Opposition — Outboard Marine Corp. v. Illinois

No. 80-126 SEP =2 1980

| MICHAEL RODAK, J2., CLE

IN THE

Supreme Court of the United States

Octoser TERM, 1980

OUTBOARD MARINE CORPORATION,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

UNITED STATES OF AMERICA,

and

MONSANTO COMPANY,

Respondents.

—— —

i

BRIEF IN OPPOSITION TO

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

PEOPLE OF THE STATE OF ILLINOIS

Respondent

TYRONE C. FAHNER

Attorney General

State of Illinois

JOHN VAN VRANKEN

/ ;sistant Attorney General

188 West Randolph Street

Suite 2315

Chicago, Illinois 60601

(312) 793-2491

Printed by the Authority of.the State of Hlinotrs — 8-80-85

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ag

No. 80-126

IN THE

Supreme Court of the United States

OcToBER TERM, 1980

OUTBOARD MARINE CORPORATION,

Petitioner,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

UNITED STATES OF AMERICA,

and

MONSANTO COMPANY,

Respondents.

~—-——

BRIEF IN OPPOSITION TO

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

QUESTIONS PRESENTED

1. Whether Congress in the Clean Water Act has.preemp-

ted the entire field of federal common law of nuisance as it

applies to pollution of interstate navigable waters.

2. Whether the jurisdiction of a district court to hear a

claim based on federal common law of nuisance is dependent

on the geographical location of the parties.

3. Whether a state can intervene as of right or as matter of

discretion in an action brought by the United States under the

Clean Water Act alleging continuing pollution when the United

States has not specifically asked the court to enjoin future

discharges.

4. Whether a state can bring a federal common law of

nuisance action when the United States has instituted an action

under the Clean Water Act.

TABLE OF CONTENTS

TABLE OF AUTHORITIES...........+sesesesssssesseseseesee ii

OPINION BELOW 000....c.ccsccsssessccssssesesssscesessnuieecessnes 1

' ADDITIONAL STATUTES INVOLVED.............. l

4 STATEMENT OF THE CASE ..0.c..cc:cscssessesseesseeoeess 2

REASONS FOR DENYING THE WRIT.............. 4

I. THE ISSUES PRESENTED IN THIS

CASE ARE NOT RIPE FOR SU-

PREME COURT REVIEW. ................000++ 4

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Il. THE SEVENTH CIRCUIT'S DECISION

‘ DOES NOT CREATE ANY CON-

4 FLICT WITH CONGRESSIONAL

‘ POWERS oo tis 6

3 Il]. THERE IS NO ACTUAL CONFLICT BE-

| TWEEN THE HOLDING OF THE

: SEVENTH CIRCUIT AND THOSE OF

bs THE FOURTH AND EIGHTH CIR-

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IV. THE SEVENTH CIRCUIT’S DECISION

DOES NOT BROADEN _ THE

JURISDICTION OF THE DI° TRICT

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V. THE SECOND APPEAL PRESENTS NO

‘ ISSUE SIGNIFICANT ENOUGH TO

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TABLE OF AUTHORITIES

CASES |

Committee for the Consideration of Jones

Falls Sewage System v. Train, 539 F.2d

1006 ( 4th Cir, 1976) 0.0... ececeeescceeeeeee 9,10

Erie R. Co. v. Tompkins, 304 U.S. 64

CTD SB Pi, Sicccdabestabcsk lbs dibesncntap dab casesesvadilbes 6

Federal Maritime Terminals, Inc. v.

Burnside Shipping Co., 394 U.S. 404

CEE ics ecdeishaemiarsssiasecsasscbjessibeos 7

Illinois v. Milwaukee, 406 U.S. 91 (1972) 5,6,8,10,

11,12

Illinois Central Railroad Co. v. State of

Illinois, 146 U.S. 387 (1892)...............4. 14

People ex rel. Scott v. Chicago Park Dist.,

66 Ill.2d 65, 360 N.E.2d 773 (1976)..... 14

People of the State of Illinois v. Outboard

Marine Corp., 619 F.2d 623 (7th Cir.

| ARBRE YD pee RE AR ln AON ROR Oe 4,8,11,13

Reserve Mining Co. v. EPA, 514 F.2d 498

EMIS RIED DA Lincsulbensusdctessodsheptvarssconves 9,10

Textile Workers v. Lincoln Mills, 353

ee FE EE FF i satbbscschaccalescadrasonbsnsosensin 6

Washington v. General Motors Corp., 406

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STATUTES ;

Judiciary and Judicial Procedure

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BO Ces WEBER Bikecsicdanussreccndécidecssousses 2,3,11

Rivers and Harbors Act

33 UBL, § MOF OE OOD, cscciscccthvenbdcciineisecss 3

Clean Water Act

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Submerged Lands Act

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fe.

