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

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

‘ is

coe:

lo titeg

___DEG 12 1980

Nos. 79-1711, 79-1754, 79-1760 and 80-12

Gu the Supreme Court of the United Bitates,. a

OCTOBER TERM, 1980

MIDDLESEX COUNTY SEWERAGE AUTHORITY, ET AL., |

PETITIONERS

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

JOINT MEETING OF ESSEX AND UNION COUNTIES, PETITIONER

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

City oF NEW YORK AND ABRAHAM BEAME, PETITIONERS

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

ENVIRONMENTAL PROTECTION AGENCY, ET AL., PETITIONERS

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL PETITIONERS

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

Louis F.. CLAIBORNE

Deputy Solicitor General

ALAN |. HOROWITZ

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

RAYMOND N. ZAGONE

JACQUES B. GELIN

DAvip T. BUENTE, JR.

Attorneys

Department of Justice ;

Washington, D.C. 20520 f

(202) 633-2217

Iu the Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-1711

MIDDLESEX COUNTY SEWERAGE AUTHORITY, ET AL.,

PETITIONERS

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

No. 79-1754

JOINT MEETING OF ESSEX AND UNION COUNTIES,

PETITIONER

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

No. 79-1760

CiTy OF NEW YORK AND ABRAHAM BEAME,

PETITIONERS

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.

(I)

No. 80-12

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

PETITIONERS

Vv.

NATIONAL SEA CLAMMERS ASSOCIATION, ET AL.*

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR THE FEDERAL PETITIONERS

QUESTIONS PRESENTED

1. Whether the Federal Water Pollution Control

Act (Clean Water Act), 33 U.S.C. (& Supp. I) 1251

et seq., and the Marine Protection, Research, and

Sanctuaries Act of 1972, 33 U.S.C. (& Supp. I) 1401

et seq., imply a private right of action independent

of the rights explicitly created by the citizen suit

provisions of those Acts, 33 U.S.C. 1865 and 33 U.S.C.

1415(g).

* Other petitioners in No. 80-12 are Russell E. Train, indi-

vidually and as Administrator of the United States Environ-

mental Protection Agency, United States Army Corps of

Engineers, and Martin R. Hoffman, individually and as Sec-

retary of the United States Department of the Army. Doug-

las M. Costle is now the Administrator of EPA and Clifford

L. Alexander is now the Secretary of the Army.

Other petitioners in No. 79-1711 are Bergen County Sewer

Authority, Passaic Valley Sewerage Commissioners, the

Linden Roselle Sewerage Authority and Middletown Sewerage

Authority.

Gosta Lovgren is a respondent in all petitions.

Itt

2. Whether a private citizen has standing to main-

tain a federal common law nuisance action for alleged

damages sustained resulting from ocean pollution as

a general federal question under 28 U.S.C. 1331.

3. Whether any federal common law nuisance ac-

tion for alleged damages sustained resulting from

ocean pollution, if available to a private citizen, is

not preempted by the present regulatory scheme gov-

erning ocean pollution established by the Federal

Water Pollution Control Act (Clean Water Act) and

the Marine Protection, Research, and Sanctuaries

Act of 1972.

TABLE OF CONTENTS

Page

oe be. TET EE TN OT Ae IRE 1

IRIN sssinieshisniliiesbsdeinistidtatsiecebiodecieciesndaesine ais Sali ce cs. 1

PP NINE ik Sccssnscnnntderstsinspeparignincie incited cits 1

MII untisGiiindcinne4 nichibeinnilascabectiiedtphassudlec eco 1

Summary of argument 000 7

Argument:

I. No private right of action can be implied under

the Clean Water Act or the MPRSA apart from

the citizen suits explicitly provided for in those

SPE cplhbccttecnvnteitintct a tT A ers 10

A. The Clean Water Act and the MPRSA draw

no distinction between plaintiffs based on

the type of injury alleged 14

B. Congress had no intent to create a private

remedy under these statutes other than

that specified in the citizen suit provisions.. 17

C. Application of the Cort factors also suggests

that no private right of action should be

NE tie ne 22

II. A private party has standing to bring an action

for damages under the federal common law of

RI sae Alcea Lek Pek elie 27

III. The Clean Water Act and the MPRSA do not

preempt the federal common law of nuisance... 36

RITES TARA TR IE TORRY = EOS Ah aR BO 38

RN AE ENT MND ET NORTE, i la

PREVIOUS PAGE WAS BLANK ©

TABLE OF AUTHORITIES

Cases: Page

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

__—__ NESE ore nanOC TIO en SEE ST EMCO eT ee 29

Bank of America V. Parnell, 352 U.S. 29 -............... 31, 34

Byram River v. Village of Port Chester, 394 F.

| igtensot eR ANS at RE TS SO OOS NORTE SORES 34

Cannon V. University of Chicago, 441 U.S. 677...... 13, 23

City of Evansville v. Kentucky Liquid Recycling,

Inc., 604 F.2d 1008, cert. denied, 444 U.S. 1025.. 26, 34

City of Highland Park v. Train, 519 F.2d 681 ........ 26

Clearfield Trust Co. v. United States, 318 U.S. 363.. 29

Committee for Consideration of Jones Falls Sew-

age System v. Train, 375 F. Supp. 1148, aff’d

on different but not inconsistent grounds, 539

RD MII aut aiicidee Nee pl kis eh scheccmncsaedeerutecs 34

Commonwealth of Massachusetts v. United States

Veterans Administration, 541 F.2d 119 .............. 28

Cort Vv. Ask, 4223 US. 66 .....:.............- 5, 7, 18, 14, 22, 23, 26

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193... 11

pw. OER eeu nae eh NEO 32

E. 1. du Pont de Nemours & Co. v. Train, 430 U.S.

| RENN EK BL Re eae 1 NE OTR SSae ce EE Wee ee A i, ee

Georgia V. Tennessee Copper Co., 206 U.S. 2380...... 30

Hinderlider v. La Plata River & Cherry Creek

I i, TE Me IE once ns tect cicdcackchectcctnasacoctonuad 9, 29, 33

Illinois v. City of Milwaukee, 406 U.S. 91 ........ 6, 9, 28, 29,

30, 31, 34

Illinois v. Outboard Marine Corp., 619 F.2d 623,

petition for cert. pending, No. 80-126 (filed

EO a ea ae i a rar 32

Kaiser Aetna v. United States, 444 U.S. 164 .......... 32

Kansas v. Colorado, 206 U.S. 46 ........00000000202..22---- 29

National Railroad Passenger Corp. v. National As-

sociation of Railroad Passengers, 414 U.S. 453.. 14-15

Natural Resources Defense Council v. Callaway,

ARTS CAIRO ay Wt oon PES NRO 26

Natural Resources Defense Council v. Train, 510

gp RN ee Pie OSS ik Oe, MT Ce EN 26

New Jersey V. City of New York, 283 U.S. 473........ 30

New York v. New Jersey, 256 U.S. 296 .................. 30

VII

Cases—Continued Page

Parsell v. Shell Oil Co., 421 F. Supp. 1275, aff’d,

Pee woe eee CEO 34

Reserve Mining Co. v. EPA, 514 F.2d492... 33

Sanitary District v. United States, 266 U.S. 405.... 32

Sierra Club v. Morton, 405 U.S. 727... 15, 16

Touche Ross & Co. v. Redington, 442 U.S. 560...... 7, 18,

14, 22

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

II isa hr a ge al ce 34

Transamerica Mortgage Advisors, Inc. v. Lewis,

I ee ee re 7, 18, 14, 15, 22

Union Oil Co. v. Oppen, 501 F.2d 558. 36

United States v. Appalachian Electric Power Co.,

en ee eh a eA 82

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

RS MN er | 32

United States v. California, 382 U.S.19...... 80

United States v. Ira S. Bushey & Sons, 346 F. Supp.

145, 363 F. Supp. 110, aff’d, 487 F.2d 1393

(Table), cert. denied, 417 U.S. 976... 32-33

United States v. Mitchell, 445 U.S. 585 28

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

cert. denied, 420 U.S. 927 .........0......, 32

United States v. Testan, 424 U.S.392.... 28

United States ex rel. Scott v. United States Steel

Corp., 366 F. Supp. 656 .. 33

Vermont v. New York, 417 U.S. 270 ........ 29-30

Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1... 31

Constitution, treaty, statutes and rule:

United States Constitution :

Convention on the Territorial Sea and the Con-

tiguous Zone, 15 U.S.T. 1606, T.I.A.S. No. 5639

ee ane OT RA oe VL Te Nipok a UT oe 30

Act of Dec. 28, 1973, Pub. L. No. 93-207, 87 Stat.

nea i ORANGE OMNES LA PORE BD eel LD 2

VIIl

Constitution, treaty, statutes and rule—Continued Page

Act of Nov. 2, 1978, Pub. L. No. 95-576, 92 Stat.

