of those statutes the 92nd

Congress also considered and passed the Consumer Product Safety

Act (15 U.S.C. §2051, et seq.). Section 24 of that act (iS GS.

§2073) contains a provision for citizen suits to enforce consumer

safety product rules similar to 33 U.S.C. §1365. However, the

act also includes an express provision for a private damage remedy

(15 U.S.C. §2072). The comparative treatment of express pro-

visions for private citizens actions in these contemporaneously

adopted enactments lends added point to the observations in Touche

Ross and Transamerica Mortgage that when Congress intends to

provide a private damages remedy in a regulatory statute it can

be expected to do so expressly.

POINT II

The jurisdiction of federal courts under 28 U.S.C.

§1331 to entertain federal common-law nuisance actions

brought on behalf of plaintiff states for alleged damages

from ocean pollution does not extend to private citizen

plaintiffs.

The significance of this point heading is that the Court

of Appeals held that, independent of the regulatory stat-

utes here in question, the plaintiffs’ cause of action could

be maintained in the district court under its 28 U.S.C.

$1331 jurisdiction as a federal common-law nuisance action.

Reliance was placed upon the decision of this Court in

Illinois v. Milwaukee, supra. We propose to argue that

considerations both of law and public policy bespeak pre-

clusion of availability of such a remedy to private party

plaintiffs ; either generally, or at least in relation to actions

against publicly-owned sewerage agencies operating under

regulatory permits issued pursuant to FWPCA or

MPRSA.

1. Illinois v. Milwaukee envisaged only suits at the instance

of states or state agencies.

The Jlinois case began as a bill of complaint by the

State of Illinois invoking the original jurisdiction of the

Supreme Court to abate pollution emanating from a sew-

erage agency in Wisconsin and reaching the shores of

Illinois on Lake Michigan, an interstate waterway. The

Supreme Court rejected original jurisdiction but found

adequate jurisdiction in the district courts under 28 U.S.C.

§1331 on the hypothesis that the complaint stated a cause

of action for federal common-law nuisance.

While the opinion in J/linots draws the contours of fed-

eral jurisdiction in relation to interstate waters with a

broad brush, the predominant rationale is the need of

states for protection in presumably neutral federal courts

from pollution emanating from another state whose courts

might be hostile to an action on behalf of the injured state.

Illinois cited as the leading case in the comparable area of

air pollution Georgia v. Tennessee Copper Co., 206 U.S.

230 (1907), where, in sustaining the action by Georgia

against a Tennessee company whose noxious gases were

causing widespread destruction in Georgia, the Court said:

“* * * It is plain that some such demands must

be recognized, if the grounds alleged are proved.

When the States by their union made the forceable

abatement of outside nuisances impossible to each,

they did not thereby agree to submit to whatever

might be done. They did not renounce the possiblity

of making reasonable demands on the ground of

their still remaining quasi-sovereign interests; and

the alternative to force is a suit in this court.

Missouri v. Illinois, 180 U.S. 208, 241.” (206 U.S.

at 237).

Almost all the precedents cited by the court in Jllinois

were actions on behalf of states.* In Tezas y. Pankey, 441

F.2d 236 (10 Cir. 1971), also relied upon by the court in

Illinois, one finds perhaps the first distinet articulation of

a federal common-law nuisance theory in respect of actions

by states for abatement of interstate pollution. Yet Pankey

also focused on the justification for assuming such a cause

of action in the historical conditions under which the sev-

eral states entered the union. Citing Georgia v. Tennessee

Copper Co., supra, the court said: “* * * the [Supreme]

Court regarded a state’s joinder in the Union and its com-

mitment to the Constitution as having inherently insured

* The allusion in the opinion (406 U.S. at 105) to Hinderlider

v. La Plata R. and Cherry Creek D. Co., 304 U.S. 92 (1938), is

not pertinent to the law of nuisance for interstate pollution dam-

ages. Hinderlider dealt with and was based upon the jurisdiction

of the Supreme Court over the apportionment of water rights in

an interstate stream as between states.

or guaranteed to it a right of protection by a federal court

against improper pollution or impairment by outside

sources of its appropriate environment and resource con-

ditions” (441 F.2d at 240).

The almost unanimous view of the lower federal courts

prior to the decision by the Court of Appeals in the in-

stant case is in support of the position of the district court

in the present case confining the federal common-law nuis-

ance action to suits by states.* Committee for Con. of

Jones Falls Sewage System v. Train, 375 F.Supp. 1148

(D. Md. 1974), affirmed on other grounds consistent with

that of the district court on the instant issue, 539 F.2d

1006 (4 Cir. 1976) en bane); Parsell vy. Shell Oil Co., 421

F.Supp. 1275 (D. Conn. 1976), aff'd without opinion sub

nom. Kast End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d

1289 (2 Cir. 1977); Stream Pollution Bd. of Ind. v. U.S.

Steel Corp., 512 F.2d 1036 (7 Cir. 1975) (private citizen

denied intervention); cf. Highland Park v. Train, supra,

(519 F.2d 681); but see Byram River v. Village of Port-

chester, 394 F.Supp. 618 (S.D.N.Y. 1975).

In Committee for Con. of Jones Falls Sewage System

v. Train, supra, the court observed that the plaintiffs in

the two principal cases cited in Jllinois v. Milwaukee were

states and that each of those cases “indicates that the

character of the plaintiffs as governmental units was in-

tegral to the determination that a federal cause of action

existed.” 375 F.Supp. at 1153. Although affirming the

determination of the district court in that case on other

grounds, the Court of Appeals for the Fourth Cireuit on

appeal therefrom rendered its independent analysis of JIli-

nois v. Milwaukee and Texas vy. Pankey as developing “[ol]f

necessity * * * a body of federal common law for the reso-

*In City of Evansville, Ind. v. Ky. Liquid Recycling, supra,

(604 F.2d at 1018) plaintiffs municipal corporations were held

equivalent to the state for purposes of invoking Jilinois v. Mil-

waukee relief.

lution of interstate pollution controversies when a state

sought extra-territorial relief on behalf of her citizens.”