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, Federal Rules of Civil Procedure

State Statutes

: Ill. Rev. Stat. 1977, ch. 19, §§ 150-151 .....

OTHER AUTHORITIES

Friendly, In Praise of Erie—and of the

» New Federal Common Law, 39

| N.Y.U.L.Rev. 383 (1964) 0.0... eeeeeeeee

Mishkin, The Variousness of “Federal

Law”: Competence and Discretion in

the Choice of National and State Rules

it Maen 105 U.Pa.L.Rev. 797

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OPINION BELOW

The opinion of the court of appeals is reported as People of

the State of Illinois vy. Outboard Marine Corp., 619 F.2d 623

(7th Cir. 1980)

ADDITIONAL STATUTES INVOLVED

28 U.S.C. § 1331(a)

§ 1331. Federal question; amount in controversy; costs.

(a) The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy

exceeds the sum or value of $10,000, exclusive of interest

and costs, and arises under the Constitution, laws or

treaties of the United States,. ...

Rule 24(a) and (b), Federal Rules of Civil Procedure.

(a) Intervention of Right. Upon timely application any-

one shall be permitted to intervene in an action: (1) when a

statute of the United States confers an unconditional right to

intervene; or (2) when the applicant claims an interest relating

to the property or transaction which is the subject of the action

and he is so situated that the disposition of the action may as a

practical matter impair or impede his ability to protect that

interest, unless the applicant’s interest is adequately represented

by existing parties. t

(b) Permissive Intervention. Upon timely application

anyone may be permitted to intervene in an action: (1) when a

statute of the United States confers a conditional right to

intervene; or (2) when an applicant’s claim or defense and the

main action have a question of law or fact in common. When a

party to an action relies for ground of claim or defense upon

_ any statute or executive order administered by a federal or state

governmental officer or agency or upon any regulation, order,

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.

2

requirement or agreement issued or made pursuant to the

statute or executive order, the officer or agency upon timely

application may be permitted to intervene in the action. In

exercising its discretion the court shall consider whether the

intervention will unduly delay or prejudice the adjudication of

the rights of the original parties.

STATEMENT OF THE CASE

On August 10, 1978, the People of the State of Illinois

(“State” or “Illinois”’) filed suit in United States District Court

for the Northern District of Illinois against Outboard Marine

Corporation (“OMC’’), a Delaware corporation with facilities

located in Waukegan, Illinois, some ten miles south of the

Wisconsin border. The complaint alleged that from 1959

through 1978 OMC discharged highly toxic polychlorinated

biphenyls (“PCBs”) from its facility into the North Ditch,

Waukegan Harbor and Lake Michigan, interstate and navi-

gable waters. It alleged that these PCBs had accumulated in

the bottom sediments of the receiving waters (which Illinois

owns in trust for the people ) comprising as much as 25 per cent

of these sediments. It further alleged that OMC’s pollution

damaged water quality, and aquatic and bird life (which

Illinois also owns in trust for the people), harmed the health

and weifare of the people and impaired the usefulness of

Waukegan Harbor and Lake Michigan as public water supplies

and recreation areas for citizens of Illinois and of the other

states surrounding Lake Michigan. (RI, Item 1)!

The complaint alleged two federal claims—federal com-

mon law of nuisance and the Clean Water Act, 33 U.S.C.

§ 1251 et seg. Jurisdiction was invoked under 28 U.S.C.

1As used herein “R1” refers to the record in the first appeal

(Seventh Circuit No. 79-134), “R2” refers to the record in the second

appeal (Seventh Circuit No. 79-1725), and “App.” refers to Petition-

er’s Appendices.