DY oacvcsiiacavsesshininciennnitncecicmnatedigeiendalea 2

Administrative Procedure Act, 5 U.S.C. 701 et

BO - wcoiinaccsnaksicicwnstiokomnntssubbetidlegiticiienaesaanade aan 3

Section 20, 6 UDG. Feb necccccscciniieteeee 15

Clean Air Act, 42 U.S.C. (Supp. I) 7604 _.............. 8,11

Clean Water Act (Federal Water Pollution Control

Act Amendments of 1972, Pub. L. No. 92-500,

86 Stat. 816, as amended by the Clean Water Act

of 1977, Pub. L. No. 95-217, 91 Stat. 1566), 33

USS. 7061 06 6. ucla 2,3

USC. Te unc 22

SS. UBG. TABATA). sicccaccaeieenieees 33

SS TBA... ERG Ge. ecercesceectesstaee 33

88 U.S.C. (& Supp. I) 1811(b) .................... 11

$8 U.S.C. (@ Sapp. 1) 1824(a) ................. 23

$3 U.S. (6 Beem. 0 Bee cccckseedeece 11

338 USS. (ane. f) TRAE) ..ntoccn ee 31

33 USL. t@. Geek EP See ee eee 11

SS UBC. Cie. 5) ERE ucanccee 23

SD Ue SOND sliesnoieessactiensteal 1,4, 5,11, 17, la

3S UBS. TORR uci eee 12

SS: USA. 3eeetes OF). nee 12

TR CBS. TOD ~eieccnicutcneieaeee 12, 24

SR UBC. TGC) CG CBD | cceetsnienctic eee 12, 24

SS ULLBAL. TOGO) nici 12

SS UC. TO tOe «cscs 4,5, 7, 12, 17, 25, 37

SS UBC. Bt) | nsccciccecccdcieeeeee 15

Be | UE Taira. RIO» Sadivvnincncsvsivcssnicetnianneueeeee 25

SS Uae. 1) .nncu..iaee 11

Se UB. TRIG © icciecaicecontineeeee 5

Comprehensive Environmental Response, Compen-

sation and Liability Act of 1980 (or “Super-

fund’’), H.R. 7020, 96th Cong., 2d Sess. (1980).. 35

OCTNOTR RT CED cvicnceniccisssuceccaetneceeee 35

Deepwater Port Act of 1974, 33 U.S.C. 1515 .......... 12

Endangered Species Act of 1973, 16 U.S.C. 1540

GID aicncnsnnsierennniintsaclanihidieeseeatapeeagn iain 11

Constitution, treaty, statutes and rule—Continued Page

Extension of Admiralty and Maritime Jurisdiction

I 3,5

Federal Tort Claims Act (FTCA), 28 U.S.C. 1291

et seq.:

EE OE | |) ea en Ee 3

eS mg FF eae eee 3

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

Ee Eg * Cerne, tein 10

Fishery Conservation and Management Act of

aeee, 20 USC. 1801 ot aoe. ....................-............ 31

Marine Protection, Research, and Sanctuaries Act

of 1972 (MPRSA), 33 U.S.C. 1401 et seq. .......... 2,3

Be So TS) oe 33

MO MA, WOR EUDD on. eicaciveccceccccoinesccsvcrcessecceonens 22, 33

MR Ooo sccsisvessvenccdzeneaccenacecceccess 31

SS U.S.C. 1412-1414 ......................................... 11

A 8 sR sh | OS cr 23

38 U.S.C. 1412(a) (C) nnn. cccecnccnne nee 23

MM, I oases ca vonsesancdeocseeesceuesooseesnas 11

oe wee 2O1G(e) .............................. ..1, 4, 6, 11, 4a

oe Ue. 1615(¢) (1) ...................................... 12

me wae 2OIGGe) CR) ................................ 12, 24

83 U.S.C. 1415(g) (2) (A) oo 12, 24

33 U.S.C. 1415(g) (5) 0... 4, 6, 7, 12, 17, 25, 37

National Environmental Policy Act of 1969

(NEPA), 42 U.S.C. 4821 et seg. ........................ 3

Noise Control Act of 1972, 42 U.S.C. 4911... 11

Outer Continental Shelf Lands Act, 48 U.S.C. 1331

I Ms tisiohiaiiiaaloin need okay kiana ac ee 31

Resource Conservation and Recovery Act of 1976,

42 U.S.C. (& Supp. II) 6972 ciecbcatian eons 11

Rivers and Harbors Act of 1899, Section 18, 33

I al Se la 3,4

Safe Drinking Water Act, 42 U.S.C. (& Supp. I)

GL RESEDA Ae a 12

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. (Supp. I) 1270 12

Constitution, treaty, statutes and rule—Continued Page

Toxic Substances Control Act, 15 U.S.C. 2619-

ON 12

I a eaten 4, 6, 26

iy a ce ae eas 3

Re 3

Oe es I a anes 7

ne eines 3,5

rT 3

a ee 3

SN OnE Ea i 3

a oe 3

ME AG LR RRR eh eee, Vie gece ire 4

Miscellaneous:

116 Cong. Rec. (1970) :

Os a ra cae 20

I a 20

126 Cong. Rec. H118038 (daily ed. Dec. 3, 1980)...... 35

126 Cong. Rec. S15009 (daily ed. Nov. 24, 1980)... 35

126 Cong. Rec. $14954 (daily ed. Nov. 24, 1980)... 35

Friendly, In Praise of Erie—And of the New Fed-

eral Common Law, 39 N.Y.U. L. Rec. 383

IP PRSEERERERETRE SSR Bir Uae oe SPT ON RW eee See Bee 31

H.R. 11896, 92d Cong., 2d Sess., Section 505(g)

UU si ca a a a ha 16

H.R. Rep. No. 92-361, 92d Cong., Ist Sess. (1971).. 18

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972).. 16

H.R. Rep. No. 92-1401, 92d Cong., 2d Sess. (1972).. 37

Hill, The Law-Making Power of the Federal

Courts: Constitutional Preemption, 67 Colum. L.

RAR a Dee areca a 33-34

1 Legislative History of the Federal Water Pollu-

tion Control Act Amendments of 1972, 93d

Cong., Ist Sess. (Comm. Print 1973) _............ 16, 17, 37

W. Prosser, Law of Torts (4th ed. 1971) .............. 36

Restatement (Second) of Torts (1979) .................. 36

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

2 | EASES LP SOON AR REI Ae Se ORR Oe ET 15

Miscellaneous—Continued Page

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970).. 19

S. Rep. No. 92-414, 92d Cong., 1st Sess. (1971)......18, 19,

21, 24, 25

S. Rep. No. 92-451, 92d Cong., Ist Sess. (1971)...... 18, 23

Woods & Reed, The Supreme Court and Interstate

Environmental Quality: Some Notes on the

Wyandotte Case, 12 Ariz. L. Rev. 691 (1970).... 30

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-

dla)" is reported at 616 F.2d 1222. The opinion of

the district court (Pet. App. 35a-59a) is unofficially

reported at 12 E.R.C. 1118.

JURISDICTION

The judgment of the court of appeals (Pet. App.

32a-34a) was entered on February 5, 1980. The

petition in No. 79-1711 was filed on April 29, 1980,

and the petitions in Nos. 79-1754 and 79-1760 were

filed on May 5, 1980. On April 24, 1980, Mr. Justice

Brennan extended the time for filing a petition for a

writ of certiorari in No. 80-12 to and including

July 4, 1980, and that petition was filed on July 3,

1980. All petitions were granted on October 20, 1980,

limited to the questions stated herein (J.A. 48a). The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATUTES INVOLVED

Section 505 of the Clean Water Act, 33 U.S.C.

1365, and Section 105(g) of the Marine Protection,

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

1415(g), are set forth in the Appendix, infra.

STATEMENT

1. Respondent National Sea Clammers Associa-

tion is an association whose members earn their liv-

ing harvesting fish and shellfish in the Atlantic Ocean

off the coast of New York and New Jersey. Respond-

ent Gosta Lovgren is an individual member of the

* “Pet. App.” refers to the appendix in No. 80-12.

(1)

association. On January 14, 1977, those two re-

spondents brought suit, on behalf of themselves and

all others similarly situated, against petitioners in

the United States District Court for the District of

New Jersey.

The complaint alleges that the City of New York

and other New York and New Jersey municipalities

in the New York City metropolitan area discharge

sewage, dredge spoil, and other toxic materials into

the Hudson River and New York Harbor and that

the discharged waste eventually is carried into the

Atlantic Ocean (J.A. 23a). It is further alleged that

various municipalities and the Army Corps of Engi-

neers dump toxic substances directly into the Atlantic

Ocean (J.A. 23a-24a). Some of these discharges and

dumpings are said to bé authorized by permits issued

by the Corps of Engineers and by the Environmental

Protection Agency pursuant to the Clean Water Act,

33 U.S.C. 1251 et seq.,> and the Marine Protection,

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

1401 et seq. (J.A. 28a-24a, 30a-32a), whereas other

discharges and dumpings are alleged to be in viola-

tion of permits that have been issued (J.A. 37a).

The complaint alleges that these pollutants caused

a massive growth of algae in 1976 in an area extend-

ing more than twenty miles offshore from Long Is-

land to Cape May, New Jersey (J.A. 25a). The

claim is that when this algae mass bloomed and died

it settled on the ocean floor, and its decomposition

* The Clean Water Act refers to the Federal Water Pollu-

tion Control Act Amendments of 1972, Pub. L. No. 92-500, 86

Stat. 816, as amended by the Clean Water Act of 1977, Pub.

L. No. 95-217, 91 Stat. 1566. See also Act of Dec. 28, 1973,

Pub. L. No. 93-207, 87 Stat. 906; Act of Nov. 2, 1978, Pub.

L. No. 95-576, 92 Stat. 2467.

created an oxygen deficiency that caused severe dam-

age to marine life in the area (Pet. App. 3a). The

complaint charges that the discharges and dumpings

“have caused and continue to cause massive destruc-

tion of marine plant life, fish, clams, lobsters and

other marine life unable to escape and thereby, has

caused and continues to cause the collapse of the

fishing, clamming and lobster industries which oper-

ate in the waters of the Atlantic Ocean” (J.A. 26a).

The complaint alleges violations of the National

Environmental Policy Act of 1969 (NEPA), 42

U.S.C. 4821 et seqg., the Clean Water Act, 33 U.S.C.

1251 et seg., the Marine Protection, Research, and

Sanctuaries Act of 1972 (MPRSA or “Ocean Dump-

ing Act”), 83 U.S.C. 1401 et seq., Section 13 of the

Rivers and Harbors Act of 1899, 33 U.S.C. 407, the

federal common law of nuisance, the Fifth, Ninth

and Fourteenth Amendments to the Constitution and

New York and New Jersey statutes. The jurisdiction

of the district court is invoked under 28 U.S.C.

1331(a), 1832, 1837, 1848 and 1361, 42 U.S.C. 1983,

the Federal Tort Claims Act (FTCA), 28 U.S.C.

1346(b) and 28 U.S.C. 2671 et seq., the Administra-

tive Procedure Act, 5 U.S.C. 701 e¢ seq., the Exten-

sion of Admiralty and Maritime Jurisdiction Act,

46 U.S.C. 740, and under 28 U.S.C. 1333(1). The

relief sought includes the imposition of fines and

penalties against the dischargers to be paid in part

to the plaintiffs (J.A. 42a, 45a), a declaration that

the federal petitioners have failed to comply with the

requirements of the Clean Water Act, MPRSA and

NEPA (J.A. 42a), mandamus to compel the federal

petitioners to revoke all permits allowing discharges

into New York Harbor, the Hudson River and the

Atlantic Ocean (J.A. 43a) and an injunction against

the dischargers to prevent further dumping (J.A.