039 F.2d at 1008. The court further observed that:

“Perhaps with the exception of actions by the

United States to abate public nuisances created in

navigable waters by polluters, [citing cases] but

consistent with §1251(b) [FWPCA] the doctrine

of Illinois v. Milwaukee has not been extended

beyond the abatement of publie nuisance in inter-

state controversies where the complainant is a state

and the offenders are creating extra-territorial

harm.” (f.n, omitted) (per Haynsworth, C.J.) 539

F.2d at 1009.

Similarly emphasizing the significance of the character

of the plaintiff in Jllinois v. Milwaukee and in the eases

there relied upon is Parsell y. Shell Oil Co., supra, (421

F.Supp. at 1280-1281).

The Court of Appeals in the instant case lays stress

(pet. cert. app. 25a) upon footnote 6 in Jilinois vy. Mil-

waukee, 406 U.S. at 105, to the effect that:

“Thus, it is not only the character of the parties

that requires us to apply federal law * * * [W]here

there is an overriding federal interest in the need

for a uniform rule of decision or where the contro-

versy touches basic interests of federalism, we have

fashioned federal common law.”

The implication of the Court of Appeals is that the foot-

note indicates that a state party plaintiff is not essential to

the federal common-law nuisance action if the substantive

federal question implicated is one calling for doctrinal uni-

formity. That thesis was refuted in Committee for Con.

of Jones Falls Sewerage System vy. Train, supra, (375

F.Supp. 1148), where the court, in dealing with the same

Illinois footnote, said:

““t is not only the character of the parties that

requires us to apply federal law.’ This statement

can be read in at least two different ways. It could

mean a) that there were other considerations suffi-

cient in themselves to require application of federal

law, or b) that there were other federal interests

which in addition to the character of the parties

required the application of federal law although

those other interests in themselves would not have

been sufficient. In the view this Court takes of the

basis for the Supreme Court’s decision, the latter

interpretation is the proper one.” 375 F.Supp. at

1154-1155, n, 12.

We submit that the foregoing analysis should be ac-

cepted by this Court as a sound explanation of the mooted

footnote in Jilinois. If the Illinois Court had intended the

newly announced federal common-law nuisance action to

be available to private parties it is unlikely that the opin-

ion would have failed so to state explicitly.*

Moreover, the policy considerations discussed hereinaf-

ter conduce to the argued-for result, whatever the intent

of the Court in subscribing to the Illinois opinion in 1972.

2. Illinois v. Milwaukee authorized only a suit for abate-

ment of nuisance, not an action for damages.

The decision of the Court of Appeals in this ease not

only extends the doctrine of Illinois v. Milwaukee to priv-

ate claimants but also would enable them to recover dam-

ages against defendant public sewerage agencies. We sub-

mit that that consequence is particularly unwarranted from

the substance of the Jllinois decision. If, as we contend,

the Court in Jllinois was concerned only with abatement

* A leading work on the subject concludes that:

“Justice Douglas’ opinion casts no light on the question

whether federal common-law governs suits to abate inter-

state pollution brought by private persons.”

Hart & Wechsler’s “The Federal Courts and The Federal Sys-

tem” (2d ed. 1973, Bator, Mishkin, Shapiro and Wechsler) p. 806.

of nuisances emanating from one state into another, it

would follow that a private tort action for nuisance dam-

ages may not be subsumed under the Illinois v. Milwaukee

umbrella,

In Illinois, abatement of the alleged nuisance was all that

the complaint demanded (406 U.S. at 93). The patent ra-

tionale of the decision was the need of a state for federal

relief of abatement of pollution coming from beyond its

borders. In discussing the criteria for adjudication in sucl

suits, the Court stated: “there are no fixed rules that gov-

ern; these be equity suits in which the informed judgment

of the Chancellor will largely govern” (emphasis added)

(406 U.S. at 107-108). Obviously damage suits were not

in contemplation.

3. Policy considerations relative to the best interests of a

national water pollution strategy argue for restriction

of the federal nuisance action.

The argument we now make is pertinent not only to the

point here under consideration but also to the matter of

preemption of any federal common-law nuisance actions

by the comprehensive regulatory mechanism created by

FWPCA and MRPSA, argued hereinafter. The policy

considerations which bespeak preclusion of the nuis-

ance remedy in the water pollution area obviously militate

at least for restriction of the remedy to actions by states,

as proposed in the present point. We therefore develop the

policy considerations at the present juncture,

There is practically unanimous agreement of the scholars

in environmental law as to the inutility of the judicial ap-

proach to abtement of water pollution through common-law

nuisance as contrasted with comprehensive statutory and

regulatory machinery.

In his “Treatise On Environmental Law” (1979), which

followed the adoption of the 1972 FWPCA amendments,

Professor Grad of Columbia states:

“The development of a federal common law of

public nuisance—limited, hopefully, to actions be-

tween states—was probably a response to the in-

adequacies of past federal regulatory enactments

in the air and water pollution control field. The

law of nuisance has been far from clear in its appli-

cation to modern water pollution and air pollution

situations. It is in response to the inadequacies and

lack of standards of the law of nuisance that much

environmental regulatory legislation has been de-

veloped. The development of a federal common law

of nuisance seems both unnecessary and unwar-

ranted in the light of recent federal standards and

federal enforcement sanctions provided under ap-

propriate legislation. It may be useful to point

out that the assertion of a federal law of nuis-

ance in the Illinois v. City of Milwaukee ease is

clearly dictum. It is to be hoped that this pe-

culiar and unnecessary departure from legislatively

determined standards in the field will not see any

further development. Indeed, perhaps the time has

aiready come that federal regulations ‘pre-empt the

field of federal common law of nuisance, as pre-

dicted by Mr. Justice Douglas.” Vol. I, Grad, supra

at § 3.03, p. 3-180 (emphasis added).

