Petition for Writ of Certiorari — Scott v. City of Hammond

Supreme Court of the Gnited States

OCTOBER TERM 1984

JUL 5 1984

c Ss

. — =. ovat

PEOPLE OF THE STATE OF ILLINOIS and

PEOPLE OF THE STATE OF MICHIGAN, Petitioners,

CITY OF MILWAUKEE, et al., Pespondents.

PEOPLE OF THE STATE OF ILLINOIS and the

METROPOLITAN SANITARY DISTRICT OF

GREATER CHICAGO, Petitioners,

THE SANITARY DISTRICT OF HAMMOND, et al., Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

FRANK J. KELLEY*

Attorney General of the

State of Michigan

720 Law Building

525 W. Ottawa

Lansing, Michigan 48913

(517) 373-0110

ALLEN S. LAVIN*

Attorney

JAMES B. MURRAY

Head Assistant Attorney

Metropolitan Sanitary Districi

of Greater Chicago

100 E. Erie, Room 301

Chicago, Illinois 60611

(312) 751-5672

* Counsel of Record

NEIL F. HARTIGAN

Attorney General of the

State of Illinois

PHILIP B. KURLAND*

CHRISTOPHER G. WALSH, JR. ~

Special Assistant Attorneys General

Two First National Plaza

Chicago, Illinois 60603

(312) 372-2345

Of Counsel:

CHARLES W. MURDOCK

Deputy Attorney General

RUSSELL R. EGGERT

Assistant Attorney General

160 N. LaSalle Street

Chicago, Illineis 60601

JOSEPH V. KARAGANIS

Special Assistant Attorney General

150 N. Wacker*Drive

Chicago, Illinois 60606

Printed by Authority of the State of Iinois (P.O. 32416—95—7-5-84)

eit ER AL es thsi oo ar i wi tial she's Ls ctll anlaiall ictiaicr cae Cone lille

i

QUESTIONS PRESENTED

1. Does the federal common law promulgated in Illinois

v. City ef Milwaukee, 406 U.S. 91 (1972) (“Milwaukee I’’),

continue to preempt the application of state law to inter-

state water pollution disputes now that the federal com-

mon iaw itself has been displaced by the Clean Water Act

(“CWA”), 33 U.S.C. §§ 1251, et seq.?

2. Does Milwaukee I hold that the States are constitu-

tionally precluded from policing the pollution of their

own boundary waters when the pollution emanates from

another State? If so, should it be overruled?

3. Does the CWA itself preempt the application of state

law to interstate water pollution disputes? If not, which

State’s choice-of-law rules govern the choice of the ap-

plicable law and which State’s law applies?

4. If, as the Seventh Circuit held, Wisconsin law gov-

erns in the Milwaukee case and Indiana law governs in

the Hammond case, should the Court of Appeals have

applied Wisconsin law to the facts found at trial in Mil-

waukee and have directed the application of Indiana law

on remand to the District Court in Hammond instead of

remanding both cases for dismissal with prejudice?

5. May a sovereign State be compelled to seek redress

for a trespass to its own land or a public nuisance occur-

ring within its own territorial waters in the courts of

another State?

ii

PARTIES INVOLVED

The judgments of the Court of Appeals resolve two dif-

ferent cases—referred to herein as the Milwaukee case

and the Hammond case—which were consolidated for

argument.

The plaintiffs and petitioners in the Milwaukee case are

the sovereign States of Illinois and Michigan. The defen-

dants and respondents are the City of Milwaukee, the

Sewerage Commission of the City of Milwaukee, and the

Metropolitan Sewerage Commission of the County of

Milwaukee—all municipal corporations.

The plaintiffs and petitioners in the Hammond case are

the State of Illinois, and the Metropolitan Sanitary Dis-

trict of Greater Chicago, a municipal corporation. The

defendants and respondents are the Sanitary District of

Hammond and the City of Hammond, both municipal cor-

porations, and the District’s managers and trustees.

iii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ................. i

Ee ii

HE (RPUEUEEMEUEED cnc cccccccccccuncccs iii

TABLE OF AUTHORITIES ................. iv-vii

EEE EE 2

EE rr 2-3

CONSTITUTIONAL PROVISIONS

ee ck chan tacwssescs 3

STATUTORY PROVISIONS

SSIES 4

STATEMENT OF THE CASES ............. 4-10

a Sy ee gi 4-8

a ES Sp aR a 8-10

REASONS FOR GRANTING THE WRIT .... 11-13

I

An Overview Of The Anomalies Created By

The Opinion Of The Court Of Appeals .... 14-18

II.

The Court Of Appeals Has Misread Milwau-

kee I And JJ, And Has Misconstrued The

ak Se aananenes 19-29

EEE SE 19-23

nk ae ea kale 23-24

eS ae adan eT

I eee ee 29

| iv

TABLE OF AUTHORITIES

CASES PAGE

Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981) . 11, 16

Bradford Electric Light Co. v. Clapper, 286 U.S.

carer rire rr er 11, 16

Carboline Co. v. Home Indemnity Co., 522 F.2d

ee SUE EES SD <0 4c hn ans cpnccceenanexes 11

Chicago Park District v. Sanitary District of Ham-

mond, 5380 F.Supp. 291 (N.D. Ill. 1981), appeal

pending, No. 81-2896 (7th Cir.) ............ 16

Chisholm v. Georgia, 2 Dall. 419 (1793) ....... 12, 18

City of Milwaukee v. Illinois (“Milwaukee IT’), 451

8 er ore TT ery eee e Te passim

Colonial Refrigerated Transp., Inc. v. Worshem,

705 F.2d 821 (6th Cir. 1983) .............. 12, 17

Committee for Jones Fall Sewage System v. Train,

539 F.2d 1006 (4th Cir. 1976) (in banc) .... 14

Conley v. Gibson, 355 U.S. 41 (1957) ......... 12

County of Los Angeles v. Davis, 440 U.S. 625

ET sn cGds Goad ches ccdhs ach eebeneaeeanes 6

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

CREE 5 ch bine wecenséiweansabebenesinesess 27

Day & Zimmerman, Inc. v. Challoner, 423 U.S.

DCE Sacekinbesdas shunned eeeresdanosnins 11, 15

Decker v. Fox River Tractor Co., 324 F.Supp. 1089

FF Hh Eee oer ee 11, 17

District of Columbia v. Schramm, 631 F.2d 854

a reer Ve rr ree er ye ee 26

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) .. 11

Foman v. Davis, 371 U.S. 178 (1962) ......... 12, 17

Georgia v. Tennessee Copper Co., 206 U.S. 230

SUDEE: Gia dcddannneeensdchaa seaeebasaxewnnd 13

Goldstein v. California, 412 U. S, 546 (19738) . 21

Vv

Holt Civic Club v. City of Tuscaloosa, 489 U.S.

Bt EE Wikidn ew ohne ekb asus dseesds bene Kes 18

Illinois v. City of Milwaukee (“Milwaukee I’), 406

8 ee ere per ee ey passim

In Re Air Crash Disaster Near Chicago, 644 F.2d

594 (7th Cir. 1981), cert. denied, 454 U.S. 878

PE Wind ChNbN Had RD AR OA hes knee dnes censies . 16

Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487

SEE HAWES Cuan eeWiehx dh cadacidbasuncaae de 11, 15

Maroon v. State Dep’t of Mental Health, 411 N.E.

ee Ge Ss Bee 8b hoes VK ceisinbicin 17

Metropolitan Sanitary District v. United States

Steel Corp., 30 Ill.App.3d 360, 332 N.E.2d 426

(1st Dist.), cert. denied, 424 U.S. 976 (1975) . 18, 19

‘Mianus River Pres. Comm. v. Administrator, 541

ff § & ££: SF Seeger es. tree 26

Michling Barge Lines v. United States, 368 U.S.