43a-44a). In addition, the complaint seeks $250 mil-

lion in actual damages and $250 million in punitive

damages to be “assessed against defendants jointly

and severally” (J.A. 41a).

2. Petitioners moved to dismiss the claims under

Fed. R. Civ. P. 12(b). The district court treated the

motion as one for summary judgment and ordered the

complaint dismissed with prejudice, except that some

of the state law claims were dismissed without preju-

dice (Pet. App. 60a-61a).

The district court dismissed the claims under the

Clean Water Act and the MPRSA for lack of juris-

diction because the plaintiffs did not comply with the

procedural requirements of the citizen suit provisions

of those Acts, 33 U.S.C. 1865 and 33 U.S.C. 1415(g),

in particular the requirement that 60 days’ notice be

given to EPA and to the alleged violator prior to the

commencement of suit (Pet. App. 45a-46a). The court

rejected the argument that jurisdiction exists under

28 U.S.C. 1331 over an implied right of action de-

rived from the savings clauses of those statutes, 33

U.S.C. 1865(e) and 1415(g) (5), which is not sub-

ject to the specific requirements of the citizen suit

provisions, ruling that “[t]he manifest purpose of

the savings clause seems to be the preservation of

existing rights, not the creation of new ones” (Pet.

App. 49a). The court also dismissed the claim under

the federal common law of nuisance on the ground

that private parties lack standing to raise such a

claim (id. at 40a-41la).

As to the other claims, the court held that no pri-

vate right of action exists under Section 13 of the

Rivers and Harbors Act of 1899, 33 U.S.C. 407 (Pet.

App. 41a-42a), and that the complaint did not state

a claim of a violation of a constitutional right or any

property interest cognizable under the Fifth Amend-

ment (id. at 51a-53a). It also ruled that EPA could

not be liable for a violation of NEPA because of the

specific exemption contained in 88 U.S.C. 1371(c)

(id. at 50a) and that there was no basis for suit

under the Extension of Admiralty and Maritime

Jurisdiction Act, 46 U.S.C. 740 (id. at 53a). Finally,

the court rejected the claim that admiralty jurisdic-

tion existed under 28 U.S.C. 1333(1) over a maritime

tort action for nuisance, ruling that the pleadings did

not allege a cause of action in maritime tort and,

even if they did, such a claim would be barred be-

cause the plaintiffs had not complied with the require-

ments for suit under the FTCA or the relevant state

tort claim statutes (id. at 58a-57a).

3. The court of appeals reversed in part, rein-

stating the claims under the Clean Water Act, the

MPRSA, the federal common law of nuisance and

in maritime tort.’ With respect to the claim under

the Clean Water Act, the court of appeals agreed

that the district court had no jurisdicion under 33

U.S.C. 1365 because the plaintiffs had not met the

procedural requirements of the citizen suit provision

(Pet. App. 4a-6a). However, in light of the Savings

clause, 33 U.S.C. 1865(e), the court found that the

citizen suit provision was not the exclusive basis for

jurisdiction under the Clean Water Act (Pet. App.

6a-lla). Applying the analysis of Cort y. Ash, 422

U.S. 66 (1975), the court of appeals noted that the

plaintiffs were members of the “ ‘class for whose

* The court vacated the dismissal of the NEPA claim, re-

manding it for reconsideration in light of further develop-

ment of the record (Pet. App. 28a-29a), and it affirmed the

dismissal of the other claims.

especial benefit the statute was enacted’”’ (Pet. App.

13a) and implication of a private remedy on their

behalf would be “ ‘helpful’ to the effectuation of” the

purposes of the Clean Water Act (id. at 15a). Ac-

cordingly, it concluded that an implied private right

of action existed under the Clean Water Act on be-

half of individuals injured by pollution in violation

of those statutes (id. at 1la-16a). Because this im-

plied right of action was unfettered by the procedural

restrictions of the citizen suit provisions, the court

of appeals held that the district court had jurisdic-

tion to hear the statutory claim under 28 U.S.C. 1331.

The court of appeals then examined the similar citizen

suit provision of the MPRSA and ruled that it was

indistinguishable from that of the Clean Water Act

for these purposes. Thus, it held that the savings

clause of the MPRSA, 38 U.S.C. 1415(g) (5), also

preserved an implied private right of action under

that statute, distinct from the citizen suit authorized

by 83 U.S.C. 1415(g), that the district court had

jurisdiction to entertain (Pet. App. 16a-18a).

The court of appeals also reinstated the plaintiffs’

federal common law of nuisance claim, holding that

private parties have standing to maintain such an

action (Pet. App. 20a-24a). The court ruled that

the federal cause of action established in Illinois v.

City of Milwaukee, 406 U.S. 91 (1972), although

that case itself involved a state as plaintiff, was

applicable whenever there is a “clear and overriding

federal interest in uniformity,” regardless of the

identity of the parties (Pet. App. 21a). In addition,

the court held that the federal common law of nuis-

ance gave rise to an action for damages in this case

(id. at 28a-24a). Finally, the court ruled that the

plaintiffs’ complaint could be read as alleging a mari-

time tort over which the district court had admiralty

jurisdiction under 28 U.S.C. 1333 (Pet. App. 24a-

27a). With reference to these tort claims, the court

of appeals agreed with the district court that the

plaintiffs had failed to comply with the procedures

required by the Federal Tort Claims Act, but did not

decide whether sovereign immunity precluded the

recovery of damages from the federal petitioners un-

der a federal common law tort theory (id. at 27a-

28a).

SUMMARY OF ARGUMENT

The question whether a private right of action

should be implied under a statute is basically one

of legislative intent. Transamerica Mortgage Ad-

visors, Inc. vy. Lewis, 444 U.S. 11, 15 (1979) ; Touche

Ross & Co. v. Redington, 442 U.S. 560, 568 (1979).

This Court has identified four factors, which are not

to be given equal weight, as indicative of legislative

intent in this context. Cort v. Ash, 422 U.S. 66, 78

(1975).

Under the Clean Water Act and the MPRSA, Con-

gress enacted special citizen suit provisions, 33 U.S.C.

1365(e) and 33 U.S.C. 1415(g) (5), to permit pri-

vate persons to sue to enforce those statutes. These

provisions are carefully limited to permit only suits

for injunctive relief and, in the case of the Clean

Water Act, for civil penalties. The suits may be

brought only for violations of established standards

or regulations or to compel the Administrator t.

perform a mandatory duty. In addition, the pro-

visions contain other requirements relating to no-

tice, venue, and abstention from suit if government

enforcement actions are pending. It is almost. in-

conceivable that, at the same time that Congress

enacted these citizen suit provisions, it intended that

another private right of action be implied in favor

of persons injured by pollution, free from the limita-

tions of the expressly authorized right of action.

The plain language of the statutes, supported by

the legislative history, indicates that Congress in-

tended the citizen suit provisions to be the exclusive

vehicle for private suits alleging violations of the

Clean Water Act and the MPRSA. First, there is no

evidence that Congress intended to restrict the citi-

zen suit provisions to “private attorneys general,”

while permitting a broader cause of action under the

statutes for persons suffering economic injury. Sec-

ond, the common sense interpretation of the savings

clauses, which is confirmed by the paraphrasing of

the clauses in the Committee Reports, is that they are

aimed only at preserving rights of action under other

statutes or the common law and do not contemplate

the existence of an implied cause of action under the

Clean Water Act or MPRSA itself. Finally, the his-

tory of these statutes, and of the prototype citizen

suit provision in the Clean Air Act, 42 U.S.C. (Supp.

I) 7604, manifests Congress’ intent that private ac-

tions outside the confines of the citizen suit provi-

sions, such as suits for damages, not be available

under the Clean Water Act or the MPRSA.

In light of the clear legisiative intent, no further

examination of the Cort factors is necessary. In any

event, those factors indicate that no private right of

action should be implied here. The plaintiffs are not

members of a class for whose especial benefit these

Statutes were passed; the Clean Water Act and the

MPRSA are statutes passed for the benefit of the

general public. Moreover, the private right of action

found by the court of appeals conflicts with the pur-

poses of the statutes in that it interferes with Con-

gress’ intended role for the agency in establishing

and enforcing effluent standards. Accordingly, the

court of appeals erred in finding an implied private

right of action under the Clean Water Act and the

MPRSA in addition to that provided in the citizen

suit provisions.

II.

In Illinois v. City of Milwaukee, 406 U.S. 91

(1972), this Court held that a state could sue under

the federal common law of nuisance to abate pollu-

tion in interstate waters. Although the Court ex-

plained that this remedy was necessary to protect a

state’s sovereign interest in unpolluted water, it noted

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

requires us to apply federal law.” 406 U.S. at 105

n.6. As in Illinois v. City of Milwaukee, the nature

of the pollution here requires the application of fed-

eral law. The quality of interstate water, as well as

that of ocean waters, has always been a matter im-

plicating an overriding federal interest, as evidenced

by several federal environmental protection statutes.

Moreover, application of state law to this interstate

controversy, with its potential for inconsistent results,

would be inappropriate.

There is no reason to prohibit the application of

this federal law in suits brought by private parties.

The United States is entitled to invoke the federal

common law of nuisance as a plaintiff. And, in a

different context, this Court has permitted a private

party to bring a suit under federal law concerning

the condition of an interstate stream. Hinderlider

v. La Plata River & Cherry Creek Ditch Co., 304 U.S.

92, 110-111 (1938). The right of a private party to

bring a federal common law of nuisance action, how-

ever, exists only where an overriding federal interest

is implicated and where the plaintiff has suffered

damage that is different in kind from that suffered

by the general public.

III.