In a perceptive and widely cited Note written just prior

to the decision in /linois v. Milwaukee, and critical of

Texas v. Pankey, supra, it was stated:

“This denial [by rejection of Texas v. Pankey]

of the power of the federal courts to fashion an

environmental common law in_ state-nonresident

cases does not entail the closing off of a source

of substantive legal principles which might make

any major contribution to the nation’s efforts to

address the environmental crisis. Pankey adds to

lawmaking powers the federal courts already pos-

sess only a power to formulate broad standards

of environmental conduct, a task courts are not

well equipped to perform in environmental areas.

Tasks courts are well equipped to perform in the

environmental area—the definition of rights and

liabilities to be created or imposed as consequences

of compliance or noncompliance with statutorily

or administratively established standards—may be

undertaken by the federal courts through doctrines

of judicial lawmaking power which were established

long before Pankey and to which Pankey is irrele-

vant.” Note, “Federal Common Law and _ Inter-

state Pollution”, 85 Harv. L.Rev. 1439, 1451 (1972).*

The Note writer goes on to point out that the addition of

federal common-law nuisance jurisdiction to the remedial

apparatus relative to water pollution “is not especially

significant to the effort to develop” appropriate “stand-

ards to impose on conduct affecting the environment”.

Ibid, The writer furnishes two reasons for the conclusions:

“First, that task ean be and is performed on the

federal level by statutory provision and administra-

tive process; recently-or soon-to-be-enacted federal

legislation, for instance, provides for the promulga-

tion of relatively comprehensive federal standards

to govern industrial air and water pollution. See-

ond, even when such standards are not provided by

statute, the common law does not provide an ade-

quate alternative context within which to develop

such standards. Although various elements of tort

law—nuisance law in particular, and, to lesser ex-

tents, certain elements of trespass and negligence

law—formally provide a framework within which

such standards could be evolved, ecase-by--case ad-

judication is fundamentally inadequate to consider

and weigh properly the many and varied interests

environmental standards must reflect and thus to

contribute to the type of comprehensive planning

necessary for environmental control.” Jd. at 1451-

1452 (footnotes omitted).

* This note was described as “an intelligent analysis of the prob-

lems of creating a federal common law in the context of inter-

state pollution suits” in Hart & Wechsler’s “The Federal Courts

and The Federal System” (2d Ed. 1973, Bator, Mishkin, Shapiro

& Wechsler) at 806.

Complementary to the foregoing observations is the

case made by Robert Zener (formerly EPA counsel)

against the utility of the common-law nuisance approach

from the standpoint of the vital necessity of affording

dischargers, public or private, notice of what standards

the law requires them to meet. Zener, “The Federal Law

of Water Pollution Control”, in E. Dolgin & T. Guilbert,

“Federal Environmental Law” (1974), 788. As Zener

says:

“The case-by-case balancing approach adopted by

the Court in Illinois v. Milwaukee* imposes a severe

constraint on the utility of the federal common law

as a significant means of regulating water pollu-

tion. This approach means that until a federal

court has issued an order directed to his own par-

ticular operation, no discharger can be sure what

the standard applicable to him will be. All the

discharger knows is that if he is sued under the

federal common law, the court will balance the equi-

ties; but he cannot tell whether the balance will be

struck at 75 percent removal, 90 percent removal,

or some other figure. Only an administratively

established standard can tell the discharger the

precise level of control he must achieve. And most

dischargers will not spend the substantial sums

needed for pollution control equipment until they

know the precise levels they must achieve under the

law.” Id. at 788 (emphasis added).

It is plain from all these observations that “poor old

nuisance”** not only serves no functional value in the ap-

*“There are no fixed rules that govern; these will be equity

suits in which the informed judgment of the Chancellor will largely

govern”. Illinois v. City of Alilwaukee, supra, 406 U.S. at 107-

108).

** “Poor old nuisance has been the common law's meager re-

sponse to the crowdedness of society. The doctrine is pathetic-

ally inadequate to deal with the social realities of this half-century”.

Wright, “The Federal Courts and The Nature and Quality of

State Law”, 13 Wayne L.Rev. 317, 331 (1967).

E34

28 :

proach to a rational body of water pollution abatement

law, but is a detriment to its implementation.*

In “Pyramids of Sacrifice? Problems of Federalism in

Mandating State Implementation of National Environ-

mental Policy”, 86 Yale L.J. 1196 (1977), Professor Stewart

of Harvard makes a strong case for federal enlistment of

states in the regulatory mechanism for control of water

pollution, particularly in relation to spillovers of pollution

from one state to another. He anticipates possible consti-

tutional challenge, and he urges the courts to reject such

challenge, saying:

“It is an invitation they should refuse. Because

of political and administrative constraints, Con-

gress must often deal with spillover problems in

a generic fashion. A case-by-case judicial deter-

mination of whether federal statutory impositions

on states were warranted in particular instances

would, in effect, make the judge-made common law

of interstate pollution superior to congressional sta-

tute. It would also loose the bonds of compro-

mise that may have been politically indispensable

for the enactment of such a statute in the first

place. The resolution of substantial interstate con-

flicts should be left in the hands of the national

forum in which all states are represented under

— of the Great Compromise.” Jd. at

1230.

Whether or not this Court will agree with our argument

for general preemption of federal tort suits against regu-

lated public sewerage agencies, as presented in the next

Point, restriction of the federal nuisance remedy against

* For abundant additional testimony against the utility of the

judicial common-law approach in environmental law, see Krier,

“Environmental Law and Policy” (1971) at 208-232.

use by private plaintiffs will at least tend to subserve the

considerations noted by the foregoing authorities.*

There is no predictability about a judgment in a nuis-

ance case. The Restatement of Torts, Second (1977), de-

fines a public nuisance as “an unreasonable interference

with a right common to the general public”. Section 821B.