Be GUE 50 40bed ck dckogndedecdrawestasee 6

Middlesex County Sewage Authority v. National

Sea Clammers Ass’n, 453 U.S. 1 (1982) . 14, 27-28

Monroe v. Pape, 365 U.S. 167 (1961) ......... 24

Nevada v. Hall, 440 U.S. 410 (1979) .......... 16

Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493

GROWER. £5 05% ccndh 6 tAnes ceneeese hansen sss 12, 18, 20

People ex rel. Scott v. United States Steel Corp.,

40 Ill.App.3d 607, 352 N.E.2d 225 (1st Dist.

EEE: kak nkauncesankatee® RE eT ae ee 13, 19

People of the State of Illinois v. City of Milwau-

kee (‘Milwaukee (7th Cir.)’’), 599 F.2d 151 (7th

Cir. 1979), vacated and remanded, 451 U.S. 304

CU Sn tebe eee ee a ee passim

People of the State of Illinois v. Outboard Marine

Corp., 680 F.2d 473 (7th Cir. 1982) ........ 14, 24

Richards v. United States, 369 U.S. 1 (1962) .. 11, 16

vi

Rohm and Haas Co. v. Adco Chem. Co., 689 F.2d

og rere ere 12, 17

Scott v. City of Hammond, 519 F.Supp. 293 (N.D.

Ill. 1981), rev’d, No. 81-2236 (7th Cir. Mar. 27,

eer ry errr re ey re er rere 3, 14-15

Simpson v. State, 92 Ga. 41, 17 S.E. 984 (1893) . 16

Snow v. Byrne, 449 N.E.2d 296 (Ind.App. 1983) . 11, 17

Sturges v. Crowinshield, 4 Wheat (17 U.S.) 122

PN iss Cactewewhsscae babekuwheceaeetess 22

The Salton Sea Cases, 172 F. 792 (9th Cir.), cert.

denied, 215 U.S. 608 (1909) ............... 16

Town of East Troy v. Soo Line R. Co., 653 F.2d

1123 (7th Cir. 1980), cert. denied, 450 U.S. 922

EE 6 Soc VaXs ob wae 4044. 60RGN WOE SSAERES OSS 12,17

United States v. Darby, 312 U.S. 100 (1941) .. 21

United States Steel Corp. v. Train, 556 F.2d 822

Se Se En 6 bo dines SencueeeCaieeds seus 14, 26

Young v. Masci, 289 U.S. 253 (1933) ...... 11, 16, 19

Younger v. Harris, 401 U.S. 37 (1971) ...... 14, 21-22

CONSTITUTION, STATUTES AND RULES:

United States Constitution

ee ee ME SE. ko a6 6046 0 cabo bebe an 3, 22

I. ds ins pnb tee beeeehin eas 3, 21

Clean Water Act of 1977 (“CWA”), 33 U.S.C. (&

8 a rr ere eee passim

Section 101(aX1), 38 U.S.C. § 1251(aX1) ..... 28

Section 101(b), 33 U.S.C. § 1251(b) ......... 28

Section 312(fX1), 33 U.S.C. § 1822(f(1) ... 25, 27, 29

Section 402, 38 U.S.C. § 1842 ............. 26

Section 402(dX3), 38 U.S.C. § 1842(dX8) ..... 26

Section 402(e), 38 U.S.C. § 1842(e) ......... 26

Section 505(e), 33 U.S.C. § 1365(e) ........ passim

Section 509(bX1Xf), 33 U.S.C. § 1369(>X1Xf) . 26

Vii

Section 510, 33 U.S.C. § 1870 ............ passim

Section 510(1), 33 U.S.C. § 1870(1) ......... 26

Section 510(2), 38 U.S.C. § 1870(2) ......... 26, 27

Federal Water Pollution Control Act of 1956, Pub,

i a he kaa 4

Ne a. Sve ks a ec eteaswbous 2

ee eb benweeebence 2

i en ccc. pee eueheesedaebaet 2, 10

oa cic pea caaauaeeeewas 2

en ks cea kacic buns eenene 18

I I oo hod ca cng ceectekesbebteeene 2

Illinois Environmental Protection Act, Ill.Rev.Stat.

A Ree We es GE GO cn cccnccices dace 4,5

Supreme Court Rules

ee eau wakeedk 13

Federal Rules of Civil Procedure

ET ion lo ccae cwukec eas ccaaceewis 18

ee ee 6 eeu ce mk een kane ek euee 18

LEGISLATIVE HISTORY:

H.R. Rep. No. 92-911, 98rd Cong. 1st Sess. (1971) . 26

Proposed Amendments to the Water Pollution Con-

trol Act: Hearings on S.890 and S.928 Before

a Subcomm. of the Senate Comm. on Public

Works, 85th Cong., Ist Session (Apr. 22, 1955). 27

OTHER:

A. Hamilton, The Federalist, No. 32 (Wright ed.

PEE EAS tAS Wo caeSUh bales bho keel ci anies 21

Moore’s Federal Practice 448.14, 54.62 ....... 18

Wright & Miller, Federal Practice and Procedure,

PE RL PI 0G Kk ans <cbbsseenuan bes 18

IN THE

Supreme Court of the Anited States

OCTOBER TERM 1984

PEOPLE OF THE STATE OF ILLINOIS and

PEOPLE OF THE STATE OF MICHIGAN,

Petitioners,

v.

CITY OF MILWAUKEE, et al.,

Respondents.

PEOPLE OF THE STATE OF ILLINOIS and the

METROPOLITAN SANITARY DISTRICT OF

GREATER CHICAGO,

Petitioners,

v.

THE SANITARY DISTRICT OF HAMMOND, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITE!) STATES COURT OF APPEALS

FOR TKE SEVENTH CIRCUIT

-

PETITiON

Petitioners pray that a writ of certiorari issue to review

the judgments of the United States Court of Appeals for

the Seventh Circuit entered on March 27, 1984, App. at

C-1, D-1, as clarified by the Court’s order of May 29, 1984

denying rehearing, App. at B-1.

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

§ 1254(1). The jurisdiction of the Court of Appeals was

invoked under 28 U.S.C. § 1291 in the Milwaukee case

and under 28 U.S.C. § 1292(b) in the Hammond case. The

jurisdiction of the District Court was invoked under 28

U.S.C. § 1331(a) in both cases, with pendent jurisdiction

being asserted over the state law claims. The Hammond

case, which was filed in state court, was removed to we

eral court under 28 U.S.C. § 1441.

OPINIONS BELOW

The opinion of the Court of Appeals issued on March

27, 1984 is unreported and has been reproduced in the

separately bound Appendices hereto at A-1. The Court’s

order of May 29, 1984, which denied the petitions for re-

hearing and modified the March 27, 1984 opinion, also is

unreported and has been reproduced in the Appendices

hereto at B-1. The Court’s March 27, 1984 opinion and

accompanying judgment orders, App. at C-1, D-1, address

and resolve two separate cases which were consolidated

for argument on appeal.

_

The Milwaukee case has been the subject of two prior

opinions of this Court, Iliinois v. City of Milwaukee, 406

U.S. 91 (1972) (“Milwaukee I’), and City of Milwaukee

v. Illinois, 451 U.S. 304 (1981) (“Milwaukee IT’), as well

as a prior opinion of the Court of Appeals, People of the

State of Illinois v. City of Milwaukee, 599 F.2d 151 (7th

Cir. 1979) (“Milwaukee (7th Cir.)’’), an unpublished, sup-

plemental order of that Court scrutinizing the sufficiency

of the evidence presented at trial, People of the State of

Illinois v. City of Milwaukee, No. 77-2246 (7th Cir. Apr.

26, 1979), and several opinions and orders of the District

Court—all of which have been reproduced in the Appen-

dices hereto.

The opinion of the District Court in the Hammond case

is reported at 519 F.Supp. 293 (N.D. Ill. 1981). It has been

reproduced at F-1 of the Appendices hereto.

CONSTITUTIONAL PROVISIONS INVOLVED

Article VI, Section 2:

“This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shali be made under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.”