The Clean Water Act expressly saves all other

remedies at common law. The legislative history

makes specific mention of pending actions under the

federal common law of nuisance and notes that the

ability to bring such actions will not be affected by

the Clean Water Act. Thus, it is apparent that Con-

gress did not intend to preempt the federal common

law of nuisance in passing the Clean Water Act. The

MPRSA contains a similar savings clause, and noth-

ing in its legislative history contradicts the conclu-

sion that the MPRSA also intended to preserve all

other remedies, including the federal common law of

nuisance.

ARGUMENT

I. NO PRIVATE RIGHT OF ACTION CAN BE IM-

PLIED UNDER THE CLEAN WATER ACT OR THE

MPRSA APART FROM THE CITIZEN SUITS EX-

PLICITLY PROVIDED FOR IN THOSE STATUTES

In 1972, Congress passed the Clean Water Act as a

means of exerting greater federal supervision over

the preservation of water quality in the navigable

waters of the United States.* The Act directs the

Administrator of EPA to set effluent limitations for

* Prior to 1972, the original Federal Water Pollution Con-

trol Act had assigned to the states the primary responsibility

for the development of water quality standards and enforce-

ment. See 33 U.S.C. (1970 ed.) 1151 et seq.

various categories of “point sources,” outlets from

which pollutants are discharged into the water. 33

U.S.C. (& Supp. I) 1811(b). See generally E. J.

du Pont de Nemours & Co. v. Train, 430 U.S. 112

(1977). It is unlawful for any person to discharge

pollutants into the Nation’s waters without a permit

issued by EPA (or a state agency authorized by

EPA to issue permits), which incorporates the efflu-

ent limitations and other applicable requirements. 33

U.S.C. (& Supp. I) 1842. In addition to the cus-

tomary opportunity for private participation in the

administrative process, the Clean Water Act provides

for judicial review of EPA decisions setting effluent

limitations and issuing or denying permits. 33 U.S.C.

1369(b) (1). See generally Crown Simpson Pulp Co.

v. Costle, 445 U.S. 193 (1980). The MPRSA estab-

lishes a similar permit program governing the trans-

portation of waste material from the United States

for dumping in the ocean waters. 33 U.S.C. 1412-

1414,

The Clean Water Act and the MPRSA provide for

actions by the government to enforce the water qual-

ity standards and permit systems. See 33 U.S.C.

(& Supp. I) 1819; 33 U.S.C. 1415. In addition, how-

ever, they provide for limited public participation in

enforcement by means of citizen suits. 33 U.S.C.

1365; 33 U.S.C. 1415(g). The citizen suit provision

of each statute is modeled on a prototype provision

enacted in 1970 as part of the Clean Air Act, 42

U.S.C. (Supp. I) 7604, but they are not identical.’

° Several other statutes also contain citizen suit provisions

modeled on the Clean Air Act. See Noise Control Act of

1972, 42 U.S.C. 4911; Resource Conservation and Recovery

Act of 1976, 42 U.S.C. (& Supp. II) 6972; Endangered

Species Act of 1973, 16 U.S.C. 1540(g); Safe Drinking

Under the Clean Water Act, a citizen may sue any

person who is violating an effluent limitation or re-

lated order of the Administrator, and the federal

district courts have jurisdiction of such suits to en-

force the effluent limitation or order or to assess civil

penalties against the violator. 33 U.S.C. 1865(a) (1).

A citizen may also sue to compel the Administrator

to perform a non-discretionary duty. 33 U.S.C. 1365

(a)(2). Under the MPRSA, a citizen may sue in

federal district court to enjoin any person from vio-

lating any limitation or permit established or issued

under the Act. 38 U.S.C. 1415(g)(1). In addition

to the limitations on the nature of the suit and the

type of relief available, the provisions contain ad-

ditional restrictions on this private right of action:

a requirement that 60 days’ notice be given to

the Administrator and the alleged violator before

a suit is filed (33 U.S.C. 1365(b); 33 U.S.C. 1415

(g) (2) (A)); a prohibition against bringing the suit

if the government is diligently prosecuting an en-

forcement action (33 U.S.C. 1865(b)(1)(B); 33

U.S.C. 1415(g)(2)); and a limitation of venue in

the Clean Water Act to the district in which the

violation occurs (33 U.S.C. 1365(c)). Finally, both

statutes contain a savings clause to the effect that

the citizen suit provision does not restrict any per-

son’s right to sue “under any statute or common law

to seek enforcement * * * or * * * any other relief.”

33 U.S.C. 13865(e) ; 33 U.S.C. 1415(g) (5).

Focusing on the Clean Water Act, the court of

appeals held that the citizen suit provision is not the

Water Act, 42 U.S.C. (& Supp. I) 300j-8; Toxic Substances

Control Act, 15 U.S.C. 2619-2620; Surface Mining Control

and Reclamation Act of 1977, 30 U.S.C. (Supp. I) 1270;

Deepwater Port Act of 1974, 33 U.S.C. 1515.

exclusive basis for private suits under the Act. The

court stated that the citizen suit provision is designed

to permit non-injured parties to sue as “private at-

torneys general’ to enforce the provisions of the Act

without meeting the $10,000 jurisdictional amount re-

quirement, Thus, the court concluded, the citizen suit

provision has no application to a suit by a private

party who is injured by the alleged violation; the

savings clause preserves his right to sue without re-

gard to the limitations of the section (Pet. App. 8a-

9a). Applying the analysis of Cort v. Ash, supra,

the court of appeals found that the Clean Water Act

created an implied private right of action for persons

injured by violations of the Act (Pet. App. 1la-15a).

In our view, this conclusion is erroneous.

The standards for determining when a private

right of action should be implied under a statute are

well established; it is basically a matter of statutory

construction. Transamerica Mortgage Advisors, Inc.

v. Lewis, 444 U.S. 11, 15 (1979); Touche Ross & Co.

v. Redington, 442 U.S. 560, 568 (1979); Cannon v.

University of Chicago, 441 U.S. 677, 688 (1979).

This Court has identified four factors as being rele-

vant to this determination because they are indica-

tive of legislative intent. Cannon vy. University of

Chicago, supra, 441 U.S. at 688; Cort v. Ash, supra,

422 U.S. at 78. Briefly, those factors are (1) whether

the plaintiffs come within the class of persons for

whose especial benefit the statute was enacted; (2)

whether there is any express or implicit indication

of congressional intent to create or deny such a

cause of action; (8) whether the existence of or right

to bring such an action would be consistent with the

purposes of the legislative scheme; and ( 4) whether

the cause of action involves a matter traditionally

relegated to state law, in an area basically of con-

cern to the States, so that it would be inappropriate

to infer a federal cause of action. Because “[t]he

central inquiry remains whether Congress intended

to create, either expressly or by implication, a pri-

vate cause of action,” however, the four Cort factors

are not of equal significance. Touche Ross & Co. v.

Redington, supra, 442 U.S. at 575. Where the con-

gressional intent not to create a private right of

action is clear, it is of no relevance whether such an

action might be deemed a useful adjunct to the legis-

lative scheme or whether or not the subject matter

of the statute is traditionally a state concern. See

Transamerica Mortgage Advisors, Inc. v. Lewis,

supra, 444 U.S. at 15-16; Touche Ross & Co. v. Red-

ington, supra, 442 U.S. at 575-576, 578. In our view,

the court of appeals misapplied these principles by

failing to recognize Congress’ manifest intent to limit

the private right of action created by the Clean Water

Act and MPRSA.

A. The Clean Water Act And The MPRSA Draw No

Distinction Between Plaintiffs Based On The Type

Of Injury Alleged

The starting point of the analysis must be the

statutory scheme itself. See Touche Ross & Co. v.

Redington, supra, 442 U.S. at 568. The very exist-

ence of the detailed citizen suit provision belies the

notion that another right of action should be implied

under the statutes. As this Court has remarked,

“where a statute expressly provides a particular rem-

edy or remedies, a court must be chary of reading

others into it.” Transamerica Mortgage Advisors,

Inc. v. Lewis, supra, 444 U.S. at 19; see also Na-

tional Railroad Passenger Corp. v. National Asso-

ciation of Railroad Passengers, 414 U.S. 458, 458

(1974). In this case, not only do the statutes ex-

pressly provide a remedy, but that remedy is one ex-

clusively designed for private parties and subject to

carefully articulated limitations. It strains credulity

to imagine that Congress expressly established a pri-

vate right of action subject to restrictions, while “ ‘ab-

sentmindedly [forgetting] to mention’” the creation

of a second private right of action free from those

restrictions. See Transamerica Mortgage Advisors,

Inc. v. Lewis, supra, 444 U.S. at 20. Surely, Con-

gress’ failure to make an explicit reference to this

second right of action suggests that it had no intent

to create it.

The court of appeals failed to draw this obvious

inference from the express provision of a private

remedy because it felt that the citizen suit provisions

in no way concern the rights of persons actually in-

jured by violations of the statutes (Pet. App. 8a).

But the language and legislative history of these

statutes provide no support for the distinction drawn

by the court of appeals, i.e., that the citizen suit pro-

visions were designed to apply exclusively to suits by

non-injured “private attorneys general,” while per-

sons actually injured could invoke an implied right

of action. Indeed, the legislative history of the Clean

Water Act provides strong evidence to the contrary.

As the court of appeals pointed out (Pet. App. 6a-

8a), the definition of “citizen” in 33 U.S.C. 1365(g)°

was intended to incorporate this Court’s interpreta-

tion of Section 10 of the Administrative Procedure

Act, 5 U.S.C. 702, in Sierra Club v. Morton, 405 U.S.

727 (1972). See S. Conf. Rep. No. 92-1236, 92d

Cong., 2d Sess. 146 (1972). Thus, a suit by persons

° A “citizen” is defined for the purpose of a citizen suit as

“a person or persons having an interest which is or may be

adversely affected.” 83 U.S.C. 1365 (g).

who suffer non-economic injury is permitted under

the citizen suit provision. But, contrary to the find-

ing of the court of appeals, the citizen suit provision

is not restricted solely to these types of suits.‘ The

inclusion of the Sierra Club standard in the Act rep-

resented an extension of the narrower citizen suit

provision contained in the House bill. That provision

had included a requirement that a person’s “direct

interest” be affected in order to be eligible to sue,’

and therefore it had been criticized as limiting the

availability of the citizen suit provision to “persons

owning property which is directly affected by the

pollution.” H.R. Rep. No. 92-911, 92d Cong., 2d Sess.