Reasonableness is defined in terms of whether “the gravity

of the harm outweighs the utility of the actor’s conduct”

or “the harm caused by the conduct is serious and the

financial burden of compensating for this and similar harm

to others would not make the continuation of the conduct

not feasible”. Id., Section 826. The unserviceability of such

criteria, in relation to the potential liability of a public sew-

erage agency necessarily operating under statutes and

regulations concerning water pollution as thoroughly con-

sidered as those here involved, is reflected by comment (f)

to Section 821(B) of the Restatement (at p. 91):

“* * * If there has been established a compre-

hensive set of legislative acts or administrative re-

gulations governing the details of a particular kind

of conduct, the courts are slow to declare an ac-

tivity to be a public nuisance if it complies with

the regulations”.

We would take that comment one step further to sug-

gest that the courts should bar an action to penalize as a

public nuisance activities in the interest of the publiec’s

* The approach suggested would be consistent with the fact

that federal common-law of necessity evolves on a case-by-case

basis, largely influenced by notions of policy. See Friendly, “In

Praise of Erie—And Of The New Federal Common Law”

39 N.Y. Univ. L.Rev. 383, 405 passim (1964). The instances in

which the Court since Evie R. Co. v. Tompkins, 304 U.S. 64 (1938),

has created Federal common law “are few and restricted”, lheel-

din v. Wheeler, 373 U.S. 647, 651 (1963). See also Stone v.

Powell, 428 U.S. 465, (1976), where this Court deliberately re-

stricted the habeas corpus federal jurisdiction to subserve a policy

objective.

health, safety and convenience such as those being pur-

sued by these petitioners under the statuory and regula-

tory mechanism now in place. See the further develop-

ment of this viewpoint in the next Point of this brief.

Finally, it should be noted that preclusion of privately

brought actions for water pollution in federal courts would

not leave private citizens harmed by pollution originating

in the waters of another state remediless. Under present

rules of minimum contacts, jurisdiction over foreign pol-

luters could be had in local state courts.

In summary, we submit that federal jurisdiestion should

be closed to private actions under the rubric of nuisance for

redress of water pollution attributable to EPA permit-

tees, at least as to publicly owned sewerage agencies like

these petitioners, functioning under federal regulatory su-

pervision.*

*In Wallis v. Pan American Petroleum Corp., 384 U.S. 63

(1966), it was held that federal common law should not be fa-

shioned to supersede state law in a given area merely because

there was latent federal power over the subject matter.

The court said:

“Whether latent federal power should be exercised to

displace state law is primarily a decision for Congress * * *,

Because we find no significant threat to any identifiable

federal policy or interest we do not press on to consider

other questions relevant to invoking federal common law * * *”

(384 U.S. at 68).

Similarly, we here suggest that the mere latency of federal power

over navigable or interstate waters raises no significant threat to

any identifiable federal policy or interest in prohibiting private

parties from suing public sewerage agencies for pollution dam-

ages in federal courts. The vaunted interest in uniformity of fed-

eral common law in this area is illusory since common-law nuis-

ance judgments rendered by different judges on differing records,

as clearly shown above, will not be uniform. Uniformity, within

reasonable classifications, is found in the statutory regulatory sys-

tem now governing ocean pollution.

POINT III

If a federal common-law nuisance action for ocean

pollution is otherwise available to a private citizen, such

an action should be held preempted by the present regu-

latory scheme in that area established by the FWPCA

and the MPRSA.

We assume from the form of the third question listed by

the Court in the order granting certiorari that the Court

is not inviting reconsideration of the expression in Illinois

v. Milwaukee that federal courts have common-law nuis-

ance jurisdiction in actions brought by states for inter-

state water pollution.* We assume we are to argue only

that preemption of such actions should apply when brought

_by a private citizen. The argument hereinafter proceeds

upon that assumption.

Moreover, it is not our contention that no privately

maintained tort action whatsover may be brought in a fed-

eral court against an ocean polluter but only that such

actions are precluded if brought against any discharger

functioning undev a permit issued either under the author-

ity of FWPCA or MPRSA. If a proposition of even that

limited scope is not acceptable to the Court, we would argue

that at the very least there shculd be preemption as re-

spects suits against publicly owned waste treatment agen-

cies, as we believe there is sufficient distinction between an

industrial discharger and a public one to justify extend-

ing the preemptive effect of the regulatory statutes to the

latter, if the Court will not accept preemption as to the

* Were we free to make the argument, we would contend that

even such suits by states should be preempted as against defend-

ant public sewerage agencies operating under EPA regulations,

for the reasons hereinafter set forth. It has been suggested that

such preemption “may have” occurred by reason of the 1972 amend-

ments of FWPCA. Com. of Mass. v. United States Veterans

Admin., 541 F.Supp. 119, 121 (1 Cir. 1976).

former because it may be thought necessary to reserve

the question of tort relief in specific industrial situations

notwithstanding the regulatory statutes.

1. The “savings clauses” of FWPCA and MPRSA do not

preclude a finding of preemption.

The initial contention which will be made against our

position is that the savings clauses of both of the regula-

tory statutes in question implicitly militate against the

concept of preemption. There are at least two broad re-

sponses to any such argument.

In the first place, these savings clauses are typical of

those set forth in a number of other comparable regulatory

statutes adopted by Congress during the initial stages of

the development of a regulatory apparatus in respect of

environmental or similar regulation. See for example the

Toxic Substances Control Act, 15 U.S.C. §2619(¢) (3) (Supp.

T); the Safe Drinking Water Act, 42 U.S.C. $300(7)-8(e)

(Supp. IT); the Noise Control Act of 1972, 42 U.S.C. §4911

(e); and the Clean Air Amendments of 1970, 42 U.S.C.

$7604(e) (Supp. IT). The savings clauses of all of these

statutes are closely comparable with those contained in

FWPCA and MPRSA. The evident general Congressional

policy was that in the light of the doubt as to whether

conduct potentially actionable under other statutes or com-

mon law was sufficiently comprehensively addressed by

the regulatory statute then being enacted, it was a wise

precaution to save such other remedies as might exist and

might be necessary to afford needed relief in specific sit-

uations not adequately dealt with by the remedial statutes,

However, regulatory statutes typically are expanded in

scope and effectiveness as experience and research counsel,

and the continued retention of the savings clauses in such

statutes as a precautionary device should not militate in-

flexibly against a judicial inquiry as to whether at a given

point the statute has not become so comprehensive as to

be deemed preemptive of any other remedial jurisdiction.