Tenth Amendment:

“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.”

=

STATUTORY PROVISIONS INVOLVED

—_——- ——_

The statutory provisions involved are those of the Clean

Water Act (“CWA”), 33 U.S.C. §§ 1251, et seqg., and the

Illinois Environmental Protection Act, Ill.Rev.Stat. ch.

111%, § 1012(a), which have been reproduced in the Ap-

pendices hereto. App. at T-1, U-1.

STATEMENT OF THE CASES

Milwaukee

The Milwaukee litigation began when Illinois sought

leave to file a complaint in the original jurisdiction of this

Court after having spent five years trying to obtain relief

pursuant to the Federal Water Pollution Control Act of

1956, Pub. L. No. 84-660. This Court denied Illinois leave

to file its complaint. Milwaukee I. Though recognizing that

the exercise of its original jurisdiction might be “man-

datory” if the defendants could not be “sued by Illinois

in a federal district court,’ and that an original action

was an “appropriate vehicle for resolving this contro-

versy,” the Court exercised its discretion and remitted

Illinois “to an appropriate district court whose powers are

adequate to resolve the issues” under federal common

law. Milwaukee I, 406 U.S. at 720, 726.

Illinois then filed suit in the United States District

Court for the Northern District of Illinois. Count I

charged the defendants with the creation of a public

nuisance in the Illinois waters of Lake Michigan and

==

sought abatement thereof under federal common law.

Counts II and III sought the same relief under the IIli-

nois Environmental Protection Act, Ill.Rev.Stat. ch. 11114,

§§ 1001, et seg., and the common law of Illinois. The Peo-

ple of the State of Michigan intervened as plaintiffs, also

alleging that defendants had created a public nuisance,

abatement of which was sought under the common law

of the United States and of Michigan.

After years of discovery and pre-trial proceedings

wherein the defendants unsuccessfully sought dismissal for

want of personal jurisdiction and improper venue, App.

at R-1, and on the ground that the 1972 Amendments to

the Federal Water Pollution Control Act had preempted

the application of federal common law, App. at Q-1, a six-

month trial was held. On August 30, 1977 the District

Court entered its findings of fact and conclusions of law

regarding liability. App. at P-1. The Court found for plain-

tiffs on all three counts of the Illinois complaint, after rul-

ing that the defendants’ discharges of untreated and in-

adequately treated sewage had created a public health

hazard in the Illinois waters of Lake Michigan and was

causing the premature eutrophication of the Lake. App.

at P-6-24. The Court entered a final judgment order and

injunction two months later, App. at N-1, based in part on

a stipulation of the parties, App. at O-1.

The Court of Appeals affirmed in part and reversed in

part the District Court’s judgment. Having ‘carefully

reviewed” the evidence, the Court concluded that it sup-

ported the District Court’s finding of liability, whether

tested uxtder a “preponderance” or a ‘‘clear and convinc-

ing”’standard. People of the State of Illinois v. City of

Milwaukee, 599 F.2d 151, 167 (7th Cir. 1979). Indeed, in

an unusual 38-page supplemental order scrutinizing the

mm

evidence, the Court said the defendants could not even

“seriously contend” that the evidence was insufficient to

support the District Court’s finding that defendants dump

significant amounts of pathogen-containing sewage into

Lake Michigan. People of the State of Illinois v. City of

Milwaukee, No. 77-2246, at B-2 (7th Cir. Apr. 26, 1979),

App. at K-2. The Court also concluded that, with certain

exceptions, the injunctive relief granted to abate the nui-

sance was warranted. 599 F.2d at 169-77. The judgment

of the Court of Appeals was founded solely on federal

common law; the Court did not pass on the state law

claims. 599 F.2d at 177 n.53.

This Court granted defendants’ petition for certiorari,

445 U.S. 926 (1980), and ruled that the federal common

law created by Milwaukee I had been displaced by the

1972 Amendments to the Federal Water Pollution Con-

trol Act. Milwaukee II. This Court then “vacated” the

judgment of the Court of Appeals and remanded “the

case” for further proceedings without addressing whether

state law was available as a basis for relief. 451 U.S. at

310 n.4, 332. Three Justices dissented, observing that the

‘Gnevitable” effect of Milwaukee II was to ‘“‘encourag{e]

recourse to state law.” 451 U.S. at 353 (Blackmun,

Marshall & Stevens, JJ, dissenting). Three weeks later,

the Court denied, without comment or dissent, the then-

moot cross-petition that had been filed by Illinois, 451 U.S.

at 982, which had sought reinstatement of the judgment

entered by the District Court that was reinstated in-

stanter when this Court vacated the judgment of the

Court of Appeals. See County of Los Angeles v. Davis,

440 U.S. 625, 634 n.6 (1979); Michling Barge Lines v.

United States, 368 U.S. 324, 329 n.11 (1961).

On remand, Illinois argued that the District Court’s

judgment could and should be affirmed on the basis of

a

either Illinois or Wisconsin law. See 33 U.S.C. 8§ 1365(e),

1370. Defendants contended that Milwaukee J had held, as

a federal constitutional matter, that no State’s law could

be applied.

The Court of Appeals reversed and remanded Milwau-

kee for dismissal. The Court reasoned that, in light of

Milwaukee I and II, “federal law must govern” except

to the extent that the CWA “authorizes resort to state

law.” App. at A-17. Construing Sections 505(e) and 510

of the CWA, 33 U.S.C. §§ 1365(e), 1370, as preserving the

jurisdiction only of “the state in which the discharge

occurs,” App. at A-24, the Court reversed and remanded

for dismissal ostensibly because the complaint filed in

1972 had sought relief under Illinois common and stat-

utory law, which could not be applied, and not under the

CWA or Wisconsin law. App. at A-24.

Illinois and Michigan petitioned for rehearing and

rehearing in banc. They asserted that there was no basis

for the “federal common law” choice-of-law rule the Court

of Appeals had effectively created and reiterated their

contention that they were entitled to relief under Wis-

consin law even assuming, arguendo, that Illinois law

could not be applied.

By a 4-3 vote, the Court of Appeals denied the peti-

tion on May 29, 1984. Two judges—whose votes could have

altered the outcome—declined to participate. In its order

of denial, the Court of Appeals noted and denied without

xplanation the petition’s request that the judgment be

modified to permit further proceedings on remand under

Wisconsin law in lieu of dismissal. App. at B-3. It did not

acknowledge the petition’s request. that the Court of Ap-

peals itself apply Wisconsin law, if applicable. The Court’s

order also amended footnote 2 of its opinion so as to de-

ay

lete its reference to “the choice of applicable law in inter-

state water pollution litigation within the United States,”

App. at A-16, and to make clear that nothing would pre-

clude the application of Wisconsin law in a suit filed in

a state or federal court located “‘in’”’ Wisconsin. App. at

B-3.

So, after fourteen years of litigation, Illinois and Mich-

igan were left without a remedy for a wrong, not because

they did not prove that the defendants had created a

public health hazard in the Illinois waters of Lake Michi-

gan and were eutrophying the Lake, App. at P-15, 23-24,

but rather because of a pleading technicality contained in }

a complaint filed in 1972 under the aegis of Milwaukee I.

Every time a hard rain falls on Milwaukee, millions of

gallons of untreated and inadequately treated sewage are

flushed by the defendants from the Milwaukee sewers into

Lake Michigan. That was true back in 1970 when Illinois

first sought relief from this Court. It is still true today.

Hammond

During the summer of 1980, human fecal matter and in-

dustrial wastes began washing up on the shores of

Chicago beaches. This caused a public health emergency

in Illinois requiring the closing of Chicago beaches 21

times during that summer; tens of thousands of dollars

in clean-up costs being incurred by Illinois municipalities;

and hundreds of thousands of people being left without

a place to sun bathe or to cool off. Ultimately, the source

was located—the Hammond, Indiana “sanitary”? sewer

system.