407-409 (1972), reprinted in 1 Legislative History of

the Federal Water Pollution Control Act Amendments

of 1972, 98d Cong., 1st Sess. 876-878 (Comm. Print

1973) (hereinafter “Leg. Hist.”) (additional views

of Reps. Abzug and Rangel). See also id. at 417,

1 Leg. Hist. 886.

7The court of appeals stated that the citizen suit provi-

sions apply only to “non-injured” members of the public

(Pet. App. 8a). It is clear, however, that Congress consid-

ered any person eligible to sue under the Sierra Club test as

being “injured.” See, e.g., 1 Legislative History of the Fed-

eral Water Pollution Control Act Amendments of 1972, 93d

Cong., Ist Sess. 179 (Comm. Print 1973). The distinction

drawn by the court of appeals thus seems to be between eco-

nomic and non-economic injury.

8 Section 505(g) of the House bill provided:

For the purposes of this section the term “citizen”

means (1) a citizen (A) of the geographic area and

(B) having a direct interest which is or may be affected,

and (2) any group of persons which has been actively

engaged in the administrative process and has thereby

shown a special interest in the geographic area in

controversy.

H.R. 11896, 92d Cong., 2d Sess. (1972), 1 Leg. Hist. 1077.

In sum, the provision as enacted did not create a

special rule for non-economic injury. On the con-

trary, it equated economic injury, which had been

covered even under the House version, with non-

economic injury for the purposes of citizen suits. As

Senator Muskie, who was perhaps the primary author

of the Clean Water Act (see EZ. I. du Pont de Nemours

& Co. v. Train, supra, 430 U.S. at 129), stated in his

explanation of the Conference Report, “a citizen suit

may be brought only by those persons or groups which

are among those whose interest (whether environ-

mental or economic) is or may be injured by the

violation of the Act which is the basis for the suit.”

1 Leg. Hist. 179. Although, as Senator Muskie

stated, “a noneconomic interest in the environment, in

clean water, is a sufficient base for a citizen suit,”

1 Leg. Hist. 221, Congress clearly intended that an

economic interest as well could give rise to a citizen

suit under 33 U.S.C. 1365.

B. Congress Had No Intent To Create A Private Rem-

edy Under These Statutes Other Than That Speci-

fied In the Citizen Suit Provisions

According to the court of appeals, the independent

remedy for persons economically injured by violations

of the pollution statutes is provided by the savings

clauses, 33 U.S.C. 1865(e), 33 U.S.C. 1415(g) (5)

(Pet. App. 9a). Although the clauses do refer to

saving a right to sue under “any statute,” the court’s

interpretation defies common sense. A savings clause

does not create new remedies; it preserves ones that

are already in existence. It is a distortion of the

concept of a savings clause to Say that a statute

“saves” a remedy that is being created—especially

implicitly—by the very same statute. Thus, it seems

clear that in enacting the savings clauses of the

Clean Water Act and MPRSA, Congress was focus-

ing on preexisting remedies under other statutes and

the common law, not intimating that another private

remedy should be created by implication under these

statutes.

This conclusion is supported by the legislative his-

tory of the statutes. The Committee Reports for both

the Clean Water Act and the MPRSA, in discussing

the savings clause, describe it as preserving rights

“under any other law.” S. Rep. No. 92-414, 92d

Cong., Ist Sess. 81 (1971); S. Rep. No. 92-451, 92d

Cong., 1st Sess. 23-24 (1971); H.R. Rep. No. 92-361,

92d Cong., 1st Sess. 23 (1971) (emphasis added).

The court of appeals stated that it was “not per-

suaded that this paraphrase of the wording of the

Act was intended to preclude the finding of a pri-

vate remedy under the Act” (Pet. App. 14a). Un-

doubtedly, the court is correct in its view that the

paraphrase in the legislative history was not intended

to preclude the finding of a private remedy, but the

consistent use of the word “other” in paraphrasing

provides strong support for the common sense con-

clusion that Congress was focusing on rights under

other laws in enacting the savings clause. Indeed, it

is quite likely that Congress never even considered

the possibility that another private right of action

would be implied under the Clean Water Act and the

MPRSA themselves, much less specifically intended

to create such a remedy.

Moreover, the legislative history of the relevant

statutes demonstrates Congress’ intent that the citi-

zen suit provisions be the exclusive vehicle for a pri-

vate right of action. Because the citizen suit pro-

visions involved here are closely modeled on those of

the Clean Air Act (see S. Rep. No. 92-414, supra, at

79), the legislative history of the Clean Water Act

and the MPRSA generally focus only on the differ-

ences between their provisions and those of the proto-

type. To understand the general principles underly-

ing these citizen suit provisions, it is necessary to

turn to the legislative history of the Clean Air Act

itself.

The legislative history of the Clean Air Act clearly

indicates that private rights of action under the Act

were limited to those authorized by the citizen suit

provision. The Senate Report noted that citizen

actions would be “carefully restricted to actions

where violations of standards and regulations or a

failure on the part of officials to act are alleged.”

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 36 (1970).

Accordingly, the Report concluded that inconsistent

enforcement would not be engendered by citizen suits

because the standard to be met would already have

been established in the agency proceeding, and there-

fore the issue before the court would simply be “a

factual one of whether there had been compliance.”

Id. at 38. In addition, the Report made it clear that

there was no “provision for the recovery of property

or personal damages.” Jbid.

Despite these limitations, there was some concern

expressed on the floor of the Senate over the possi-

bility that the passage of the Clean Air Act Amend-

ments would lead to a flood of private lawsuits that

would increase the burden on the federal courts. In

response, Senator Muskie explained the limited scope

of the citizen suit provision contained in S. 4858,

which was ultimately enacted as part of the Clean

Air Act, by comparing it to a broader citizen suit

provision that had been contained in &. 3201, an

earlier version of the bill:

Senate bill 3201 * * * is a class action bill. S.

4358 is not. S. 4358 is limited to citizens acting

on their own behalf.

Senate bill 3201 provides damages and a

remedy for recovery of fines and restitution,

and other monetary damages. The pending bill

is limited to seek abatement of violation of

standards established administratively under the

act, and expressly excludes damage actions.

Senate bill 3201 provides for redress of con-

sumer injury. The pending bill is limited to an

action for enforcement on abatement of violations

of administratively set standards.

116 Cong. Rec. 33102 (1970).

Later in this discussion, Senator Hart also responded

to these concerns by emphasizing that the bill did not

permit a private suit for damages:

It has been argued, however, that conferring

additional rights on the citizen may burden the

courts unduly. I would argue that the citizen

suit provision of S. 4858 has been carefully

drafted to prevent this consequence from arising.

First of all, it should be noted that the bill makes

no provision for damages to the individual. It

therefore provides no incentives to suit other

than to protect the health and welfare of those

suing and others similarly situated.

116 Cong. Rec. 388104 (1970).

Thus, there can be no doubt that Congress spe-

cifically intended that a suit such as that brought

by the plaintiffs in this case, seeking redress for al-

leged consumer injury through damages and other

relief not authorized by the citizen suit provision,

could not be maintained under the Clean Air Act.

Nothing in the language or the legislative history of

the Clean Water Act or the MPRSA suggests that

Congress intended to work such a major alteration

in this scheme of citizen participation in enforce-

ment—a scheme that to all appearances was super-

imposed without significant change upon the water

pollution statutes—as authorizing private parties to

sue for damages for injuries caused by statutory vio-

lations. And it is almost inconceivable that Congress

would effect such a major change by implication, only

two years after deliberately refraining from permit-

ting such suits because of a recognized danger of

increasing the burden of the courts.

Moreover, the legislative history of the Clean Water

Act buttresses the conclusion that, as under the Clean

Air Act, no private right of action exists apart from

the citizen suit provision. The Senate Report notes

that “[a]s in [the Clean Air] Act, the provision in

this bill is carefully restricted to actions where viola-

tions of standards and regulations or a failure on

the part of officials to act are alleged.” S. Rep. No.

92-414, supra, at 79. As under the Clean Air Act,

the only issue before the court in a citizen suit would

be whether a polluter has complied with an adminis-

tratively set standard. Id. at 80. With respect to the

one modification made in the nature of the remedies

available, the addition of civil penalties, the Report

specifically noted that “any penalties imposed would

be deposited as miscellaneous receipts and not be

recovered by the complainant.” Jd. at 79. There was

no provision in the Act for the recovery of damages,

but, under the savings clause, “if damages could be

shown, other remedies would remain available.” Jd.

at 81.

C. Application Of the Cort Factors Also Suggests

That No Private Right Of Action Should Be Implied

In light of the clear legislative intent not to create

a private right of action apart from the citizen suit

provisions, as evidenced by the statutes themselves

and the pertinent legislative history, there is no need

to consider the other Cort factors. See Travs-

america Mortgage Advisors, Inc. v. Lewis, supra, 444

U.S. at 15-16; Touche Ross & Co. v. Redington, supra,

442 U.S. at 575-576, 578. In any event, an examina-

tion of those factors supports the conclusion that the

court of appeals erred in implying a private cause of

action.

The court of appeals found, without discussion,

that “individuals likely to suffer actual injury by the

pollution” was the class for whose especial benefit the

Clean Water Act was enacted (Pet. App. 13a). This

statement apparently refers to economic injury. See

note 7, supra. It would appear, however, that the

Clean Water Act and the MPRSA were enacted to

protect a much broader class of persons than those

who derive their livelihood from the water. The ob-

jective of the Clean Water Act is “to restore and

maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters” toward the goal of

providing “for the protection and propagation of fish,

shellfish, and wildlife” and “recreation in and on the

water.” 33 U.S.C. 1251(a). The policy of the MPRSA

is “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, ecological systems, or economic potenti-

alities.” 33 U.S.C. 1401(b). Both statutes certainly

recognize that one of the benefits and goals of im-

proved water quality is the protection of fish and

that the failure to protect fish can have adverse eco-

nomic consequences on individuals. See 33 U.S.C.

