Opposition — Outboard Marine Corp. v. Illinois

PUL B

SB 26 |

MICHAEL RODAK, J

a the Supreme Court of the Yited States

OCTOBER TERM, 1979

No. 80-126

‘ QUTBOARD MARINE CORPORATION, PETITIONER

Vv. ~~

PEOPLE OF THE STATE OF ILLINOIS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. McCreg, JR.

Solicitor General

JAMES W. MooRMAN

Assistant Attorney General

ROBERT L. KLARQUIST

MARTIN W. MATZEN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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an the Supreme Court of the United States

OcTOBER TERM, 1979

No. 80-126

OUTBOARD MARINE CORPORATION, PETITIONER

Vv.

PEOPLE OF THE STATE OF ILLINOIS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

- THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

QUESTIONS PRESENTED

1. Whether the Clean Water Act preempts the federal

common law of nuisance in respect of pollution of

interstate and navigable waters.

2. Whether a state may invoke the federal common law

of nuisance to remedy an in-state discharger’s pollution of

interstate and navigable waters.

‘ 3. Whether the court of appeals correctly permitted the

_ _ * State of Illinois to intervene as of right pursuant to

Section 505(b\1)(B): of the Clean Water Act, 33 U.S.C.

1365(b\(1\(B), in a suit broughi by the federal government

under the Act.

4. Whether a state may pursue independently its rights

and remedies under the-Clean Water Act and the federal

common law of nuisance.

Pv.

ll

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Ancarrow v. City of Richmond, 600 F. 2d

OD iaveisiticsidaescs cikeiccciuabalies dsnienmmiaicommeaiiinnanaae 6

City of Milwaukee v. People of the State of

Illinois, cert. granted, No. 79-408

ON NE IPI 1.1 cos scncerls cemnctuasnaaaaiigneiasecosenitnes 4

Committee for the Consideration of the

Jones Falls Sewage System v. Train,

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Hamilton-Brown Shoe Co. v. Wolf Brothers &

ss Ae EE BOR ehicidiivrsciencetndbecedbecnbinanscotinsiabens o

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

SPU siis sc icch siisiniciete seeds lecenniinncliiis aesguubdiohiediiionin 3, 4, 5, 6

National Sea Clammers Ass'n v. City of

New York, 616 F. 2d 1222, petitions for

cert. pending, Nos. 79-1711, 79-1754,

Be Fe A A ncccoo chides snidaoncosatbsbilannesccccecocnsceni 5

Parsell v. Shell Oil Co., 421 F. Supp. 1275,

EE I STS 6. Bee RUD ,isitisdoieicictestensserecone .

Ill

Page

Cases—Continued:

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

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United States v. General Motors Corp., 323

REMNG ABO hare idilncinsededctieundacedinivnisanibaadalgatadbocensavsse 4

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

F. Supp. 145, aff'd, mem., 487 F. 2d 1393,

cert. denied, 417 U.S. 976 ................ Decdekcdkbnpileess 5

Statutes and rules:

Clean Water Act, 33 U.S.C. 1251

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Section 101(b), 33 U.S.C. 1251(b) ....sssssssse0n 4

Section 505(aX1)(A), 33 U.S.C.

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Section 505(b\(1)(B), 33 U.S.C.

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Federal Rules of Civil Procedure:

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OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 619 F. 2d 623. The opinions of the district

court (Pet. Apps. C and D) are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

March 28, 1980. A petition for rehearing was denied on

April 29, 1980 (Pet. App. B). The petition for a writ of

certiorari was filed on July 28, 1980. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner challenges the interlocutory decision of the

court of appeals regarding the right of respondent State of

Illinois to maintain a federal common law nuisance action

and to intervene in an ongoing Clean Water Act suit

brought by the United States concerning the same

controversey.

1. In March 1978, the United States filed suit in the

United States District Court for the Northern District of

Illinois, seeking to remedy petitioner’s past discharges of

polychlorinated biphenyls (“PCB’s”) into North Ditch (a

tributary feeding Lake Michigan), Waukegan Harbor,

and Lake Michigan. The government asked the district

court to order petitioner to dredge and dispose safely of

the PCB-contaminated sediments and to pay civil

penalties. Relief was sought pursuant to the Refuse Act,

33 U.S.C. 407; the Clean Water Act, 33 U.S.C. 1251 et

seq.; and the federal common law of nuisance. The district

court denied petitioner’s motion to dismiss this suit

(United States v. Outboard Marine Corp., 12 E.R.C. 1346

(N.D. Ill. 1978)), and the parties are currently pursuing

pretrial discovery in this action. Trial is expected to

commence early next year.

2

In August 1978, respondent Illinois filed a similar

action against petitioner based on the federal common

law of nuisance, the Clean Water Act, and state law. The

district court dismissed this suit (Pet. App. D-1 to D-4), In

particular, the court held that although the Clean Water

Act had not preempted the federal common law of

nuisance, the federal common law did not govern suits by

a state regarding pollution from an in-state source; even

if that pollution had interstate effects (id. at D-3 to D-4)..