Illinois and the MSD then jointly filed a five-count com-

plaint in the Circuit Court of Cock County, Illinois which

sought injunctive and other relief under the Illinois En-

olin

vironmental Protection Act (Counts I and II), the federal

common law of nuisance (Count III), the Illinois Public

Nuisance Act (Count IV), and the Illinois common law of

nuisance and trespass (Counts IV and V). The case was

removed to the United States District Court for the

Northern District of Illinois on the ground that the federal

common law claim provided federal question jurisdiction

and pendent jurisdiction existed over the state law claims.

After this Court’s ruling in Milwaukee II, the defen-

dants moved to dismiss the complaint, as well as a com-

plaint filed by a private citizen in a related diversity case

which had been consolidated for trial, on the ground that

the complaints simply failed to state a claim for relief.

The District Court agreed that the federal common law

claim could not stand in light of Milwaukee II but declined

to dismiss the pendent state law claims. Scott v. City

of Haramond, 519 F.Supp. 293 (N.D. Ill. 1981). The Court

reasoned that, since “there [now] is iu separate [federal]

common law but only federal statutory law, the [CWA]

must be examined to determine whether Congress in-

tended to make these pollution control matters solely a

federal question.” Jd. at 298. Finding no Congressional

intent to preempt the application of state law and “‘noth-

ing in the Act [or] its legislative history that indicates

a different result should be reached when considering an

out-of-state polluter,” the Court observed:

“the only remaining determination is which state law

applies. Hammond has never really disputed, and

there can be no dispute, that Illinois choice of law

rules apply and that they would determine [Illinois

to be the substantive law of the case.” Id.

Noting, however, that questions of “first impression” were

presented in the wake of Milwaukee II, the District Court

certified its ruling for interlocutory appeal under 28

=~ os

U.S.C. § 1292(b). App. at F-13-14. Timely application was

made therefore and granted by the Court of Appeals,

which consolidated the case with Milwaukee. App. at E-2.

On appeal, the District Court’s interlocutory order deny-

ing the defendants’ motion to dismiss for failure to state

a claim to relief was reversed, and Hammond was re-

manded with express directions for dismissal. Notwith-

standing plaintiffs’ contentions that Indiana’s lex loci

delicto choice-of-law rule would dictate application of IIli-

nois substantive law, and that plaintiffs were entitled to

seek relief under Indiana substantive law in any event,

the Court of Appeals denied rehearing by a 4-3 vote and

declined to alter its judgment to permit further pro-

ceedings on remand under Indiana law.

Once again, a sovereign State was denied a remedy for

a wrong, not because “it appears beyond doubt that the

plaintiff [could] prove no set of facts in support of [its]

claim which would entitle [it] to relief,” Conley v. Gib-

son, 355 U.S. 41, 45-46 (1957), but rather because of a

pleading technicality, easily cured on remand by amend-

ment of the complaint, if necessary.

a ee

REASONS FOR GRANTING THE WRIT

The Court of Appeals has misread Milwaukee I, misap-

prehended the effect of Milwaukee II, misconstrued Sec-

tions 505(e) and 510 of the CWA, 33 U.S.C. §§ 1365(e),

1370, and created a “federal common law”’ choice-of-law

rule for interstate tort disputes that is in clear conflict

with Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3

(1975), Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487

(1941), and Erie R. Co. v. Tompkins, 304 U.S. 64 (1938),

as well as a host of this Court’s decisions which make

clear that no constitutional barrier to the application of

Illinois law in these cases arises from the fact that the

pollution crossed state lines. E.g., Allstate Ins. Co. v.

Hague, 449 U.S. 302, 308-09 & n.10, 312-13 & n.17, 317

& n.23 (1981); Richards v. United States, 369 U.S. 1, 15

(1962); Young v. Masci, 289 U.S. 253, 258-59 (1933); Brad-

ford Electric Light Co. v. Clapper, 286 U.S. 145, 156

(1932).

Moreover, even if the Court were correct in holding that

only Wisconsin law can apply in Milwaukee and only In-

diana law can apply in Hammond, the applicable law

would be the whole law of Wisconsin and Indiana,

Richards v. United States, 369 U.S. 1, 11 (1962), including

choice-of-law rules which would dictate the application of

Illinois substantive law. E.g., Snow v. Byrne, 449 N.E.2d

296, 298 (Ind. App. 1983) (lex loci rule governs); Decker

v. Fox River Tractor Co., 324 F.Supp. 1089, 1090-91 (E.D.

Wisc. 1971) (Wisconsin uses five-factor test with a “false

conflict” analysis and presumption in favor of the law of

the forum). The Court’s failure even to address the choice-

of-law issue was clear error. See Carboline Co. v. Home

Indemnity Co., 522 F.2d 368, 368 (7th Cir. 1975).

eile

And, even if the Court of Appeals were correct in hold-

ing that Illinois law could not be applied, the Court com-

mitted clear error in remanding Milwaukee and Ham-

mond for dismissal with prejudice. If the law of Wisconsin

governs in Milwaukee, the Court should have applied it

to the facts found at trial or instructed the District Court

to do so. E.g., Colonial Refrigerated Transp., Inc. v.

Worsham, 705 F.2d 821, 825-28 (6th Cir. 1983); Rohm and

Haas Co. v. Adco Chem. Co., 689 F.2d 424, 428-29, 434

(3d Cir. 1982). The public nuisance proven at trial in Mil-

waukee was abatable under Wisconsin law, even if not

under federal common law or Illinois law. See, e.g., Mil-

waukee (7th Cir), 599 F.2d at 163 & n.21; Town of East

Troy v. Soo Line R. Co., 653 F.2d 1123, 1128 (7th Cir.

1980) (applying Wisc. nuisance law), cert. denied, 450 U.S.

922 (1981). In Hammond, the proper disposition was to

remand with instructions to apply Indiana law on remand,

if applicable, not for dismissal with prejudice. E.g., Foman

v. Davis, 371 U.S. 178, 181 (1962); Conley v. Gibson, 355

U.S. 41, 45-46, 48 (1957). The Court’s judgments of dis-

missal amount to abrogation by judicial fiat of the “notice

pleading” theory on which the Federal Rules of Civil Pro-

cedure are based.

Finally, insofar as the Court’s judgments of dismissal are

predicated on the notion that an action for abatement of

a public nuisance under state law must be litigated in

courts located “‘in” the State in which the discharges oc-

curred, see App. at B-3, its judgments and opinion are

in square confict with decisions of this Court which make

clear that a sovereign State cannot be compelled to seek

redress of its sovereign rights in the courts of another

State. E.g., Ohio v. Wyandotte Chem. Corp., 401 U.S. 493,

500 (1971); Chisholm v. Georgia, 2 Dall. 419, 475-76 (1793).

In this respect the Court’s opinion also conflicts with this

= =

Court’s prior rulings in Milwaukee itself that the District

Court had personal jurisdiction over all parties and that

venue was proper in the Northern District of Illinois. Mil-

waukee II, 451 U.S. at 312 n.5. Ipso facto, the District

Court had power to grant the relief it did, under which-

ever State’s law was applicable.

The questions presented by this petition will not go

away. A nuisance is a nuisance is a nuisance. Congress

having chosen not to preempt the application of state law

as a supplement to the federal statutory scheme, 33

U.S.C. §§ 1365(e), 1370, the States will continue to seek

redress of their quasi.sovereign ecological rights, Georgia

v. Tennessee Copper Co., 206 U.S. 230, 237-39 (1907),

either through original proceedings in this Court, 28

U.S.C. § 1251(aX1), or in their own state courts, which may

not be “persuaded” by the “logic” of any lower federal

courts whose opinions they are not bound to follow. The

decision of the Court of Appeals is in square conflict with

opinions of the Illinois appellate courts permitting resort

to state law remedies extrinsic to the federal statutory

scheme against interstate, as well as intrastate, polluters.