(Supp. I) 1364(a) ; 33 U.S.C. 1412(a) (C). But the

Statutes exhibit a much broader purpose than simply

protecting the livelihood of fishermen. Congress

clearly was also concerned with non-economic issues,

such as alleviating dangers to human health, wildlife,

beaches and ecological systems generally, as well as

with preserving esthetic and recreational values. See,

e.9., 33 U.S.C. (& Supp. I) 1814(a) ; 33 U.S.C. 1412

(a). Under the MPRSA, the legislative history indi-

cates Congress’ particular concern over the long-term

dangers of deterioration of ocean waters and the ma-

rine ecosystem. See S. Rep. No. 92-451, supra, at

9-13. Under these circumstances, the Clean Water

Act and the MPRSA are best described as statutes

enacted for the benefit of the general public. See

Cannon v. University of Chicago, supra, 441 U.S. at

690. The fact that the plaintiffs derive a more direct

economic benefit from these statutes than most mem-

bers of the general public does not militate in favor

of implying a private right of action in their favor

under the first Cort factor.

With respect to the third Cort factor, the court

of appeals simply found that implication of a second

private right of action would be “helpful” to the

purposes of tne Clean Water Act (Pet. App. 15a).

Of course, the institution of any lawsuit based on

the violation of a statute will be of some assistance in

enforcing the statute. To that extent, the plaintiffs’

action furthers the purposes of the underlying stat-

utes here. However, if this benefit is sufficient to

justify the implication of a private right of action

under a statute, such causes of action would be im-

plied under all statutes. Clearly, a more searching

inquiry into the purposes of the statute is necessary.

In this case, the statutory schemes and the legislative

history indicate that the private right of action im-

plied by the court of appeals is at odds with the pur-

poses of the Clean Water Act and the MPRSA.

First, the primary responsibility for enforcement

of the Clean Water Act and the MPRSA rests with

the government. Citizen suits have been established

as a supplement to government enforcement, but Con-

gress restricted these private suits so as not to in-

terfere with that enforcement. Because of this def-

erence to the agency, citizen suits may not be brought

if agency enforcement proceedings under the statute

are pending. See 33 U.S.C. 1865(b)(1)(B); 33

U.S.C. 1415(g) (2). The 60-day notice provision (33

U.S.C. 1365(b) ; 33 U.S.C. 1415(g) (2) (A)), which

gives the agency an opportunity to institute adminis-

trative or judicial proceedings before a citizen suit

is filed, was included specifically “to further encour-

age and provide for agency enforcement.” S. Rep.

No. 92-414, supra, at 79. A private right of action

for statutory violations that is free from the restric-

tions of the citizen suit provisions would disrupt this

preference for agency enforcement. It would permit

private lawsuits to go forward before the agency has

had an opportunity to decide if judicial enforcement

is advisable, and it could allow for duplicative law-

suits where an agency enforcement action is insti-

tited.

Second, Congress clearly intended to restrict pri-

vate suits alleging violations of these statutes to the

issue of enforcement of standards and regulations

already established through the administrative proc-

ess. Thus, a citizen suit, as contemplated by Con-

gress, does not require the reevaluation of technical

data at the enforcement stage; “[t]hese matters will

have been settled in the administrative procedure

leading to the establishment” of an effluent limita-

tion. S. Rep. No. 92-414, supra, at 79. However, un-

der the court of appeals’ decision; private suits may

be brought that challenge already settled agency ac-

tion, such as the effluent standards involved in this

case. Such suits would seriously infringe on the re-

sponsibilities and role of the agency as delineated by

Congress, because the technical questions of proper

effluent limitations under the statute would be before

the courts although they had already been decided

administratively.’ See generally S. Rep. No. 92-414,

supra, at 80-81."

This is not a case where Congress has been silent

concerning the interaction between private and

agency enforcement. Congress carefully considered

the possible tension between the two types of enforce-

ment, and it limited the availability of private suits

based on statutory violations so as to preserve the

agency role contemplated by the pollution control

statutes. Elimination of those limitations for certain

classes of private suits would seriously undermine

the statutory scheme.

® These administrative determinations are, of course, sub-

ject to judicial review at the time they are made. See 33

U.S.C. 1369.

0'We do not suggest, of course, that a challenge to a dis-

charge of pollutants is prohibited simply because a permit has

been issued for that discharge through the agency process. A

discharge may still be subject to challenge because it violates

standards established by state statute or by the common

law, either state or federal. See 33 U.S.C. 1365(e); 33

U.S.C. 1415(g) (5). But no private action may be brought

under the Clean Water Act or the MPRSA, claiming a viola-

tion of those statutes, against a discharger who is complying

with a properly issued permit.

The fourth Cort factor is somewhat equivocal and

sheds no light on the issue. The condition of the

navigable waters of the United States is an area of

important federal concern, but water pollution and

private actions seeking relief from it are areas that

traditionally have been the concern of state law as

well. In sum, analysis of the Cort factors clearly in-

dicates that no private right of action should be im-

plied under the Clean Water Act or the MPRSA.

The only court of appeals to consider the question

is in accord with this conclusion. The Seventh Cir-

cuit, applying the Cort factors, has concluded that

no private right of action can be implied under the

Clean Water Act. City of Evansville v. Kentucky

Liquid Recycling, Inc., 604 F.2d 1008, 1012-1016

(1979), cert. denied, 444 U.S. 1025 (1980). That

court, although not focusing on the question of an

implied remedy, has also held that the 60-day notice

requirement is a bar to any private suit under the

Clean Air Act. City of Highland Park v. Train, 519

F.2d 681 (7th Cir. 1975) .*

11The two cases on which the court of appeals relied,

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

79 (2d Cir. 1975), and Natural Resources Defense Council V.

Train, 510 F.2d 692 (D.C. Cir. 1974}, did not consider the

question of an implied private right of action. Those cases

held that the citizen suit provision was not the exclusive

jurisdictional basis for suits under the Clean Water Act; the

savings clause preserved the right to invoke jurisdiction

under 28 U.S.C. 1331. This conclusion is correct, but 28

U.S.C. 1831 can be invoked only if the plaintiff has a cause

of action “arising under federal law.” A private party has

no cause of action “arising under” the Clean Water Act or

MPRSA except as provided in and limited by the citizen suit

provisions.

Because Congress did not intend to permit such

suits, the bulk of the plaintiffs’ statutory claims,

notably those seeking damages and those challenging

properly issued permits, were correctly dismissed by

the district court for failure to state a claim. Some

portions of the complaint, notably those seeking en-

forcement of existing permits, advance claims that

are maintainable under the citizen suit provisions of

the Clean Water Act and the MPRSA. These claims

are subject to the restrictions of those provisions,

however, and they were correctly dismissed by the

district court because of the plaintiffs’ failure to com-

ply with those restrictions.

II. A PRIVATE PARTY HAS STANDING TO BRING

AN ACTION FOR DAMAGES UNDER THE FED-

ERAL COMMON LAW OF NUISANCE

This case also presents the question of the correct-

ness of the court of appeals’ holding (Pet. App. 20a-

24a) that private parties may bring an action in

federal court based on a violation of the federal

common law of nuisance. As we explained in our

brief in response to the petitions in Nos. 79-1711,

79-1754 and 79-1760, the resolution of this issue is

of limited direct concern to the federal petitioners

in this case because of other issues not passed upon

by the court of appeals and not presented here. That

is so because, in discussing the plaintiffs’ common law

claim, the court of appeals focused on its nature as

a suit for damages, and sovereign immunity precludes

such relief against the federal government.? More-

The court of appeals did not rule on the sovereign im-

munity question because the parties had not addressed the

question (Pet. App. 28a). The First Circuit, however, has

held that sovereign immunity does insulate the federal gov-

over, with respect to the injunctive relief sought by

the plaintiffs, the complaint does not make out a

prima facie case of nuisance against the federal pe-

titioners based upon their administration of federal

permit programs.” A public nuisance under common

law may be created by a discharge of pollutants into

public waters, but, clearly, a federal agency is not

guilty of creating a public nuisance simply because,

in the course of its administration of a regulatory

program, it does not prohibit a discharge by a pri-

vate party or issues a permit concerning such a

discharge. However, because of the government’s

strong interest in preserving the quality of our Na-

tion’s waters, we are addressing this question, which

bears on the remedies available to one who suffers

from such pollution.

In Illinois v. City of Milwaukee, 406 U.S. 91

(1972), this Court held that the State of Illinois had

a cause of action for injunctive relief under the fed-

eral common law of nuisance to abate pollution of

Lake Michigan by the City of Milwaukee. Relying

on a long line of eases, this Court stated that “[w]hen

we deal with air and water in their ambient or in-

terstate aspects, there is a federal common law.” Id.

at 103. The court of appeals below rejected the con-

tention that this common law remedy could be in-

ernment from a damage action under the federal common law

of nuisance. Commonwealth of Massachusetts v. United States

Veterans Administration, 541 F.2d 119, 123 (1976). See

generally United States v. Mitchell, 445 U.S. 535, 538 (1980) ;

United States v. Testan, 424 U.S. 392, 399 (1976).

18 The plaintiffs’ allegations that they are being harmed by

waste dumped by the Army Corps of Engineers might make

out a prima facie nuisance claim to the extent it is not barred

by sovereign immunity.

voked only when the plaintiff is a state, as in Illinois

v. City of Milwaukee itself. In our view, the court

of appeals correctly concluded that private parties

do have standing to bring an action under the federal

common law of nuisance in appropriate cases.

This Court explained in Illinois v. City of Mil-

waukee, supra, that a federal common law of nuisance

remedy to abate pollution is necessary partly because

of the nature of our federal system. Each state is

entitled to protect its quasi-sovereign interest in un-

polluted air and water. Because the states surren-

dered their diplomatic powers when they entered the

Union, a federal judicial remedy is necessary for the

resolution of interstate pollution disputes that in-

fringe on the sovereignty of a staté. 406 U.S. at

104-107. For this reason, a federal common law

remedy was clearly appropriate where the State of

Illinois was the plaintiff.

The Court explicitly noted, however, that “it is

not only the character of the parties that requires

us to apply federal law.” 406 U.S. at 105 n.6.

“[W]here there is an overriding federal interest in

the need for a uniform rule of decision or where the

controversy touches basic interests of federalism,” it

is appropriate to apply federal common law. Ibid.