; 3

§ 1331(a) and 33 U.S.C. § 1251 et seg. Illinois also included

several pendent state claims. On motion of OMC the court

dismissed the action. (App. D-1) It dismissed the claim under

the Clean Water Act on the ground that Illinois had not given

sixty days notice of the suit. See 33 U.S.C. § 1365(b)(1)(A). |

(App. D-3) The federal common law of nuisance count was

dismissed for failure to state a claim because there was “no

allegation of injury to or from another state.” (App. D-4)

Illinois filed a timely appeal in the court of appeals pursuant to

4 28 U.S.C. § 1291 on the nuisance claim but did not appeal the

j dismissal of the Clean Water Act claim. (Rl, Item 23)

When Illinois’ own suit was dismissed, the State petitioned

to intervene in a suit filed on March 17, 1978, by the United

States against OMC, then pending before the same district

judge (the two cases had been previously consolidated for

discovery). The United States’ suit alleged basically the same

facts as Illinois’ suit and was based on the Rivers and Harbors

Act of 1899, 33 U.S.C. § 401 et seg., the Clean Water Act, and

federal common law of nuisance. (R2, Item 1) Although

alleging continuing pollution, the United States’ prayer for

relief only asked for the specific relief of studies and dredging

of the contaminated sediments. OMC’s motion to dismiss had

earlier been denied. (R2, Item 21) Illinois claimed inter-

vention as of right under the Clean Water Act, 33 U.S.C.

§ 1365(b)(1)(B) and thus under Rule 24(a)(1) of the Feder-

al Rules of Civil Procedure, intervention as of right under Rule

24(a)(2) of the Federal Rules of Civil Piocedure and per-

f missive intervention under Rule 24(b)(2) of the Federal Rules

of Civil Procedure. (R2, Item 59) The district court rejected

Illinois’ claims on all three grounds. (App. C-1) Illinois filed a

timely appeal in the court of appeals pursuant to 28 U.S.C.

$1291. (R2, Item filed January 22, 1979) The two appeals

were consolidated by the court on its own motion. The United

States filed an amicus curiae brief in support of Illinois’

intervention. On February 28, 1980, a unanimous panel of the

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court reversed and remanded in both cases. 619 F.2d at 623.

OMC’s motion for rehearing and suggestion for rehearing in

banc was denied on April 29, 1980. (App. B-1) OMC filed its

petition for writ of certiorari on July 28, 1980.

REASONS FOR DENYING THE WRIT

The court of appeals in a well-reasoned opinion thoroughly

; considered the issues raised and reached a correct decision. As

is discussed below, the reasons OMC advances in support of the

writ do not result from the court’s decision and are not sufficient

grounds for this court to grant a writ of certiorari to review the

Seventh Circuit’s decision.

1,

THE ISSUES PRESENTED IN THIS CASE ARE NOT

RIPE FOR SUPREME COURT REVIEW.

The action brought by Illinois in the district court was

dismissed on the pleadings on the ground that the complaint

failed to state a claim upon which relief could be granted.

(App. D-4) Illinois’ claim was grounded in federal common

law of nuisance and alleged that from 1959 through 1978 OMC

discharged highly toxic polychlorinated biphenyls (“PCBs”)

into the North Ditch, Waukegan Harbor and Lake Michigan.

(Rl, Item 1, pp. 1-5) In its prayer for relief it requested the

court to enjoin further discharges and to order OMC to remove

contaminated sediments in these polluted bodies of water. (RI,

Item 1, pp. 13-15) The dismissal was reversed by the court of

appeals and the cause was remanded for trial. 619 F.2d at 632.

Since 1978 the suit brought by the United States against

OMC has been pending before the same district judge. That

action is grounded in part on federal common law of nuisance

and alleges the same basic facts as are alleged in Illinois’ suit.

(R2, Item 1) (This is the action in which Illinois attempted to

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intervene when its own suit was dismissed.) OMC’s motion to

dismiss was denied in that case and the case continues. (R2,

Item 21) As is discussed more fully below, there are no specific

federal or state effluent standards governing OMC’s discharges

of PCBs. Much of the relief sought is not based in statute. As

the Court recognized in Illinois v. Milwaukee, 406 U.S. 91

(1972), it will be up to the district judge to formulate the

standards to be applied in this situation and to fashion appro-

priate equitable relief. 406 G's. at-103 n.5 and at 108 n.10.