E.g., People ex rel. Scott v. United States Steel Corp., 40 Ill.

App.3d 607, 352 N.E.2d 225 (ist Dist. 1976); Metropolitan

Sanitary District v. United States Steel Corp., 30 IIl.

App.3d 360, 332 N.E.2d 426 (1st Dist.), cert. denied, 424

U.S. 976 (1975). This, alone, warrants a grant of certiorari.

See Sup. Ct. R. 17(a).

iin

AN OVERVIEW OF THE ANOMALIES

CREATED BY THE

OPINION OF THE COURT OF APPEALS

The opinion of the Court of Appeals raises some dis-

turbing questions about the character of our federal

system and the source of the laws which govern it. It

is, of course, of the very essence of “Our Federalism,”

Younger v. Harris, 401 U.S. 37, 44 (1971), to have both

federal and state sovereigns exervising concurrent jurisdic-

tion over the same subject matter. And, sometimes,

several States may exercise concurrent jurisdiction over

the same subject matter; here, the same body of water.

In a federal system of government, collision of state in-

terests is unavoidable, and conflict of state laws is in-

evitable. How should the conflicts be resolved by a fed-

eral court?

For better or worse, this Court has ruled that there

is no federal common law of interstate pollution.

Milwaukee II. And, Congress has authorized resort to

“any” State’s law as a supplement to the CWA’s stat-

utory scheme. 33 U.S.C. §§ 1365(e), 1870. Some State’s

law thus governs the public nuisance and trespass claims

extrinsic to the Act asserted herein.’

1 Though the Court of Appeals intimated that the CWA remedies

are exclusive, App. at A-20 n.5, it was forced by the statutory

text and its legislative history to conclude ‘that both damages and

injunctive relief are available at state law in addition to any relief

obtainable under the Act. App. at A-21-22 & nn.6-7. Accord, Middle-

sex County Sewerage Auth. v. Nat'l Sea Clammers Ass’n., 453

U.S. 1, 16 n.26 (1981); People of the State of Illinois v. Outboard

Marine Corp., 680 F.2d 478, 479 n.9 (7th Cir. 1982), page citing

with a l, Scott v. City of Hammond, 519 F.Supp. 292, 298

(N.D. Ill. 1981); U.S. Steel Corp. v. Train, 556 F.2d 822, 830 (7th

Cir. 1977); Committee for Jones Fall Sewage System v. Train, 539

F.2d 1006, 1009 & n.9 (4th Cir. 1976) (in banc).

=i

When state law governs, the federal courts must follow

the applicable state rules of decision. Erie R. Co. v.

Tompkins, 304 U.S. 64 (1938). And, in determining which

State’s law applies, the federal courts must use the choice-

of-law rules of the State in which the action is filed. Day

& Zimmerman, Inc. v. Challoner, 423 U.S. 3 (1975);

Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941).

Notwithstanding Milwaukee IJ and Day, the Court of

Appeals says the brooding omnipresence of federal com-

mon law is still with us. It has‘ruled as a matter of

federal law? that, though Illinois could have invoked the

common and statutory law of Wisconsin in Milwaukee and

the common and statutory law of Indiana in Hammond,

Illinois “cannot apply its own state law to out-of-state dis-

charges.” App. at A-16 (emphasis added). Why not? After

all, those out-of-state discharges created a public nuisance

in Illinois.

Milwaukee I does not hold that ‘Illinois law could not

be used” but Wisconsin law could be. App. at 22-24.

Moreover, Congress has authorized resort to “any” State’s

more stringent law as a supplement to the remedies avail-

able under the CWA. 33 U.S.C. §§ 1365(e), 1870. The

governing choice-of-law rules would dictate application of

Illinois law. Scatt v. City of Hammond, 519 F.Supp. 293,

298 (N.D. Ill. 1981). And, there is no constitutional barrier

to the application of Illinois law. The process of Illinois

2 Since there no longer is any substantive body of federal com-

mon law in the field of interstate water pollution, the Court’s

statement that “we think federal law must govern in this situa-

tion,” App. at A-17, can only be interpreted as meaning that,

notwithstanding the evisceration of federal common law b

Milwaukee II, there remains a “federal common law”’ choice-of-

law rule for interstate water pollution disputes. Compare App. at

A-16 n.2, with App. at B-3.

=

courts has extraterritorial reach and gives them author-

ity over out-of-state defendants, including municipalities

of a sister State, or even a sister State itself. Milwaukee

I], 451 U.S. at 312 n.5; Nevada v. Hall, 440 U.S. 410

(1979). And, “the potential conflict and confusion’”’ that the

Court of Appeals thought would result from the extra-

territorial reach of Illinois law,? App. at A-22, is simply

not a constitutional problem. E.g., Allstate Ins. Co. v.

Hague, 449 U.S. 302, 308-09 & n.10, 312-138 & n.17, 317

& n.23 (1981); Nevada v. Hall, 440 U.S. 410, 421-24 (1979);

Richards v. United States, 369 U.S. 1, 15 (1962); Brad-

ford Electric Light Co. v. Clapper, 286 U.S. 145, 156

(1932); In Re Air Crash Disaster Near Chicago, 644 F.2d

594 (7th Cir. 1981), cert. denied, 454 U.S. 878 (1982).

Perhaps even more puzzling than the Court’s creation

of a “federal common law” choice-of-law ruie for inter-

state water pollution disputes in the wake of Milwaukee

II was the Court’s studied refusal to apply the law that

3 The Court of no appears to believe erroneously that no

“activity occurr{ed] within the confines of [Illinois] boundary

waters.” App. at A-22. Where does the Court think the public

nuisances and trespasses “‘occurr{ed]’’? Id. Who does the Court of

Appeals think paid to clean up the mess that closed Chicago

beaches 21 times during the summer of 1980? Chicago Park

District v. Sanitary District of Hammond, 530 F.Supp. 291 (N.D.

Ill. 1981) (no damages available), appeal pending, No. 81-2896 (7th

Cir.). In the eyes of the law, the defendants, through the agency

of Lake Michigan, have “acted” in Illinois just as surely as if they

had dumped their refuse from a plane ‘lying over Illinois or had

driven their garbage trucks into Illinois. E.g., Young v. Masci,

289 U.S. 253, 258-59 (1933) (“A person who sets in motion in one

state the means by which injury is inflicted in another may, con-

sistently with the due process clause, be made liable for that in-

jury whether the means employed be a responsible agent or an

irresponsible instrument”’); Salton Sea Cases, 172 ¥. 792, 814

(9th Cir.), cert. denied, 215 U.S. 603, 606 (1909), quoting Simpson

v. State, 92 Ga. 41, 17 S.E. 984, 985 (1893).

~~ =

it had declared applicable.* If, as the Court of Appeals

ruled, the law of Wisconsin governed in Milwaukee and

the law of Indiana governed in Hammond, why did the

Court not apply the law of Wisconsin to the facts found

at trial in Milwaukee? E.g., Colonial Refrigerated Transp.,

Inc. v. Worsham, 705 F.2d 821, 825-28 (6th Cir. 1983);

Rohm and Haas Co. v. Adco Chem. Co., 689 F.2d 424, 428-

29 (8d Cir. 1982). And, in lieu of remanding Hammond for

dismissal, why did the Court not simply direct the applica-

tion of Indiana law on remand? E.g., Foman v. Davis, 371

U.S. 178, 181 (1962). That the complaints had invoked the law

of Illinois did not warrant their dismissal if another State’s

law applied. Invocation of the incorrect law or legal theory

is not cause for dismissal of a complaint under the govern-

ing Federal Rules of Civil Procedure. Wright & Miller,

4 In its brief on remand and its petition for rehearing Illinois

argued: (1) that Illinois choice-of-law rules and Illinois substantive

law governed in Milwaukee; (2) that even Wisconsin choice-of-law

rules would dictate application of Illinois substantive law; and (3)

that, even if they did not, relief could and should be granted under

the law of Wisconsin in any event. Thus, the refusal of the Court

of Appeals even to respond to the arguments that Wisconsin

choice-of-law rules would dictate application of Illinois substantive

law, see, e.g., Decker v. Fox River Tractor Co., 324 coe 1089,

1090-91 (E.D. Wise. 1971), and that relief could and should be

granted under the common and statutory law of Wisconsin in any

event, see, ¢.g., Town of East Troy v. Soo Line R. Co., 653 F.2d

1123 (7th Cir. 1980), cert. denied, 450 U.S. 922 (1981), could not

have been an oversight.