So, too, here. We thus contend that the citizens remedy

sections of FWPCA and MRPSA do not sensibly weigh

against a judicial inquiry at this time as to whether a par-

ticular form of common-law remedy attempted to be as-

serted in the instant circumstances should not be held pre-

cluded by those statutes in their present comprehensive

state. If the availability of a federal common-law nuisance

action would constitute an “obstacle to accomplishment and

execution of the full purposes and objectives of Congress”,

Jones v. Roth Packing Co., 430 U.S. 519, 526 (1977), there

should be preemption. So, too, upon a determination that

such an action would conflict with the “implicit legislative

design of the statute” or produce “general incompatibility

with basic federal objectives”, Philadelphia v. New Jersey,

"437 U.S. 617, 620, n.4 (1978). Similarly, preemption might

be justified because of the “pervasive nature of the scheme

of federal regulation” involved. Burbank v. Lockheed, 411

U.S. 624, 633 (1973).

Our second response to any attempted refutation of

preemption based upon the savings clauses of the sta-

tutes is that we contend only for a limited degree of pre-

emption. Preliminarily, as already noted, we are not ar-

guing for preemption of a federal action brought by a

state for out-of-state originated pollution. Nor do we con-

tend for preemption as to persons or corporations which

are not functioning under permits issued by the regu-

latory agencies pursuant to the statutes here in question.

Moreover, except to the extent that there is specific pre-

clusion of actions against administrators, state or federal,

under these statutes, we do not contend for preemption

as against actions by aggrieved persons against such offi-

cials if there is any other federal jurisdictional and sub-

stantive basis for the maintenance thereof. Cf. Califano

v. Sanders, supra, (480 U.S. 99).

2. The present scope of FWPCA and MPRSA justifies

preemption of federal common-law nuisance actions

against sewerage agencies which discharge effluent and

dump sewerage sludge under permits pursuant to those

statutes.

In Illinois v. Milwaukee, the court made the prescient

observation that:

“It may happen that new federal laws and new

federal regulations may in time pre-empt the field

of federal common law of nuisance. But until that

comes to pass, federal courts will be empowered

to appraise the equities of the suits alleging crea-

tion of a public nuisance by water pollution.” 406

U.S. at 107.”

When Illinois was decided, the 1972 and 1977 amend-

ments of FWPCA had not yet come into effect nor had

Congress enacted MPRSA. If the instant case involved

only a complaint based upon discharge of effluent, we

would contend that the substantially enlarged regulatory

scheme promulgated by the 1972 and 1977 amendments

of FWPCA justified a present determination of preemp-

tion of the common-law action as against sewerage agen-

cies operating under EPA permit. However, the com-

plaint herein, although including allegations of pollution

through discharge of effluent, is obviously primarily based

upon the dumping of sewage sludge by the defendant pub-

lic sewerage agencies. It is consequently pertinent to in-

quire whether MPRSA, enacted after the Illinois case

was decided, and designed to regulate and control the

dumping of sewage sludge, among other ocean pollutants,

does not, in combination with the scope and effect of

FWPCA, preempt the maintenance of this action as a

nuisance suit in a federal court. Our submission is that

that inquiry should be answered in the affirmative.

(a) FWPCA is now of preemptive scope.

Even a brief comparison of the salient differences be-

tween the federal water pollution legislation as it stood

prior to 1972 and the FWPCA under the amendmenis

of 1972 and 1977 is convincing that the time for declara-

tion of preemption of common- law nuisance actions, at

least to the extent here argued for, has arrived.

Prior to 1972 the principal federal statutes concerning

water pollution were 33 U.S.C. (1970 ed.) §1151 et seq.

and Section 13 of the Rivers and Harbors Act of 1899,

33 U.S.C. § 407. Under the previous water pollution leg-

islation the main pollution control mechanism consisted

of the setting of ambient water quality standards, es-

tablishing permissible levels of pollution in interstate

waters. 33 U.S.C. (1970 ed.) §1160(c). The states were

given the primary responsibility for dev eloping the water

quality standards and were also called upon to devise

plans for implementation consistent with statutory criteria.

33 U.S.C. (1970 ed.) §1160(e) (1), (e)(3). If a state either

failed to establish a water quality standard or announced

an inadequate one, EPA would be required to promul-

gate its own water quality standards in consultation with

state authorities. 33 U.S.C. (1970 ed.) §1160(c). See EPA

v. Water Resources Control Board, supra (426 U.S. 200,

202-203).

Under the original FWPCA it was the states which

were assigned the first-instance responsibility for enfore-

ing water standards. They were also permitted to es-

tablish enforcement procedures in respect of intrastate

pollution. Provision was also made for a procedure for

enforcement conferences among state and federal officials

and other concerned persons if a discharge into inter-

state waters either reduced the quality thereof below es-

tablished standards or was otherwise dangerous to the

general health or welfare. 33 U.S.C. (1970 ed.) §1160(a),

(c)(5), and (d). If the dispute was not settled and the

discharges continued six months after notice of a viola-

tion the United States was then authorized to institute

action for abatement. 33 U.S.C. (1970 ed.) $1160(a), (¢)

(5), and (g).

The regulatory and enforcement procedures by the states

were spotty and inconsistent. Under them, it was “very

difficult to develop and enforce standards to govern the

conduct of individual polluters.” HPA v. Water Resources

Control Board, supra (426 U.S. at 202-203). Consequently,

EPA established a Refuse Act Permit Program (“RAPP”)

under the Rivers and Harbors act. That program pro-

hibited the discharge of any substance into navigable

waters without a federal permit. See EPA v. State Water

Resources Control Board, supra, (426 U.S. at 203). This

program, however, applied only to industrial dischargers;

it did not govern the discharges of public sewage treat-

ment systems.