On this review all this Court can decide are narrow legal

issues based solely on the pleadings. The issues of whether the

discharge of PCBs have created a public nuisance, of what

effect this pollution has had, of what standards should apply, of

where the equities lie and of what relief is appropriate cannot

be decided here.

It would promote judicial economy for the Court to deny

its writ of certiorari at this time. The district judge will make

his ultimate decision in the ongoing federal case (in which

Illinois is now an intervenor as a result of the Seventh Circuit’s

decision) based on the same allegations, evidence and argu-

ments as he would in Illinois’ case. (At this time the two cases

have been consolidated for discovery [R2, Order dated October

12, 1978] and the judge has indicated that he will consolidate

them for trial [R2, Item 21, pp. 7-8].) Once the district judge

has heard the evidence and arguments of the various parties

and reached a decision, the case would be in a position for this

Court to review all the issues raised. To grant a writ of

certiorari now would be to grant only peicemeal review.

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THE SEVENTH CIRCUIT’S DECISION DOES NOT

CREATE ANY CONFLICT WITH CONGRESSIONAL

POWERS.

Since Erie R. Co. v. Tompkins, 304 US. 64 (1938), the

federal courts have developed a specialized common law

“‘when there is an overriding federal interest in the need for a

uniform rule of decision or where the controversy touches basic

interests of federalism.” J/linois v. Milwaukee, 406 U.S. at 105

n.6. Most often the courts have developed this common law to

fill interstices in various types of federal legislation. See

Friendly, In Praise of Erie—and of the New Federal Common

Law, 39 N.Y.U.L.Rev.383 (1964) and Mishkin, The Vari-

ousness of “Federal Law”: Competence and Discretion in the

Choice of National and State Rules for Decision, 105

U.Pa.L.Rev.797 (1957).

In Illinois v. Milwaukee this Court formulated a federal

common law of public nuisance for pollution of interstate or

navigable waters. The Court examined the various federal

statutes and found that Congress had not provided the relief

sought by Illinois for pollution of Lake Michigan, 406 U.S. at

103. But as the Court recognized, this does not limit the relief a

federal court can grant, 406 U.S. at 103—citing Textile Workers

v. Lincoln Mills, 353 U.S. 448, 457 (1957).

The Court recognized that Congress could at some future

time preempt the entire field of federal common law of

nuisance, 406 U.S. at 107. It found that Congress had not done

so. In an air pollution case decided the same day the Court

recognized that Congress could preempt certain areas of federal

’ common law of nuisance and not others. Washington v.

General Motors Corp., 406 U.S. 109 (1972). Indeed, that is the

main function of federal common law, to fill in the gaps.

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OMC devotes several pages of its Petition in describing the

a intricacies of the Clean Water Act. Nowhere can it find any

“4 express intent to preempt the federal common law of nui- aa

j sance—there is none. The intent of Congress is just the ?

: opposite. Since this Court’s 1972 decision in JIlinois v. Mil-

waukee, Congress has enacted two major amendments to the *

Clean Water Act, in 1972 (P.L. 82-500. and in 1977 (P.L. 95-

: 217). In the 1972 amendments Congress created an express .

private right of action, the Citizen Suit provision. 33 U.S.C. -

4 § 1365. It was reenacted in the 1977 amendments. In doing so .

a Congress included a savings clause which expressly preserved

all common law right:

b (e) Nothing in this section shall restrict any right which

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

statute or common law to seek enforcement of any effluent

: standard or limitation or to seek any other relief (including

ag relief against the Administrator or a State agency).

¢ 33 U.S.C. § 1365(e)

“ Congress could not have been more clear.

es Despite the unequivocal language of the statute, OMC

argues that the Clean Water Act somehow implies that Con-

gress intended to preempt federal common law of nuisance. As

this Court has noted: “the legislative grant of a new right does

not ordinarily cut off or preclude other non-statutory rights in

| the absence of clear language to that effect.” Federal Maritime

i: Terminals, Inc. v. Burnside Shipping Co. 394 U.S. 404, 412

(1969). The clear language of Congress in the Clean Water

Act is just the opposite from what OMC argues.