In Hammond, the question of the applicable law was clear-cut

because Indiana still uses a “lex loci delicto” approach to choice-

of-law in tort cases that clearly would dictate the application of

Illinois law. E.g., Snow v. Byrne, 449 N.E.2d 296, 298 (Ind. App.

198%); Maroon v. State Dept. of Mental Health, 411 N.E.2d 404

(Ind. App. 1980). And, given the procedural posture of Hammond,

dismissal was out of the question. Given subject-matter jurisuic-

tion over the case and personal jurisdiction over the parties, there

is no reason why the District Court could not apply Indiana law,

if applicable, on remand. |

pili.

Federal Practice and Procedure § 1357, at 601-02. Indeed,

Rule &(a) does not even require a plaintiff to state the

legal theory of his case or the governing law. Moore’s

Federal Practice 8.14; Wright & Miller, Federal Prac-

tice and Procedure § 1219. And, Rule 54(c) requires the

court to grant a plaintiff the relief to which the applicable

law entitles him on the basis of the facts pleaded and

proved at trial even if the correct relief has not been

sought, or has been sought under the wrong legal theory,

or under the wrong State’s law. Holt Civi:: Club v. City of

Tuscaloosa, 439 U.S. 60, 65-66 (1978); Moore’s Federal Prac-

tice { 54.62; Wright & Miller, Federal Practice and Pro-

cedure § 2664. The Court’s judgments of dismissal simply

cannot be harmonized with the “notice pleading” theory

on which the Federal Rules of Civil Procedure are based.

It may be that the Court’s judgments of dismissal were

predicated on the notion that both it and the District

Court were powerless to apply the governing state law

because they were not located “‘in’’ the territory of the

State whose law applied. See App. at B-3. This, of

course, makes no sense. There is no “federal common

law” venue rule for interstate tort disputes:which re-

quires Illinois to seek relief in courts located in Wis-

consin and Indiana in conmtraventidn of the venue rules

enacted by Congress. 28 U.S.C. § 1891. But see App. at

B-3. Indeed, this Court already has ruled in Milwaukee

that venue was proper in the Northern District of Illi-

nois. Milwaukee II, 451 U.S. at 312 n.5. And, it may well

have been “mandatory” for thic Court to grant the orig-

inal petition filed by Illinois, Milwaukee I; 406 U.S. at

98, if the Court’s declination of original jufisdiction neces-

sarily would have had the effect of compelling Illinois to

seek relief in the courts of another State. E.g., Ohio v.

Wyandotte Chem. Corp., 401 U.S. 493, 500 (1971); Chisholm

v. Georgia, 2 Dall. 419, 475-76 (1793).

oii

Il

THE COURT OF APPEALS HAS MISREAD

MILWAUKEE I AND II,

AND HAS MISCONSTRUED THE CWA

Milwaukee I

In Milwaukee I this Court said that “it is federal, not

state, law that in the end controls the pollution of in-

terstate or navigable waters.” 406 U.S. at 102 (emphasis

added). This teaching, which assumes that the States have

inherent power to police the pollution of their boundary

waters in the first instance, is consistent with long-

standing Supremacy Clause principles used to resolve

any conflicts created by the exercise of concurrent

lawmaking powers. While it existed, federal common law

may have governed to the exclusion of state law. But con-

tinuing reliance on Milwaukee I and its progeny is

misplaced. The body of federal common law which may

have preempted the application of state law no longer

exists. Milwaukee II. And, if it no longer exists, it sure-

ly cannot preempt the application of any State’s law.

There is no constitutional magic in the fact that pollu-

tion crosses state lines. This does not preclude the applica-

tion of any interested State’s law. E.g., Young v. Masci,

289 U.S. 253, 258 (1933). And, Milwaukee I certainly does

not hold that, in the absence of a preemptive body of

federal law, whether common or statutory, the States

simply lack power to police the pollution of their bound-

ary waters, whether the pollution is of interstate or intra-

state origin.5 If Milwaukee I were construed as so hold-

5 If Illinois lacks power to police the pollution of interstate or naviga-

ble waters as a constitutional matter, so does Indiana and Wisconsin.

But see Milwaukee II, 451 U.S. at 327-28; People ex rel. Scott v.

United States Steel Corp., 40 Ill. App.3d 607, 352 N.E.2d 225 (1st Dist.

1976); Metropolitan Sanitary District v. United States Steel Corp.,

(Footnote continued on following page)

—20—

ing, sub silentio, it was wrongly decided and should be

overruled. As this Court said in Milwaukee II, there

never was any doubt that, prior to the creation of federal

common law in Milwaukee I, “state common law con-

trol[led}’ the interstate pollution of boundary waters.® 451

U.S. at 327 n.19 (emphasis in original). And, if federal

common law no longer governs, there now is nothing to

prevent the States from exercising their “historic police

power” in this field unless it was “the clear and mani-

fest purpose of Congress” to preempt state law in enact-

ing the CWA. Milwaukee II, 451 U.S. at 316.

5 continued

30 Ill.App.3d 360, 332 N.E.2d 426 (1st Dist.), cert. denied, 424 US.

976 (1975). And, if no State has such power, what criminal sanc-

tions are available if someone were to release toxic poisons into

these waters that infect the drinking water supply of a State and

cause the deaths of its citizens? Would Illinois, in a case in which

its citizens and boundary waters were affected, be precluded from

bringing homicide charges and seeking the death penalty against

the culprits under “its own state law,” App. at A-16, simply be-

cause the poisons were released from the shores of Wisconsin or

Indiana? Or is the reach of its civil law not coextensive with the

veach of its criminal law?

6 In Ohio v. ya yy Chemicals Corp., 401 U.S. 493 (1971), this

Court, citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), re-

mitted Ohio to its own state courts with the observation that

“an action such as this, if otherwise cognizable in federal district

court [on the basis of diversity], would have to be adjudicated

under state law.” 401 U.S. at 498 n.3 (emphasis added). With the

creation of a federal common law remedy “this statement,” of

course, had to be overruled. Milwaukee II, 451 U.S. at 327 n.19.

Because federal question jurisdiction then could be invoked on the

basis of a claim arising under federal law to which Erie was in-

applicable, actic.is to abate an interstate nuisance no longer would

“have to be adjudicated under state law.” 401 U.S. at 498 n.3 (em-

phasis added). In overruling this particular statement, however,

Milwaukee I does not impeach the teaching of Wyandotte and two

centuries of American history that the States have inherent power

to police the pollution of their boundary waters in the absence of

a preemptive body of federal law.

lie.

It may be that the continued reliance placed on Mil-

waukee I by the Court of Appeals is premised on the un-

stated assumption that this Court has exercised some

previously unknown constitutional power to effect an ir-

reversible displacement of state law or somehow to erase

state law out of existence simply by chcosing to apply

federal common law in lieu of the otherwise applicable

state law. The Court says, for example, that there was

no Illinois law for Congress to “save” because it had been

preempted by Milwaukee I. App. at A-22. Such a view

abandons almost two hundred years of American constitu-

tional jurisprudence and, if adopted by this Court, would

stand the basis of “Our Federalism” on its head. Younger

v. Harris, 401 U.S. 37, 44 (1971).

The national government is one of enumerated powers.

The reserved lawmaking powers of the States, however,

do not derive from, or depend for their existence upon,

the Constitution of the United States. At least so far as

that Constitution is concerned, they are inherent. U.S.