The 1972 Amendments of FWPCA completely rewrote

the statute, effected stricter standards for elimination of

pollution of the nation’s waters, tightened the enforce-

ment procedures, brought EPA more directly into the

regulatory process and created a more effective system

for oversight by EPA of state enforcement rules and

regulations.

The statute now declares that “it is the national goal

that the discharge of pollutants into the navigable waters

be eliminated by 1985”. 33 U.S.C. §1251(a)(1). Focus-

ing on that objective, Congress expanded the EPA re-

search demonstration and funding programs of the ori-

ginal statute and established a new system of standards

and permits keyed to developing technological research

and aimed at accomplishing effluent limitations on all point

sources* as well as achieving acceptable water quality

standards. EPA v. State Water Resources Control Board,

supra, 426 U.S. at 204.

The statute requires EPA to set stringent effluent li-

mitations for municipal dischargers, among others. 33

U.S.C. §1311(b). Public sewerage works must institute

secondary treatment by July 1, 1977. 38 U.S.C. §1311

(b)(1)(B), §1814(d)(1).. By July 1, 1985 such agencies

must achieve the “best practicable waste treatment tech-

nology over the life of the works”. 33 U.S.C. §1311(b)

(2) (B), §1281(g) (2) (A).

Each state is now directed to promulgate water quality

standards governing all interstate and intrastate waters,

under oversight by EPA, and to review such standards

at least once every three years. 33 U.S.C. §1313(a),(e),

(d),(e). The states are permitted to impose more strin-

gent effluent limitations or other forms of pollution con-

trol than those set by EPA, subject to EPA approval.

33 U.S.C. $1370. The act specifies certain restrictions on

EPA in terms of cost justification in setting forth effluent

limitation standards. 33 U.S.C. §1812(a),(b).

Of particular significance in the present regard is the

establishment by the revised legislation of the National

Pollutant Discharge Elimination System (“NPDES”) (33

U.S.C. §1342) which is designed “to transform generally

applicable effluent limitations and other standards—inelud-

ing those based on water quality, into the obligations

(including a timetable for compliance) of the original dis-

charger”. EPA v. State Water Resources Control Board,

supra, 426 U.S. at 205. It is unlawful for any person

to discharge pollutants into the interstate or navigable

* “Point source’ means any “discernible, confined and discrete

conveyance, including, but not limited to, any pipe, ditch, channel,

conduit, well, ** or vessel or other floating craft, from which

pollutants are or may be discharged**”. 33 U.S.C. §1362 (14).

waters without a NPDES permit. Such permits are is-

sued by the EPA and by states where EPA has author-

ized a state agency to administer the NPDES program.

The instant petitioners hold EPA NPDES permits.

Any interested party, including a state whose waters

may be affected by the discharges in question, is en-

titled to notice and an opportunity for a hearing regard-

ing the issuance of a permit. 33 U.S.C. §1342(a)(1),

(b) (3)-(d) (5).

The revised FWPCA also strengthens the enforcement

provisions of the statute. Criminal penalties are pre-

scribed for willful or negligent violations of the act, 33

U.S.C. §1319(c), and EPA is authorized to bring civil

enforcement actions for appropriate relief, including in-

junctions, and for specified civil penalties. 33 U.S.C.

§1319(a),(b),(d). In certain circumstances states and ad-

versely affected private persons may also bring enforce-

ment actions. 33 U.S.C. §1319(a) (1).

A significant aspect of the revised legislation was the

provision for massive infusion of federal grant funds to

local sewerage agencies for construction and improvement

of treatment plants and processes, for research and in-

vestigation of water pollution problems and in general

for expediting the achievement of the statutory objectives

by the targeted dates. See, illustratively, 33 U.S.C. §1281

(g),(h),(3).

The Senate Public Works Committee stressed the fiscal

aspects of the program:

“To assist states and localities, the bill proposes

a four year program of Federal grants for con-

struction of sewage treatment plants. The Fed-

eral matching funds total 14 billion dollars through

fiscal year 1975.

The minimum Federal grant is set at 60 percent

of project costs. If a state contributes as much

as 10 percent of project costs, the Federal graut

is increased by a matching 10 percent. A locality’s

share thus becomes 20 percent of project costs.”

S. Rep. No. 92-414, 1972 U.S. Code Cong. & Adm.

News, 3668, 3674.

Substantial additional federal appropriations have been

made to support research and development, as well as

administration.

By amendment in 1977 it was mandated that any guide-

lines for cost-effectiveness analysis promulgated by EPA

must provide for selection of “cost effective alternatives”

for many of the waste management improvement devices

called for elsewhere in the statute. 33 U.S.C. §1297. Thus

did Congress manifest new concern with the economics

of pollution abatement.

Congress made evident its intent that local sewerage

agencies could rely upon compliance with the statutes as

meeting any lability for water pollution. The Senate

report stated:

“Water pollution control in the past has all too

often been sporadic, inconsistent, and improvised

on an ad hoe basis. ‘The major purpose of this

legislation is to establish a comprehensive long-

range policy for the elimination of water pollu-

tion, making it clear to industry and municipali-

ties alike the pollution control performance which

will be expected over the next decade.” §S. Rep.,

1972 U.S. Code Cong. & Adm. News, p. 3758.

In discussing the citizens suit provisions of the act,

the Senate Committee sought to assure dischargers that

they would have only objectively determinable standards

to meet. The report stated:

“Section 505 [1365] would not substitute a ‘eom-

mon law’ or court-developed definition of water qua-

lity. An alleged violation of an effluent control

limitation or standard would not require reanalysis

of technological in [sic] other considerations at the

enforcement stage. These matters will have been

settled in the administrative procedure leading to

the establishment of such effluent control provision.

Therefore, an objective evidentiary standard will

have to be met by any citizen who brings an ac-

tion under this section.” S. Rep. 1972 U.S. Code

Cong. & Adm. News at p. 3745.