OMC never identifies what specific provisions of the Clean

__. Water Act this lawsuit conflicts with because there is no conflict.

q In its Petition it admits: “there have never been effluent

standards governing the discharge of PCBs from an aluminum “g

die case facility. . ..” (OMC’s Petition, p. 2) Ilinois’ complaint ,

alleges that from January 1, 1959, to August 10, 1978, OMC

discharged highly toxic PCBs into the North Ditch, Waukegan

8

Harbor and Lake Michigan. It prayed that further discharges

be enjoined and that OMC be ordered to remove the con-

taminated sediments. The 1972 and 1977 amendments to the

Clean Water Act do not directly address OMC’s pollution prior

to that time. There have never been any specific effluent

standards for OMC’s discharges of PCBs. The relief sought by

Illinois is not provided for in federal statutes. The National

Pollutant Discharge Elimination System (“‘“NPDES”) permit

program was not enacted until 1972, and OMC’s first NPDES

permit was not issued until 1975.2 Perhaps the Clean Water Act

provides Illinois a remedy for current violations (though OMC

has not stated how), but it provides none to remedy the effects

of OMC’s past pollution. This situation falls within the same

sort of gap in federal legislation as was present in JIlinois v.

Milwaukee.

Despite the involvement of an exotic toxic chemical, what

Illinois has brought is an action in public nuisance, an action

known to the Anglo-American courts for centuries. It is

probably the only remedy the state has. The case arises under

federal law because it involves pollution of interstate and

navigable waters. Jilinois v. Milwaukee. The decision below

does not conflict with anything Congress has promulgated; as

Judge Wisdom wrote for the court below, the very purpose of

such an action is to “fill the statutory interstices and to provide

uniformity in controlling water pollution in either interstate or

navigable waters... .” 619 F.2d at 630.

OMC’s argument that the court of appeals’ decision vio-

lates separation of powers and infringes on the power of

Congress rests on nothing. There is.no conflict. There is no

2 Interestingly, OMC’s current NPDES permit, which allows no

discharge of PCBs, is being appealed by OMC before a state

administrative agency on the ground, among others, that there can be

no PCB limit in the permit because there are no state or federal

effluent standards for PCBs applicable to OMC. OMC v-. Illinois

Environmental Protection Agency, filed with the Illinois Pollution

Control Board (Docket No. 79-141) on July 11, 1979.

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usurption of Congressional power. There is no need for this

Court to grant its writ of certiorari; this matter belongs before

the district court where, based on the law and evidence, it can

decide this case.

Ill.

THERE IS NO ACTUAL CONFLICT BETWEEN THE

HOLDING OF THE SEVENTH CIRCUIT AND THOSE OF

THE FOURTH AND EIGHTH CIRCUITS.

OMC urges this Court to exercise its discretion to review

the Seventh Circuit’s decision because of what it claims is a

conflict among the circuits. That conflict is more illusory than

real. The two cases cited by OMC, Committee for the Consid-

eration of Jones Falls Sewage System v. Train, 539 F.2d 1006

(4th Cir. 1976) and Reserve Mining Co. v. EPA, 514 F.2d 498

(8th Cir. 1975), are easily distinguishable. The Seventh Circuit

recognized the significant differences: ““Those two decisions are

distinguishable in that in each case the court found that the

pollution had only an intrastate effect. Here, of course, the four

states bordering on Lake Michigan are all affected ....” 619

F.2d at 629.

The differences between the cases are significant. In Jones

Falls there was no allegation of any effect outside of Maryland,

539 F.2d at 1009, nor was there any evidence of extra-territorial

harm, 539 F.2d at 1009. Here Illinois alleged the pollution of

the North Ditch, Waukegan Harbor and Lake Michigan,

interstate and navigable waters. (R1, Item 1, pp. 3-5) As well

as alleging injury to the state, Illinois also alleged that OMC’s

pollution has seriously impaired the usefulness of Waukegan

Harbor and Lake Michigan as public water supplies and as

places of recreation for other states as well. (RI, Item 1,

paragraphs 6, 7, 8, and 17.) These factors were not present in

Jones Falls. Additionally, Jones Falls involved private plain-

tiffs. 539 F.2d at 1007. The court gave great weight to the lack

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of any rights of a state being involved. 539 F.2d at 1010. Here,

of course, the plaintiff is the State of Illinois alleging injury to its

quasi-sovereign rights and to its citizens.

Reserve Mining is similarly distinguishable. That court

found that there was no allegation of any interstate effect of the

air pollution complained of in that case. 514 F.2d at 520-521.