Const. amend. X; United States v. Darby, 312 U.S. 100,

124 (1941). Moreover, the police power of the States is

plenary in the scope of its reach excepting in areas “ez-

clusively delegated” to the national government by the

text of the Constitution. Goldstein v. California, 412 U.S.

546, 552-53 (1973) (emphasis in original), quoting A.

Hamilton, The Federalist No. 32, at 241 (Wright ed. 1961).

Even in areas in which the Constitution confers power

on the national government, the police power of the States

almost always coexists and may be exercised until the na-

tional government not only steps into the field but also

affirmatively declares its “clear and manifest’’ purpose to

preempt the concurrent exercise of state power. Milwau-

kee II, 451 U.S. at 316.

If a genuine conflict is created by the concurrent exer-

cise of lawmaking power, the Supremacy Clause comes

29

into play and commands that federal law control. U.S.

Const. Art. VI, §2. Even then, however, the police power

of the States to act in the field continues to exist because

it does not derive from the Constitution of the United

States in the first place. And, if and when a body of

federal law governing the field is repealed or otherwise

displaced, the disability that the Supremacy Clause im-

poses on the exercise of the inherent police power of the

States dissipates. This is long settled constitutional doc-

trine. E.g., Sturges v. Crowinshield, 4 Wheat (17 U.S.)

122, 196 (1819).

If the inevitable effect of Milwaukee I is to preclude

the application of any State’s law even in the absence of

federal common law and even though Congress has au-

thorized resort to state law in the very statute which

Milwaukee II says has displaced the federal common law,

Milwaukee I must be overruled as inconsistent not only

with the foundations of “Our Federalism,” Younger v.

Harris, 401 U.S. 37, 44 (1971), but also with separation

of powers considerations dictating that Congress have the

final say on the displacement of state law. 33 U.S.C.

§§ 1365(e), 1379.

Milwaukee I no more bespeaks any State’s lack of

power to police the pollution of its boundary waters in

the absence of federal common law than would Congress’s

decision to enact a statute in a sphere previously subject

only to state regulation. To be sure, when federal law is

promulgated, it may have constitutional consequences

under the Supremacy Clause. It does not follow, however,

that the promulgation of federal law is based on a State’s

lack of power to regulate the subject matter in the first

place, or that such power cannot again be exercised once

any superseding body of federal law has heen displaced.

Whatever preemptive effect Milwaukee I had on Illi-

nois law, it had the same effect on Wisconsin and Indiana

—23—

law. And whatever preemptive effect Milwaukee I had

on state law generally, its preemptive effect dissipated

upon the demise of federal common law in Milwaukee II.

So now, unless the CWA itself preempts the application

of all state law as a supplement to the federal statutory

scheme, no State can be disabled from policing the pollu-

tion of its boundary waters.

Milwaukee II

Milwaukee II teaches that this Court must now look

to the statute which preempted the federal common law,

not to Milwaukee I, to determine whether any State is

preempted from exercising its inherent power to police

the pollution of its boundary waters. As the Supreme

Court emphasized in Milwaukee II,

“(t]he enactment of a federal rule in an area of na-

tional concern, and the decision whether to displace

state law in doing so, is generally made not by the

federal judiciary, purposefully isolated from demo-

cratic pressures, but by the people through their

elected representatives in Congress.” 451 U.S. at 312-

13.

Throughout Milwaukee II the Court emphasized its deci-

sion was based solely on considerations respecting the

separation of powers between the legislative and judicial

branches of the national government. The quite different

considerations respecting the division of powers between

the national government and the States did not come into

play. 451 U.S. at 316-17 & n.9. Though the Court con-

cluded that the statute had occupied the field to the ex-

clusion of judicially created federal law, the Court also

went out of its way carefully to emphasize that ‘‘the com-

prehensive character of a federal statute” is “an insuffi-

cient basis to find pre-emption of state law” and, indeed,

is not even “relevant’’ to the question whether state law

—24— .

can be concurrently applied. Compare id. at 319 n.14, with

App. at A-18 (“comprehensive’’).

Because Milwaukee II makes plain that Congress has

the last word on the displacement of state law, the ques-

tion whether the historic power of any State to police the

pollution of its boundary waters has been preempted now

turns on whether Congress indicated a “clear and mani-

fest” purpose to preempt it. 451 U.S. at 316. Congress

had no such purpose or intent. Indeed, it expressly author-

ized and encouraged resort to “any’’ State’s law as a sup-

plement to the CWA’s administrative scheme. 33 U.S.C.

§§ 1365(e), 1370.

The CWA

This Court will search the CWA in vain for affirmative

evidence of a clear and manifest intent to preempt any

State’s historic power to police the pollution of its bound-

ary waters. And, the assumption mandated by Milwaukee

II as the “start{ing]” point for preemption analysis would

be rendered meaningless if the mere existence of a fed-

eral administrative remedy, whether adequate or not,

were construed as affirmative evidence of a “clear and

manifest’”’ purpose to preempt concurrent state law rem-

edies. 451 U.S. at 316; cf. Monroe v. Pape, 365 U.S. 167,

183 (1961).

The opinion of the Court of Appeals concedes, as it

must, that Illinois may apply its own law to intrastate

polluters of Lake Michigan and other interstate waters,

and that the administrative and other remedies available

against intrastate polluters under the CWA do not

preclude resort to other state law remedies. App. at

A-21-22 & nn. 6-7; People of the State of Illinois v. Out-

board Marine Corp., 680 F.2d 473, 479 n.9 (7th Cir. 1982).

The text of the statute does not even support, let alone

compel, the anomalous conclusion that Congress intended

- =

to preempt resort to Illinois state law remedies against

interstate polluters but not against intrastate polluters,

or that Congress intended to preempt the application of

Illinois law, but not Wisconsin or Indiana law, in the cir-

cumstances of these cases. When Congress intended to

preempt any State’s law it declared its intent in “clear

and manifest” terms. Milwaukee I], 451 U.S. at 316. E.g.,

33 U.S.C. § 13822(fX1) (“no State . . . shall’’). There is no

comparable language of preemption in § 402 or in any

other of the statutory provisions referenced by the Court

of Appeals. See App. at A-18-20. Indeed, Congress af-

firmatively authorized the adoption and enforcement of

“any” State’s more stringent law in § 510. Congress chose

diversity, not uniformity:

“Except as expressly provided in this Act, noth-

ing in this Act shall (1) preclude or deny the right

of any State or political subdivision thereof or in-

terstate agency to adopt or enforce (A) any stand-

ard or limitation respecting discharges of pollutants,

or (B) any requirement respecting control cr abate-

ment of pollution; except that if an effluent limita-

tion, or other limitation, effluent standard, prohibi-

tion, pretreatment standard, or standard of perform-

ance is in effect under this Act, such State or politi-

cal subdivision or interstate agency may not adopt

or enforce any effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment standard,

or standard of performance which is less stringent

than the effluent limitation, or other limitation, ef-

fluent standard, prohibition, pretreatment standard,

or standard of performance under this Act; or (2) be

construed as impairing or in any manner affecting

any right or jurisdiction of the States with respect

to the waters (including boundary waters) of such

States.” 33 U.S.C. § 1370 (emphasis added).

The Court of Appeals reads §510 as preserving the

right of the States to adopt more stringent regulations

only for discharges occurring within their boundaries. App.