In addition, the court dismissed Illinois’ Clean Water Act

suit for failure to comply with the 60-day notice

requirement set forth in 33 U.S.C. 1365(b\(1)(A) (see Pet.

App. D-2 to D-3),! and it likewise dismissed the

remaining state law claims for lack of jurisdiction (id. at

D-4).

Relying primarily on Section 505(b)(1)(B) of the Act, 33

U.S.C. 1365(bX 1B), and Rule 24(aX(1) of the Federal

Rules of Civil Procedure, Illinois thereafter moved to

intervene in the federal government’s suit against

petitioner. The district court agreed that Section

505(b)( 1B) gives any citizen or state an absolute right to

intervene in a suit brought by the federal government “to

require compliance” with the Act. It concluded, however,

that the federal suit does not constitute an action “to

require compliance,” because the government sought

merely to redress past violations rather than to achieve

future compliance (Pet. App. C-2 to C-4). Accordingly,

the district court denied the motion to intervene.

2. Illinois then appealed both the order dismissing its

own suit and the order denying its motion to intervene in

the federal suit. The court of appeals reversed (Pet. App.

A-1 to A-20). The court first concluded that Illinois may

‘Illinois did not contest this ruling on appeal (Pet. App. A-3).

3

invoke the federal common law as a remedy against the

pollution of interstate or navigable waters regardless of

the location of the polluter. The court observed that in

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

Court repeatedly emphasized that the federai common

law of ‘nuisance concerns the pollution of “interstate or

navigable waters” (Pet. App. A-7 to A-8, A-11, quoting

406 U.S. at 99, 102, 104 (emphasis supplied)). The court

of appeals pointed out that this broad application of the

federal comimon law of nuisance is consistent with the

intent of Congress reflected in the language and legislative

history of the Clean Water Act and with the interstate

nature of water pollution (Pet. App. A-8 to A-12).

Moreover, the court rejected decisions of the Fourth and

Eighth Circuits suggesting a narrower scope of the federal

common law (Pet. App. A-12 to A-13). See Reserve

Mining Co. v. EPA, 514 F. 2d 492 (8th Cir. 1975);

Committee for the Consideration of the Jones Falls

Sewage System v. Train, 539 F. 2d 1006 (4th Cir. 1976).

The court noted (Pet. App. A-13) that in any event

[t]hose 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 * * *.

The court of appeals also held that Illinois had a right

to intervene in the federal government’s Clean Water Act

suit. The court explained that Section 505(b\(1)\B)

expressly provides for intervention in a suit brought by

the United States to require compliance with the Act,

including a suit concerning the clean up of current PCB

pollution (Pet. App. A-17 to A-19). Such intervention, the

court observed, was consistent with the Act’s policy “to

recognize, preserve, and protect the primary respon-

sibilities and rights of States to prevent, reduce, and

4

eliminate pollution” (Pet. App. A-19, quoting 33 U.S.C.

1251(b)).

DISCUSSION

1, Petitioner primarily contends (Pet. 5-17) that the

Clean Water Act, 33 U.S.C. 1251 et seqg., preempts the

federal common law of nuisance regarding the pollution

of interstate and navigable waters. See Illinois v. City of

Milwaukee, 406 U.S. 91 (1972). That issue is currently

before the Court in City of Milwaukee v. People of the

State of Illinois, cert. granted, No. 79-408 (Mar. 17, 1980).

For the reasons stated in our amicus curiae brief in that

case, we believe that the courts below correctly rejected

petitioner’s claim.? Nonetheless, because the issue is now

pending before the Court, it may be appropriate to defer

disposition of this petition pending the decision in City of

Milwaukee v. People of the State of Illinois, supra.’

2. The other issues raised by petitioner do not warrant

review by this Court. At the outset, we note that the court

of appeals’ decision is interlocutory in nature and that

review is unwarranted at this time. See, e.g., United States

v. General Motors Corp., 323 U.S. 373, 377 (1945);

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240

U.S. 251, 257-258 (1961). Indeed, further litigation may

well moot some or all of the issues posed by petitioner.‘

In addition, development of the facts of this case will

2A copy of our brief in City of Milwaukee has been sent to counsel

for petitioner.

3We note that the decision below is interlocutory in nature and that

the litigation concerning petitioner's discharge of PCB’s is now

ongoing in the district court. Accordingly, the Court could properly

deny this petition, permitting the lower courts to apply the

subsequent decision in City of Milwaukee in the first instance.

‘For example, petitioner may prevail on the merits of one or both

suits.

5

illuminate petitioner’s contention (Question 2) regarding

the scope of the federal common law of nuisance. In any

event, as we briefly demonstrate below, the decision of the

court of appeals is correct.

a. Petitioner argues (Pet. 17-23) that the federal

common law of nuisance does not apply to suits between

a state and a citizen of that state, even if the pollution

affects interstate or navigable waters. But in Jllinois v.