Here there are allegations of interstate pollution. In a factual

situation more similar to OMC, pollution of Lake Superior, the

Eighth Circuit chose not to decide the issue of federal common

law nuisance, ‘but relied solely on the Federal Water Pollution

Control Act (Clean Water Act). 514 F.2d at 532.

There is no conflict between the holding of the Seventh

Circuit and the holdings of the Fourth and Eighth Circuits.

This court should not grant its writ of certiorari to review

hypothetical disagreements among the circuits or conflicts in

dicta.

IV.

THE SEVENTH CIRCUIT’S DECISION DOES NOT

BROADEN THE JURISDICTION OF THE DISTRICT

COURTS.

The decision below does not extend the decision of this

Court in Illinois v. Milwaukee, but is entirely consistent with it.

There is only one factual difference between the two cases—the

geographical location of the polluter. The plaintiff is the same,

the State of Illinois. The claim is the same, water pollution.

The same federal interest in uniformity is present. Even the

water is identical, Lake Michigan. An accident of geography

(OMC is located approximately 10 miles from the Wisconsin

border) does not determine whether an action arises under the

laws of the United States. Indeed, in J/linois v. Milwaukee the

federal court has jurisdiction because of the federal interest in

providing uniformity and consistency in controlling water pollu-

tion in interstate and navigable waters, not because of the

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geographical location of the parties. The same basis of

jurisdiction exists here. OMC’s argument that something like

diversity must exist leads to absurd results and defeats the

uniformity described by the Court in J/linois v. Milwaukee. It

would indeed be anomolous if state law applied to pollution of

Lake Michigan if Illinois sues but federal law applies if

Wisconsin sues for the same pollution. The decision does not

expand the jurisdiction of the district courts under 28 U.S.C.

§ 1331(a).

Yet OMC sees the Seventh Circuit’s decision as opening

the federal courts to any sort of pollution case. Its absurd

example is a person suing his neighbor over smoke from a

barbecue grill. (OMC’s Petition, P. 22) Despite OMC’s

interpretation, the court below certainly did not hold that “all

air and navigable water pollution cases involve a federal

question.”” (OMC’s Petition, p. 23) The court’s holding is

significantly narrower.

Most obviously this case does not deal with air pollution.

However one might want to speculate about the limitations of

federal common law of nuisance of air pollution, there was no

allegation of air pollution, no evidence as to air pollution and

no decision of either the district court or the court of appeals as

to air pollution. That question was not raised in this case and

cannot properly be before this Court.

Secondly, the decision below has nothing to do with

whether any person can sue anyone for pollution. This is an

action grounded in a traditional Anglo-American tort—public

nuisance. Over the centuries the courts have developed limita-

tions as to who can bring such an action. Certainly a state can.

That is what the court decided. 619 F.2d at 623-624. Whether

a person other than a state may bring such an action was not

before the court and was not decided by it.

Nor does the decision below preempt all state pollution

laws as OMC claims (OMC’s Petition, p. 23). This was not an

issue below; Illinois has no specific effluent standards governing

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discharge of PCBs. Federal common law of nuisance is

intersticial—it fills in the gaps in Congress’ enactments. As such

it can no more preempt state law, common law or statutory,

than the federal statute which it complements. It is clear that

Congress, which could have displaced federal common law of

nuisance and could have preempted conflicting state laws, has

specifically not done so. The Clean Water Act allows a state to

adopt, by statute, regulation or common law decision, and to

enforce more stringent standards than the federal ones. 33

U.S.C. § 1370. The Seventh Circuit’s decision has no effect on

that.

The possible effects of the decision below are much

narrower than OMC advances. Since Jilinois v. Milwaukee was

decided in 1972, there have not been many reported cases

involving the federal common law of nuisance of water pollu-

tion; Illinois doubts that the Seventh Circuit’s decision will add

many more. Certainly the decision does not expand the

jurisdiction of district courts and will not result in the dire

consequences OMC predicts. The decision does not open the

federal courts to any pollution case brought by any plaintiff

against any defendant. For these reasons the Court should not

grant a writ of certiorari to review this matter.

@

Vv.

THE SECOND APPEAL PRESENTS NO _ ISSUE

SIGNIFICANT ENOUGH TO WARRANT SUPREME

COURT REVIEW.

