# Opposition — Outboard Marine Corp. v. Illinois

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 453 U.S. 917

## Text

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.

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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,

Be He I astiin simeiidcscnseconcsceniveonsssnocvaieee EE
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
WEE clits ihddotenbsins cinivns sive seasevhonsaneniansabindgensbaciicns 3 9
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0148%3A4. Public record. Not legal advice.