This expression is hardly compatible with a supposed

legislative intent that dischargers, besides having to meet

EPA standards, would additionally be in peril of what-

ever unpredictable standard a common-law judge deemed

“reasonable” in a nuisance action.

(6) MPRSA is of preemptive scope.

MPRSA, adopted in 1972 after the JIlinois decision, and

amended in 1977, is fully as comprehensive in the area

of ocean dumping as is FWPCA in that of water pollu-

tion generally. By the enactment Congress declared it

to be the policy of the United States “to regulate the

dumping of all types of materials into ocean waters and

to prevent or strictly limit the dumping into ocean waters

of any material which would adversely affect human health,

welfare, or amenities, or the marine environment, eco-

logical systems, or economic potentialities’. 33 U.S.C.

§1401(b). Except as authorized by a permit issued pur-

suant to either Section 1412 or Section 1413 of the title,

and subject to regulations issued pursuant to Section 1418

of the title, all transportation of any material for the

purpose of dumping it into the ocean, as well as the

dumping itself was prohibited. 33 U.S.C. $1411.

Except as to dredged material, regulated by Section

1413 of the statute, and in relation to radioactive waste,

for which no permit could he issued, EPA was authorized

to issue permits for dumping material into ocean waters

where the administrator determined “that such dumping

will not unreasonably degrade or endanger human health,

welfare, or amenities, or the marine environment, eco-

logical systems or economic potentialities.” 33 U.S.C.

§1412. In establishing such criteria the administrator was

directed to consider, although not be limited to: the need

for the proposed dumping; the effect of such dumping

on human health and welfare; the effect of such dump-

ing on fisheries resources, shorelines and beaches; the

effect of such dumping on marine ecosystems; the per-

sistence and permanence of the effects of the dumping;

the effect of dumping particular volumes and concentra-

tions of such materials; appropriate locations and methods

of land-based alternatives and “the probable impact of

requiring use of such alternate locations or methods upon

considerations affecting the public interest”; and the effect

on alternate uses of oceans. 33 U.S.C. §1412(a).

In establishing or revising such criteria the administra-

tor was directed to consult with federal, state and local

officials and interested members of the general public. No

permit could be issued for a dumping of material which

would violate applicable water quality standards. The

administrator was authorized to designate sites and times

for dumping. 33 U.S.C. §1412(c). A particular effort

was made for consistency of this statute with the FW

PCA amendments. S. Rep. No. 92-451 1972, U.S. Code

& Adm. News, 4234, 4257.

As noted above, by virtue of the 1977 amendment of

MPRSA, a terminal date was set for the ocean dump-

ing of sewage sludge, z.e. December 31, 1981. 33 U.S.C.

§1412a..

EPA has promulgated and is enforcing against all ocean

dumpers of sewage sludge, including the New Jersey agen-

cy petitioners in this case, a highly detailed set of re-

gulations for permits, geared to fixed schedules aimed

at effecting cessation of ocean dumping of sewage sludge

by the end of 1981.

The statute contains the same citizens suit provisions

as FWPCA, including a savings clause. 33 U.S.C. §1415

(g)(5). It contains detailed civil and criminal sanctions

for its enforcement, §1415.

While, under the act, the states are prohibited from

adopting or enforcing any rule or regulation relating to

ocean dumping, any state is permitted to propose to the

administrator criteria relating to the dumping of materials

into ocean waters within its jurisdiction or into other

ocean waters to the extent of affecting waters within

the jurisdiction of that state. 33 U.S.C. §1416(d). The

administrator is permitted to adopt such criteria and issue

accordant regulations to implement them if after hear-

ing he determines that they are not inconsistent with

the purposes of the law. Ibid.

Congress has made available very substantial funding

for the design and creation under EPA supervision of

suitable facilities as land-based alternatives for disposi-

tion of sewage sludge. MCSA has made applications for

grants for such purposes and is in the course of active

progress toward achieving land-based disposition of sew-

age sludge at an early date. It is believed that the other

New Jersey petitioner agencies are also in the same pro-

cess. However, very substantial technological-environ-

mental* and financial difficulties need to be overcome in

order to attain the statutory goal of termination of ocean

dumping of sewage sludge by the end of 1981.

In these regards, it is significant that the statute man-

dates comprehensive and far-reaching research programs.

33 U.S.C. §1441 et seg. As of the date of adoption of

* Land-based alternatives to ocean dumping of sewage sludge are

mainly either incineration or land-fill or composting. These, respec-

tively, present substantial problems of pollution of the air and

of leaching into subterranean aquifers. Note that in dealing with

grants for construction of treatment works Congress directed in

FWPCA that care should be taken that the ultimate disposal of

sludge be effected “in a manner which will not result in environ-

mental hazards”. 33 U.S.C. §1281(d) (4).

the statute “only meager information [existed] with re-

gard to what concentrations and which of the chemicals

or toxicants have deleterious effects on the marine ecology

and what processes can best be utilized to treat or re-

move such materials prior to discharge to the marine

waters”. S. Rep. No. 92-451, 1972 U.S. Code Cong. &

Adm. News, 4232, 4240. The field involved is obviously

one of high scientific and economic technicality, especi-

ally suited to oversight by an expert administrative agen-

cy operating under fixed and uniform Congressional guide-

lines, rather than by ad hoc disposition in common-law

tort suits.

3. Considerations of law and policy bespeak preemption

in this area.

Various tests for preemption by statute laid down by

this Court meet the present situation. The regulatory stat-

utes as they now stand demonstrate an “implicit legisla-

tive design” calling for preemption, see Philadelpia v. New

Jersey, supra, (437 U.S. at 620, n.4), and any continued

availability of federal common-law nuisance actions against

sewerage agencies operating under the regulatory statutes

would entail “the general incompatibility with basie fed-

eral objectives” implicit in such legislation. Jbid. In our

view, continued acceptance by federal courts of nuisance

actions against public sewerage agencies situated like

these petitioners would “prevent the accomplishment and

execution of the full purposes and objectives of Congress”

in creating the regulatory mechanism represented by

FWPCA and MPRSA. Jones v. Roth Packing Co., supra,

(430 U.S. at 526). See also Burbank v. Lockheed, supra

(411 U.S. at 633), commenting upon “the pervasive na-

ture of the scheme of federal regulation” involved in the

statute there held to effect preemption of state law.