In the second of these two consolidated appeals the court

of appeals held that Illinois had a right under the Clean Water

Act and F.R.Civ.P. 24(a)(1) to intervene in the suit brought by

the United States against OMC. The question presented was a

very narrow one and the holding is confined to the facts of that

case. The Clean Water Act allows a citizen, such as Illinois, to

intervene as of right when the United States has brought an

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action to require compliance with a standard, limitation or

order established under the Clean Water Act. 33 U.S.C.

§ 1365(b)(1)(B). The United States alleged that OMC was

violating such a standard or limitation. The only real question

arose because, although the United States had alleged contin-

uing pollution, it had not specifically prayed that the court

enjoin these ongoing discharges but had asked that OMC be

ordered to remove contaminated sediments from the North

Ditch and Waukegan Harbor. The narrow question decided

was whether the wording of the prayer for relief meant that the

action was one “to require compliance.” The court of appeals

held that the wording of the prayer for relief did not prevent the

action from being one “to require compliance” and that Illinois

did have a statutory right to intervene under the Clean Water

Act. 619 F.2d at 630-632. It did not hold as OMC claims that

any person has a right to intervene in any action brought by the

United States. The issue was very narrow and will probably

never reoccur. OMC admits that what it is asking is for this

Court to interpret “boilerplate” language in the complaint filed

by the United States. See OMC’s Petition, p. 27. The question

is not important enough for this Court to review.

The Seventh Circuit was clearly correct in its decision.

Because it decided the issue on the ground of intervention as of

right under the Clean Water Act and F.R.Civ.P. 24 (a)(1), it

did not reach the alternate grounds advanced by Illinois,

intervention as of right under Rule 24(a)(2) or by permission

under Rule 24(b)(2). Although the court of appeals did not

have to reach these issues, its discussion of the practicability

and desirability of Illinois’ intervention in the suit indicates that

it may well have sustained interVéntion on these alternate

grounds. See 619 F.2d at 631-632. The court pointed out that

state-issued permits would be necessary to accomplish the relief

sought by the United States. 619 F.2d at 632. (Indeed, the

United States prayed that any dredging be approved by the

‘Illinois Environmental Protection Agency, [R2, Item 1, pp. 7-

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8].) When to this is added Illinois’ ownership of the submerged

lands in question (43 U.S.C. § 1311) and its role as trustee of

these lands for the benefit of the people (Jilinois Central

Railroad Co. v. State of Illinois, 146 U.S. 387 [1892], People ex

rel. Scott v. Chicago Park Dist., 66 11l.2d 65, 360 N.E.2a 773

[1976], and Ill. Rev. Stat. 1977, ch. 19, § 150-151), Illinois’

intervention would have been properly allowed on these alter-

nate grounds.

As a final issue in this second appeal, OMC claims that the

court of appeals erred in allowing the state to pursue its own

independent common law action as well as to intervene in the

statutory one brought by the United States. (OMC’s Petition,

pp. 28-30) Its argument is without any merit. The citizen suit

provision of the Clean Water Act does prohibit a person from

filing his own suit if the United States has initiated an action

(but the citizen can then intervene as of right). 33 U.S.C.

§ 1365. However, as is clear from the statute, in such circum-

stances the citizen cannot initiate his own action under that

section; there is no bar to any other type of action, The

provision specifically states that “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 enforcement of

any effluent standard or limitation or to seek any other re-

lief... .” 33 U.S.C. §'1365(e) [emphasis supplied] By its own

terms the Act permits simultaneous actions—one brought by

the United States under the Clean Water Act and another

brought by a citizen under common law. The court of appeals

properly allowed Illinois to intervene in the suit brought by the

United States and to maintain its own common law action. The

decision of the court was entirely consistent with the statute.

As discussed above, the Seventh Circuit’s decision in the

second appeal was correct, would be sustained on alternate

grounds and is fair. There is no issue in this case significant

enough for this Court to review. The writ should be denied as

to the second appeal. 7 ae

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CONCLUSION

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‘ Zi me J Respectfully submitted

_ Respondent

TYRONE C. FAHNER

| General

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State of Illinois

JOHN VAN VRANKEN

Chicago, Illinois

(312) 793-2491

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: on For the foregoing reasons the People of the State of Illinois

submits that the Court should ony the writ of certiorari.

PEOPLE OF THE STATE OF ILLINOIS