See also Banco Nacional de Cuba y. Sabbatino, 376

U.S. 398, 426-427 (1964); Clearfield Trust Co. v.

United States, 318 U.S. 363 (1948). Resolution of

disputes over interstate water has long been con-

sidered to implicate such an overriding federal in-

terest. See, e.g., Hinderlider v. La Plata River &

Cherry Creek Ditch Co., 304 U.S. 92, 110-111 (1938) ;

Kansas v. Colorado, 206 U.S. 46, 98 (1907). And

the need for application of federal law extends to

disputes over pollution of interstate waters. See Ver-

mont v. New York, 417 U.S. 270, 275 n.5 (1974);

New Jersey v. City of New York, 288 U.S. 4738, 481-

482 (1931); New York v. New Jersey, 256 U.S. 296,

301-303, 312-313 (1921); Woods & Reed, The Su-

preme Court and Interstate Environmental Quality:

Some Notes on the Wyandotte Case, 12 Ariz. L. Rev.

691, 711-714 (1970). See also Georgia v. Tennessee

Copper Co., 206 U.S. 230 (1907) (air pollution). In

light of these principles, this Court concluded that

the need for application of federal law was “[c]er-

tainly * * * present” in an action concerning pollu-

tion of an interstate body of water such as Lake

Michigan. Illinois v. City of Milwaukee, supra, 406

U.S. at 105 n.6.

In this case, the court of appeals specifically found

that the plaintiffs have “sufficiently alleged pollution

of interstate waters” (Pet. App. 22a) to require the

application of federal standards because of the “clear

and overriding federal interest in uniformity” (id.

at 21a). As in Illinois v. City of Milwaukee, supra,

the elements are present here that require an applica-

tion of federal law. The overriding federal interest

in the quality of interstate waters has long been

recognized and is emphasized by the congressional

enactment of the Clean Water Act and other envi-

ronmental protection statutes. See Jllinois v. City of

The complaint alleged damage “a few miles offshore”

(J.A. 25a), and the court of appeals apparently treated this

allegation as one encompassing the “territorial sea,” in which

the states have important property interests. The “terri-

torial sea” extends three miles beyond the low-water line

along the coast. Convention on the Territorial Sea and the

Contiguous Zone, 15 U.S.T. 1606, 1608, T.I.A.S. No. 5639

(1964). See United States v. California, 3832 U.S. 19, 33-34

(1947). In addition, pollutants discharged in the State of

New York traveled down the Hudson River into New Jersey

waters. The municipal petitioners have not challenged the

court’s finding of interstate pollution.

Milwaukee, supra, 406 U.S. at 101-103. Moreover,

application of state law could lead to inconsistent

results, depending on the source of the pollution, and

could force one state to be bound by the “more de-

grading standards” of another. Jd. at 107. Federal

law should apply here, as the court of appeals con-

cluded, because “the interstate nature of [the] con-

troversy makes it inappropriate that the law of ei-

ther state should govern.” Friendly, In Praise of

Erie—And of the New Federal Common Law, 39

N.Y.U. L. Rev. 383, 408 n.119 (1964).

In addition to the interstate aspects of this case,

the allegation that discharges within the States of

New York and New Jersey have caused pollution

damage in the ocean waters surely implicates an im-

portant federal interest. This federal interest in

areas beyond the territorial sea, and particularly in

fishery resources, is apparent from the existence of

several statutes in addition to the Clean Water Act

and MPRSA. See, e.g., 33 U.S.C. 1411; 33 U.S.C.

(Supp. I) 1321(b); Fishery Conservation and Man-

agement Act of 1976, 16 U.S.C. 1801 et seg.; Outer

Continental Shelf Lands Act, 43 U.S.C. 1331 et seg.

Thus, there can be little doubt that a federal stand-

ard must be applied to the plaintiffs’ common law

claim; the question raised here is whether, in spite

of the existence of an overriding federal interest, a

private party lacks standing to raise such a claim.”

'* This case is therefore quite different from those cases

where this Court has failed to find a right of action under

federal law on behalf of a private party where no overriding

federal interest was implicated. See Bank of America Vv.

Parnell, 352 U.S. 29, 33-34 (1956); Willamette Iron Bridge

Co. v. Hatch, 125 U.S. 1, 16-17 (1888).

The right to invoke the federal common law of

nuisance is not the exclusive province of individual

states. Certainly, the United States can also sue in

federal court to abate pollution in the navigable

waters. In Jn re Debs, 158 U.S. 564, 580-587 (1895),

this Court upheld the government’s right, in the ab-

sence of a statute, to sue to enjoin an obstruction

to interstate commerce (the Pullman strike) on the

theory that it was a public nuisance in an area of

federal concern. The Court noted that “a public nui-

sance has always been held subject to abatement at

the instance of the government.” Jd. at 587. The

same rule must extend to a nuisance on the Nation’s

waters, in light of the United States’ “sovereign

power * * * to control the navigable waters within its

jurisdiction.” Sanitary District v. United States, 266

U.S. 405, 425 (1925). See also Kaiser Aetna v.

United States, 444 U.S. 164, 173, 177 (1979) ; United

States v. Appalachian Electric Power Co., 311 U.S.

377, 426 (1940). It can make no difference that the

nuisance is pollution rather than an obstruction that

interferes with navigability. Accordingly, the lower

courts have uniformly recognized the existence of

this right of action and have permitted the United

States to sue under the federal common law of nui-

sance. See Illinois v. Outboard Marine Corp., 619

F.2d 623 (7th Cir. 1980), petition for cert. pending,

No. 80-126 (filed July 28, 1980); United States v.

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

cert. denied, 420 U.S. 927 (1975); United States v.

Atlantic-Richfield Co., 478 F. Supp. 1215, 1218-1220

(D. Mont. 1979) ; United States v. Ira S. Bushey &

Sons, 346 F. Supp. 145, 149-150 (D. Vt. 1972), 368

F’. Supp. 110, 120 (D. Vt.), aff'd, 487 F.2d 1393 (2d

Cir. 1973) (Table), cert. denied, 417 U.S. 976

(1974) ; United States ex rel. Scott v. United States

Steel Corp., 356 F. Supp. 556, 558 (N.D. Ill. 1978) ;

cf. Reserve Mining Co. v. EPA, 514 F.2d 492, 520-

521 (8th Cir. 1975) (federal common law of nuisance

claim rejected because of lack of interstate effect).

Where a federal body of law already exists for

suits brought by a state or the United States, there

is no reason to deny to a private party the right to

invoke that law in a case where important federal

interests are at stake.’* This Court has not previ-

ously had occasion to consider a suit by a private

party under the federal common law of nuisance,

but it has permitted a suit by a private party under

the closely related body of federal common law re-

lating to apportionment of waters. In Hinderlider

v. La Plata River & Cherry Creek Ditch Co., supra,

this Court granted certiorari in a case brought by

a Colorado corporation against Colorado state water-

way officials challenging the diversion of the waters

of the La Plata River to the detriment of the plain-

tiff. The Court held that it had jurisdiction because

questions concerning the apportionment of interstate

Streams are ones of “federal common law.” 304 U.S.

at 110. The Court concluded that “[j]urisdiction

over controversies concerning rights in interstate

Streams is not different from those concerning boun-

daries. These have been recognized as presenting

federal questions * * * in suits between private liti-

gants.” Jd. at 110-111. See generally Hill, The Law-

Making Power of the Federal Courts: Constitutional

Preemption, 67 Colum. L. Rev. 1024, 1030-1032

16 Certainly, the federal statutory scheme explicitly recog-

nizes the strong interest that individuals have in controlling

water pollution. See 33 U.S.C. 1251 (a) (1), (2); 38 U.S.C.

1401(a), (b).

(1967). Thus, there is generally no bar to a suit by

a private party under federal common law, provided

that the suit involves the overriding federal interest

that led to the creation of the federal common law,

such as the water quality of an interstate stream.”

The lower courts generally have agreed that the

federal common law of nuisance action discussed in

Illinois v. City of Milwaukee, supra, is not restricted

to suits by a sovereign state or the United States.

Two courts have held that a municipality or munici-

pal corporation is entitled to bring such a suit. City

of Evansville v. Kentucky Liquid Recycling, Inc.,

supra, 604 F.2d at 1017-1019; Township of Long

Beach v. City of New York, 445 F. Supp. 1203, 1214

(D.N.J. 1978). And one district court has held this

right available to purely private parties. Byram

River v. Village of Port Chester, 394 F. Supp. 618,

622 (S.D.N.Y. 1975). See also Committee for Con-

sideration of Jones Falls Sewage System v. Train,

539 F.2d 1006, 1014-1016 (4th Cir. 1976) (Butzner,

J., dissenting). But see Committee for Consideration

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

1148, 1153-1154 (D. Md. 1974), aff’d on different.

but not inconsistent: grounds, 5389 F.2d 1006 (4th

Cir. 1976); cf. Parsell v. Shell Owl Co., 421 F. Supp.

1275, 1281 (D. Conn. 1976), aff’d, 573 F.2d 1289

(2d Cir. 1977) (Table). In addition, Congress has

17 This Court has also indicated that private parties may,

“in appropriate situations,” invoke the federal common law

concerning government paper. See Bank of America Vv.

Parnell, 352 U.S. 29, 34 (1956) (“We do not mean to imply

that litigation with respect to Government paper necessarily

precludes the presence of a federal interest, to be governed

by federal law, in all situations merely because it is a suit

between private parties.’’).

indicated its understanding that nuisance suits by

private parties under the federal common law are

permitted. The Comprehensive Environmental Re-

sponse, Compensation and Liability Act of 1980 (or

“Superfund”), H.R. 7020, 96th Cong., 2d Sess.,

passed by the Senate on November 24, 1980, and by

the House of Representatives on December 3, 1980,"

establishes a fund to pay for the cleanup of hazard-

ous wastes. The legislation explicitly refers to the

rights of individuals to recover damages and cleanup

costs under the common law, state and federal.’