It does not seem to us that it should make any differ-

ence that the object of preemption is federal common law

as distinguished from state law. The same principles ap-

pear logically applicable, and are, indeed, compelled by

the doctrine of federal legislative supremacy in matters of

national concern.

We note that at this writing the question of preemption

of a state’s right to bring a federal common-law nuisance

action against a public sewerage agency is before this

court on certiorari (No. 79-408) to review the decision of

the Seventh Cireuit Court of Appeals in People of State

of Ill. v. City of Milwaukee, 599 F.2d 151 (1979). While we

are in agreement with the position of Milwaukee in that

case, we would not regard an affirmance of the Court of

Appeals there as precluding a holding in favor of these

petitioners in this case. Our position is consistent with the

continued viability of a federal nuisance action when in-

stituted by a state. Secondly, the instant case involves the

matter of ocean dumping of sewage sludge—not a factor

in the Illinois case. Success of the instant plaintiffs would

entail the inculpation of ocean dumping as much or more

than discharge of sewage effluent. The interrelated and

cumulative comprehensiveness of FWPCA and MPRSA in

the ocean pollution area impellingly suggests a grand stra-

tegy by Congress in these related fields to preclude fur-

ther maintenance of harassing common-law nuisance

actions in federal courts against public sewerage agencies

attempting to meet the goals of these statutes.

The anomaly of judicial proscription of conduct ex-

pressly permitted by authorized regulatory agencies has

been noted in several decisions. See Committee for Jones

Falls Sewage System v. Train, 535 F.2d 1006, 1009 (4 Cir.

1976); Potomac River Ass’n. Ine. v. Lundeberg Maryland

Seamanship Schools, 402 F.Supp. 344 (D. Md. 1975); New

England Legal Foundation v. Costle, 475 F.Supp. 425, 441-

442 (D.Conn. 1979). (“This Court will not devise an equit-

able remedy to proscribe the very conduct that EPA, act-

ing in its regulatory capacity pursuant to statutory man-

date, has specifically legitimated’); cf. United States v.

Atlantic-Richfield Co., 478 F.Supp. 1215, 1218 n.5 (D. Mont.

1979), where the court, although failing to find preemp-

tion against a tort action by the United States in the Clean

Air statutory context, nevertheless said:

“There are many reasons which would make one

exclusive administrative system of controlling air

pollution desirable. The whole matter is highly

complex and involves the intricacies of chemistry,

engineering and economics. Courts are not espe-

cially equipped to deal with these problems * * *

If the courts are permitted to interfere, their de-

cisions will sooner cr iater come into conflict with

the administrative decisions and create confusion

and uncertainty”.

In Committee for Jones Falls Sewage System v. Train,

supra, (539 F.2d 1006), in rejecting on the merits an

action by private groups and individuals to enjoin the

grant of EPA permits for sewer connections and to revoke

other existing permits, Judge Haynsworth wrote:

“Indeed it would be an anomaly to hold that

there was a body of federal law which proscribes

conduct which the 1972 Act of Congress [FWPCA]

legitimates. The defendants are in compliance with

the statute. They are operating under a permit

issued in accordance with the statute and the auth-

orization of the EPA. The Congress and the Exee-

utive Department, acting through the EPA, have

declared their conduct lawful until the time for

the application of more restrictive standards.”

Id. at 1009.

It is earnestly submitted that every consideration of

sound law, environmental policy and the expeditious

achievement of the legislative goals here implicated dic-

tates immunity from federal common-law nuisance litiga-

tion for public sewerage agencies which are functioning

under the regulative control and oversight of the agencies

charged with the administration and enforcement of

FWPCA and MPRSA. Such sewerage agencies should

not have to meet multiple inconsistent discharge or dump-

ing standards. Moreover, it seems particularly invidious

that such agencies should have to face the prospect. of

multi-million dollar damage suits, the successful consum-

mation of which would clearly operate at cross-purposes

with established federal pollution-control policy and divert

to private coffers dollars sorely needed to mect the difficult

technological requirements of compliance with federal regu-

lations. Damage judgments in such actions would also in-

directly subvert the federal funds being appropriated by

Congress to these agencies to assist financially hard-

pressed local communities in meeting the federal objec-

tives. Such results cannot reasonably be thought within

the legislative contemplation as derived from a fair ap-

praisal of the statutes and their history.

The same considerations are supported by the unani-

mous view of the legal-environmental experts, quoted here-

inabove, to the effect that the judicial common-law ap-

proach to environmental pollution is functionally useless

vis-a-vis the alternative of comprehensive federal legisla-

tive and administrative regulations and in fact is incom-

patible with the latter.

For the foregoing reasons, it is submitted that preemp-

tion of the federal common-law nuisance remedy, at least

to the limited extent argued for herein, should be judi-

cially determined in this cause.

CONCLUSION

For the foregoing reasons it is respectfully submitted

that the judgment of the Court of Appeals should be

reversed and the complaint ordered dismissed as against

these petitioners.

Respectfully submitted,

TEPHEN J. MOSES MILTON B. CONFORD

1 Essex Street Wilentz, Goldman & Spitzer

Hackensack, New Jersey 07601 A Professional Corporation

(201) 343-6612 900 Route 9

ounsel for Petitioner, Woodbridge, New Jersey 07095

Berzen County Sewerage Authority (201) 636-8000

ENE!.AOS W. TOSKOS Counsel for Petitioners,

Of Counsel Middlesex County Sewerage Authority and

Township of Middletown Sewerage

INCENT J. JENNINGS Authority

f Counsel for Petitioner FRANCIS X. JOURNICK

Township of Middletown Sewerage MARVIN J. BRAUTH

Authority

, Of Counsel

Furman & Jennings, Attorneys

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