—26—

at A-21-22. This strained, result-oriented “construction”

is refuted by the plain language of § 510. In § 510(1) Con-

gress authorized adoption and enforcement of the “any”

State’s more stringent standards. 33 U.S.C. § 1370(1). In

§ 510(2) Congress made explicit that “nothing” in the Act,

including the discharge-permit process established by § 402,”

7 The observation of the Court of Appeals that the permit issu-

Ss established by § 402 “seems now to be the appropriate

fe forum for adjusting the competing claims of states in the

environmental quality of interstate waters,” App. at A-20 n.5 (em-

phasis added), is based on a fundamental misapprehension of the

statutory scheme. In administering permit programs pursuant to

§ 402, the States are acting in their own right and under color

of their own law, not as “agents” of the federal government or

the EPA. Mianus River Pres. Comm. v. Administrator, 541 F.2d

- 899, 906 (2d Cir. 1976). The permits they issue are not “federal’’

permits in any sense of the word, and the state administrative

agencies which issue the permits are not ‘federal’ forums in any

sense of the word. Jd. at 905 (“permits granted by States under

section 402 are not Federal permits’’), quoting H.R. Rep. No.

92-911. Though the Administrator of the EPA has discretion to

review any permit issued by any State, nothing in the Act requires

him to do so; he may waive his right to do so; and his failure

to object to »r veto a State-issued permit is not even an “action”’

of the Administrator reviewable in any federal court. Jd. at 906-10.

Indeed, as the Court of Appeals itself has observed, it is not even

clear whether the Administrator of the EPA has authority to veto

a permit at the behest of an objecting State as long as the per-

mit is adequate to ensure compliance with the water quality stand-

ards set by the issuing State. 599 F.2d at 160.

Even if Illinois were to participate in the permit-issuing process

of Wisconsin, it would be unable to challenge the Wisconsin-created

water quality standards on which the permits are based. The

reason that the Milwaukee permits are inadequate is that the

Wisconsin-created water quality standards which are immune from

attack in the permit proceedings are themselves inadequate. E.g.,

United States Steel Corp. v. Train, 556 F.2d 822, 835-39 (7th Cir.

1977). For this and other reasons, the so-called “remedies” avail-

able under the CWA to a State whose waters are adversely af-

fected by permits issued by another State are illusory. See also

District of Columbia v. Schramm, 631 F.2d 854, 859-62 (D.C. Cir.

1980), discussing 33 U.S.C. §§ 1342(dX3),(e), 1369(bX1Xf). Indeed, it

is ironic that, though Milwaukee could obtain federal court review

(Footnote continued on following page)

—27—

was to be “construed” as impairing the “jurisdiction of

the States with respect to the waters (including boundary

waters) of such States.” 33 U.S.C. § 1370(2). Congress

used the plural, “States,” not the singular. Jd. Jurisdiction

is, by definition, power. The state jurisdiction preserved

is over waters, not discharges. Boundary waters are, by

definition, interstate waters. It’s our Lake, the “bound-

ary waters” of several “such States.’’ The text simply

defies the meaning the Court of Appeals forces on it.

The only possible meaning of § 510 is that, although

Congress did not declare which State’s law would apply

in the context of the interstate pollution of “boundary

waters,” 33 U.S.C. § 1870(2), a choice-of-law question tradi-

tionally left to the judiciary which now must be resolved

by reference to state law, Congress intended to author-

ize all the States to police the pollution of their bound-

ary waters® except when Congress expressly provided

otherwise in the Act, as in § 312(fX1), 33 U.S.C. § 1322(fX1)

(“no State . . . shall’’). No other meaning can be ascribed

to § 510(2) if the statute is to be construed in light of

7 continued

of the Administrator’s veto of a Wisconsin permit, Illinois could

not obtain federal court review of his refusal to veto a permit.

Crown Simpson Pulp Co. v. Costle, 445 U.S. 198, 197 n.9 (1980).

But, whether the so-called “federal forum” provided by § 402

of the CWA is adequate or not, App. at A-20 n.5, is immaterial.

Congress, which understood the gaps in its “comprehensive”

scheme, id. at 18, and chose not to leave the quasi-sovereign eco-

logical rights of the States to the unreviewable discretion of state

and federal bureaucrats, has authorized resort to state nuisance

law as a su thereto. Middlesex County Sewerage Author-

ity v. Nat'l Clammers Ass’n, 453 U.S. 1, 16 n.26 (1981). That’s

what makes the scheme truly “comprehensive.” App. at A-18.

8 The legislative history of § 510(2), as well as the text, defies

the notion that Co ss intended to preempt any State’s police

power over its Sinem, sm waters. See, e.g., Proposed Amendments

to the Water Pollution Control Act: Hearings on S. 890 and S.

928 Before a Subcomm. of the Senate Comm. on Public Works,

85th Cong., 1st Sess. 48 (April 22, 1955).

~28—

its underlying policies, one of which is “to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate pollu-

tion.” 33 U.S.C. § 1251(b) (emphasis added).

Section 510 does not stand alone in authorizing resort

to any State’s concurrent law. Section 505(e) makes ex-

plicit that the remedies available under § 505 do not

preempt resort to “any other relief” available under “any

statute or common law.” 33 U.S.C. § 1365(e) (emphasis

added). As this Court has recognized, one purpose of

§ 505(e) was to preserve the right to damages at state

law, and Congress said that compliance with the require-

ments under the Act would not be a defense to a com-

mon law action. Middlesex County Sewerage Auth. v.

Nat’l Sea Clammers Ass’n, 453 U.S. 1, 16 n.26 (1981).

It makes no textual sense to say, as the Court of Ap-

peals has ruled, that Illinois or its citizens can obtain

damages or injunctive relief extrinsic to the CWA under

Wisconsin or Indiana law, but not under Illinois law.® As

the text and legislative history of § 505(e) and § 510 make

clear, Congress did not distinguish between Illinois law

and Wisconsin or Indiana law, or between the state law

applicable to intrastate polluters and the state law ap-

plicable to interstate polluters, when it affirmatively au-

thorized resort to any and all state law excepting that

“expressly” preempted by the Act. 33 U.S.C. §§ 1365(e),

® The strained construction placed on Sections 505(e) and 510 by

the Court of Appeals was motivated principally, if not solely, by

policy considerations. The Court obviously was concerned over the

plight of polluters who might be forced to meet standards more

stringent than those embodied in their state-issued permits. See

App. at A-22-23. The purpose of the Act, however, is not to im-

‘munize the polluters of our waters. 33 U.S.C. § 1251(aX1). The Act

was not created for the benefit and protection of polluters, but

rather for the benefit and protection of their victims. The Court

of Appeals has simply substituted its policy judgment for Con-

gress’s. 33 U.S.C. 4 1370.

- =

1370. When Congress preempts state law, it preempts any

State’s law. E.g., 33 U.S.C. § 1322(fX1) (“no State”). Like-

wise, when Congress “save[s]’”’ state law, App. at A-22,

it does not discriminate among the laws of the several

States. It does not preempt the application of one State’s

law, while simultanéously “‘sav[ing]’ the application of

another State’s law. App. at A-22. The very existence

and terms of § 505(e) and § 510 contradict the inference

of any Congressional intent to preempt resort to any

State’s law in this case. Which State’s law applies is now

a choice-of-law matter governed by the same rules appli-

cable in any interstate tort action in which state law

governs.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

FRANK J. KELLEY*

Attorney General of the

State of Michigan

720 Law Building

525 W. Ottawa

Lansing, Michigan 48913

(517) 373-0110

ALLEN S. LAVIN*

Attorney

JAMES B. MURRAY

Head Assistant Attorney

Metropolitan Sanitary District

of Greater Chicago

100 E. Erie, Room 301

Chicago, Illinois 60611

(312) 751-5672

* Counsel of Record

NEIL F. HARTIGAN

Attorney General of the

State of Illinois

PHILIP B. KURLAND*

CHRISTOPHER G. WALSH, JR.

Special Assistant Attorneys General

Two First National Plaza

Chicago, Illinois 60603

(312) 372-2345

Of Counsel:

CHARLES W. MURDOCK

Deputy Attorney General

RUSSELL R. EGGERT

Assistant Attorney General

160 N. LaSalle Street

Chicago, Illinois 60601

JOSEPH V. KARAGANIS

Special Assistant Attorney General

150 N. Wacker Drive

Chicago, Illinois 60606