City of Milwaukee, supra, which also involved the

pollution of Lake Michigan, this Court repeatedly

emphasized that the federal common law applies to the

pollution of all “interstate or navigable waters.” See 406

U.S. at 99, 102, 104. And, contrary to petitioner’s

suggestion (Pet. 21), application of the federal common

law in this case does not depend on “the character of the

parties.” 406 U.S. at 105 n.6. In short, where, as here,

plaintiffs allege that the pollution affects interstate and

navigable waters, there is a federal common law remedy.

Accord, National Sea Clammers Ass'n vy. City of New

York, 616 F. 2d 1222, 1233-1234 & n.35 (3d Cir. 1980),

petitions for cert. pending, Nos. 79-1711, 79-1754, 79-1760

and 80-12; Parsell v. Shell Oil Co., 421 F. Supp. 1275,

1281 (D. Conn. 1976), aff'd mem., 573 F. 2d 1289 (2d Cir.

1977); United States v. Ira S. Bushey & Sons, 346 F.

Supp. 145, 149 (D. Vt. 1972), aff'd mem., 487 F. 2d 1393

(2d Cir. 1973), cert. denied, 417 U.S. 976 (1974).5

5To be sure, as petitioner notes (Pet. 17-19), the court below

disagreed with decisions of the Fourth and Eighth Circuits suggesting

that federal common law does not apply to local pollution

controversies involving no allegations of interstate effects (Pet. App.

A-13). See Reserve Mining Co. v. EPA, 514 F. 2d 492, 520-521 (8th

Cir. 1975); Committee for the Consideration of the Jones Falls

Sewage System v. Train, 539 F. 2d 1006, 1008 (4th Cir. 1976). But, as

the court of appeals further pointed out, Reserve Mining and Jones

Falls “are distinguishable in that in each case the court found that the

6

b. Petitioner further contends (Pet. 24-28) that the

court of appeals improperly permitted Illinois to intervene

in the suit brought by the United States alleging

petitioner’s noncompliance with the Clean Water Act.

Rule 24aX1) of the Federal Rules of Civil Procedure

provides, however, that “anyone shall be permitted to

intervene in an action * * * when a statute of the United

States confers an unconditional right to intervene.”

Section 505(bX1)(B) of the Clean Water Act, in turn,

states that any citizen, including a state, “may intervene as

a matter of right” in any action “to require compliance”

with the standards and limitations set in accordance with

the Act. See 33 U.S.C. 1365(b)(1)(B). And, as the court of

appeals concluded, nothing in the broad language or

legislative history of Section 505 suggests that Congress

sought to preclude citizen intervention in a suit brought to

remedy continuing noncompliance with the Act, merely

because noncompliance is based on past discharges (Pet.'

App. A-18 to A-20). That decision does not conflict with

any decision of this Court or of any court of — and

further review is unwarrarted.°

c. Finally, petitioner claims that Section 505(b)(1)\(B)

precludes an independent citizen’s suit where, as here, the

federal government is already diligently prosecuting an

action to secure compliance with the Act. Therefore, in

pollution had only an intrastate effect” (Pet. App. A-13). See also

Ancarrow v. City of Richmond, 600 F. 2d 443, 445 (4th Cir. 1979).

Here, of course, Illinois and the federal government alleged that

petitioner’s discharges are affecting, inter alia, Lake Michigan—a

body of water that this Court has expressly found to be governed by

the federal common law of nuisance. See 406 U.S. at 105 n.6.

6Illinois also sought to intervene as a matter of right under Fed. R.

Civ. P. 24a\(2) and as a matter of discretion under Fed. R. Civ. P.

2Mb). The court of appeals did not rule on these points (Pet. App.

A-20).

Be

7

petitioner's view, the court of appeals erroneously

permitted Illinois both to intervene and to pursue its

common law suit. But Section 505(b\1XB) merely

precludes a citizen from bringing a suit “under [Section

505KaX1)” of the Act when the government is already

suing to secure compliance with the Act. See 33 U.S.C.

1365(bX 1B). Illinois’ independent suit is, of course,

based on the federal common law and thus is plainly not

governed by the terms of Section 505(b)\(1)B).

CONCLUSION

The Court may wish to defer consideration of

Questions | and 2 of the petition for a writ of certiorari

pending the decision in City of Milwaukee v. Peopie of

the State of Illinois, cert. granted, No. 79-408 (Mar. 17,

1980). In all other respects, the petition should be denied.

Respectiully submitted.

WADE H. McCreg, JR.

Solicitor General

JAMES W. MOORMAN

Assistant Attorney General

ROBERT L. KLARQUIST

MARTIN W. MATZEN

Attorneys

SEPTEMBER 1980

DO}J-1980-09