The right of a private party to sue under the fed-

eral common law of nuisance, of course, is more

circumscribed than that of a state or the United

States. First, federal law will only be applied where

there is an overriding federal interest. There may

be cases, involving pollution within a state, where a

nuisance action under state law may be adequate to

vindicate the interest of a private plaintiff, although

application of federal common law might be appro-

priate if suit were brought by the United States.

Second, the right of a private party to sue for public

nuisance has always been limited by the common

law. Originally, the establishment of a public nui-

Sance was a criminal offense and thus abatement of

18 See 126 Cong. Rec. 815009 (daily ed. Nov. 24, 1980) ;

126 Cong. Rec. H11803 (daily ed. Dec. 3, 1980).

19 Section 107(j) provides: “Recovery by any person * * *

for response costs or damages * * * shall be pursuant to

existing law * * *. Nothing in this paragraph shail affect or

modify in any way the obligations or liability of any person

under any other provision of State or Federal law, including

common law, for damages, injury, or loss resulting from a

release of any hazardous substance.” See 126 Cong. Rec.

S14954 (daily ed. Nov. 24, 1980).

a nuisance was purely the concern of the state. See

Restatement (Second) of Torts § 821B, Comment a

(1979). Later, a private tort action developed, but

the common law has always limited that tort action

to cases where the plaintiff suffers an injury “dif-

ferent in kind” from the general public, such as

pecuniary loss. See Restatement (Second) of Torts,

supra, §821C; W. Prosser, Law of Torts 586-591,

604 (4th ed. 1971).

In this case, neither of these limitations bars the

plaintiffs’ suit. The subject matter is the pollution

of interstate waters and ocean waters, an area of

overriding federal concern. The plaintiffs have al-

leged damage that is clearly different in kind from

that of the general public—economic loss of their

clamming business caused by the pollution.” Under

these circumstances, the plaintiffs have established a

cause of action under the federal common law of

nuisance.

Ill. THE CLEAN WATER ACT AND THE MPRSA DO

NOT PREEMPT THE FEDERAL COMMON LAW

OF NUISANCE

Whether the federal common law of ruisance has

been preempted by legislation is basically a question

of legislative intent. We have argued in our brief in

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

No. 79-408 (argued Dec. 2, 1980), that the passage

of the Clean Water Act did not preempt the federal

20 Indeed, the case of a commercial fisherman whose busi-

ness is damaged by water pollution is one of the classic

examples of an injury that is different in kind and gives

rise to a private action for public nuisance. See W. Prosser,

supra, at 590-591; Restatement (Second) of Torts, supra,

§ 821C, Comment h, Illustration 11; Union Oil Co. v. Oppen,

501 F.2d 558, 568 (9th Cir. 1974).

common law of nuisance, and we rely on that brief

here. The plain language of the savings clause of the

Clean Water Act, 33 U.S.C. 1365(e), indicates Con-

gress’ intent to preserve all common law remedies,

and the legislative history makes clear that Congress

understood that the federal common law would be

~reserved as well.”

The savings clause of the MPRSA, 33 U.S.C. 1415

(g) (5), is quite similar to that of the Clean Water

Act. By its terms, it preserves all other causes of

action, including those under the common law. The

legislative history reveals no intent by Congress to

eliminate the federal common law of nuisance or any

other preexisting remedy. It seems plain that Con-

gress did not intend to preempt the federal common

law of nuisance in enacting the MPRSA. Nor does

the existence of a common law remedy conflict with

the purposes of the MPRSA. The standards of the

MPRSA will, of course, be highly relevant in deter-

mining whether a nuisance exists. But, as under the

Clean Water Act, the common law remedy may sup-

plement the MPRSA by dealing with problems not

covered by the Act and by providing a remedy for

damages, which is not provided under the MPRSA.

Thus, the MPRSA does not preempt the federal com-

mon law of nuisance.

*1In addition to the legislative history discussed in our

brief in City of Milwaukee v. People of the State of IIli-

nots, supra, we note that Congressman Dingell, one of

the co-sponsors of the Clean Water Act in the House, spe-

cifically referred to the availability of suits under the federal

common law of nuisance, citing H.R. Rep. No. 92-1401, 92d

Cong., 2d Sess. 31-33 (1972), which discussed two suits

brought under the federal common law of nuisance. See 1

Leg. Hist. 252.

affirmed.

DECEMBER 1980

CONCLUSION

The decision of the court of appeals should be

reversed with respect to the existence of an implied

private right of action under the Clean Water Act

and the MPRSA. The decision with respect to the

federal common law of nuisance claim should be

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

LOuIS F. CLAIBORNE

Deputy Solicitor General

ALAN I. HOROWITZ

Assistant to the Solicitor General

PETER R. STEENLAND, JR.

RAYMOND N. ZAGONE

JACQUES B. GELIN

DAVID T. BUENTE, JR.

Attorneys

APPENDIX

Section 505 of the Clean Water Act, 33 U.S.C.

1365, provides in pertinent part:

Citizen Suits

(a) Authorization; jurisdiction

Except as provided in subsection (b) of this

section, any citizen may commence a civil action

on his own behalf—

(1) against any person (including (i)

the United States, and (ii) any other gov-

ernmental instrumentality or agency to the

extent permitted by the eleventh amendment

to the Constitution) who is alleged to be in

violation of (A) an effluent standard or

limitation under this chapter or (B) an or-

der issued by the Administrator or a State

with respect to such a standard or limitation,

(2) against the Administrator where

there is alleged a failure of the Adminis-

trator to perform any act or duty under this

chapter which is not discretionary with the

Administrator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such

act or duty, as the case may be, and to apply

any appropriate civil penalties under section

1319(d) of this title.

(b) Notice

No action may be commenced—

(1) under subsection (a) (1) of this sec-

tion—

(A) prior to sixty days after the

plaintiff has given notice of the alleged

violation (i) to the Administrator, (ii)

to the State in which the alleged viola-

tion occurs, and (iii) to any alleged vio-

lator of the standard, limitation, or or-

der, or

(B) if the Administrator or State

has commenced and is diligently prose-

cuting a civil or criminal action in a

court of the United States, or a State

to require compliance with the standard,

limitation, or order, but in any such

action in a court of the United States

any citizen may intervene as a matter

of right.

(2) under subsection (a) (2) of this sec-

tion prior to sixty days after the plaintiff

has given notice of such action to the Ad-

ministrator,

except that such action may be brought immedi-

ately after such notification in the case of an

action under this section respecting a violation

of sections 1316 and 1317(a) of this title. No-

tice under this subsection shall be given in such

manner as the Administrator shall prescribe by

regulation.

(1) Any action respecting a violation by a

discharge source of an effluent standard or limi-

tation or an order respecting such standard or

limitation may be brought under this section

only in the judicial district in which such source

is located.

(2) In such action under this section, the

Administrator, if not a party, may intervene as

a matter of right.

(d) Litigation costs

The court, in issuing any final order in any

action brought pursuant to this section, may

award costs of litigation (including reasonable

attorney and expert witness fees) to any party,

whenever the court determines such award is

appropriate. The court may, if a temporary

restraining order or preliminary injunction is

sought, require the filing of a bond or equivalent

security in accordance with the Federal Rules of

Civil Procedure.

(e) Statutory or common law rights not re-

stricted

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 en-

forcement of any effluent standard or limitation

or to seek any other relief (including relief

against the Administrator or a State agency).

(f) Effluent standard or limitation

For purposes of this section, the term “effluent

standard or limitation under this chapter”

means (1) effective July 1, 1973, an unlawful

act under subsection (a) of section 1311 of this

title, (2) an effluent limitation or other limita-

tion under section 1311 or 1312 of this title; (3)

standard of performance under section 1316 of

this title; (4) prohibition, effluent standard or

pretreatment standards under section 1317 of

this title; (5) certification under section 1341 of

this title; or (6) a permit or condition thereof

issued under section 1342 of this title, which is

in effect under this chapter (including a require-

ment applicable by reason of section 1323 of this

title).

(g) Citizen

For the purposes of this section the term “citi-

zen” means a person or persons having an in-

terest which is or may be adversely affected.

* * * * *

Section 105(g) of the Marine Protection, Research,

and Sanctuaries Act of 1972, 33 U.S.C. 1415(g),

provides:

Civil suits by private persons

(1) Except as provided in paragraph (2)

of this subsection any person may commence

a civil suit on his own behalf to enjoin any

person, including the United States and any

other governmental instrumentality or

agency (to the extent permitted by the

eleventh amendment to the Constitution),

who is alleged to be in violation of any pro-

hibition, limitation, criterion, or permit es-

tablished or issued by or under this sub-

chapter. The district courts shall have juris-

diction, without regard to the amount in

controversy or the citizenship of the parties,

to enforce such prohibition, limitation, cri-

terion, or permit, as the case may be.

(2) No action may be commenced—

(A) prior to sixty days after notice

of the violation has been given to the

Administrator or to the Secretary, and

to any alleged violator of the prohibi-

tion, limitation, criterion, or permit; or

(B) if the Attorney General has com-

menced and is diligently prosecuting a

civil action in a court of the United

States to require compliance with the

prohibition, limitation, criterion, or

permit; or

menced action to impose a penalty pur-

suant to subsection (a) of this section,

or if the Administrator, or the Secre-

tary, has initiated permit revocation or

Suspension proceedings under subsec-

tion (f) of this section; or

(D) if the United States has com-

menced and is diligently prosecuting a

criminal action in a court of the United

States or a State to redress a violation

of this subchapter.

(3)(A) Any suit under this subsection

may be brought in the judicial district in

which the violation occurs.

(B) In any such suit under this sub-

section in which the United States is

not a party, the Attorney General, at

the request of the Administrator or

Secretary, may intervene on behalf of

the United States as a matter of right.

(4) The court, in issuing any final order

in any suit brought pursuant to paragraph

(1) of this subsection may award costs of

litigation (including reasonable attorney

and expert witness fees) to any party,

whenever the court determines such award

is appropriate.

(5) The injunctive relief provided by

this subsection shall not restrict any right

which any person (or class of persons) may

have under any statute or common law to

seek enforcement of any standard or limita-

tion or to seek any other relief (including

relief against the Administrator, the Sec-

retary, or a State agency).

W ou. S. GOVERNMENT PRINTING OFFICE; 1980 334374 192

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.