Appendix — Scott v. City of Hammond
Supreme Court brief1985
Ask Donna
What actually matters in this document.
Text
“oi
8 4 a 3 TT gee ys. |
No.
1984
IN THE wa. ad
Supreme Court of the Anite 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,
Vv.
THE SANITARY DISTRICT OF HAMMOND, et al., Respondents.
APPENDICES TO‘THE PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
FRANK J. KELLEY* NEIL F. HARTIGAN
Attorney General of the Attorney General of the
State of Michigan State of Illinois
Ss “aoe PHILIP B. KURLAND*
Lansing, Michigan 49913 CHRISTOPHER G. WALSH, JR.
617) 3730110 Special Assistant Attorneys General
Two First National Plaza
Chicago, Illinois 60603
ALLEN S. LAVIN* (312) 372-2345
putt Of Counsel:
JAMES B. MURRAY CHARLES W. MURDOCK
Head Assistant Attorney _ Deputy Attorney General
“ot ae Chie ae RUSSELL R. EGGERT
reater ,
100 "E. Erie, Room 301 Assistant Attorney General
Chicago, Illinois 60611 160 N. LaSalle Street
(312) 751-5672 Chicago, Illinois 60601
JOSEPH V. KARAGANIS
Special Assistant Attorney General
150 N. Wacker Drive
* Counsel of Record Chicago, Illinois 60606
Printed by Authority of the State of Illinois (P.O. 32406—95—7-5-84) |
,*
INDEX TO APPENDICES
Page
A— Unpublished opinion on remand in Illinois v.
Milwaukee, Nos. 77-2246 & 81-2236 (7th Cir.
E04 Gd. RARGREEESS hice pt ewe A-1
B— Unpublished order denying rehearing in /Ili-
nois v. Milwaukee, Nos. 77-2246 & 81-2236 (7th
ee 8 Ce oe rt eee B-1
C— Judgment Order on remand in Illinois v. Mil-
waukee, No. 77-2246 (7th Cir. Mar. 27, 1984). C-1
D— Judgment Order in Scott v. City of Hammond,
No. 81-2236 (7th Cir. Mar. 27, 1984) ...... D-1
E— Unpublished order granting leave to appeal
under 28 U.S.C. §1292(b), Scott v. City of
Hammond, Misc. Nos. 81-8044 & 81-8045 (7th
Cs eT 0 5 dR AW ade seeks ccewkes E-1
F— Scott v. City of Hammond, 519 F.Supp. 293
De ne EE Gh bo odinns Dada na Kees nwa ud F-1
G— City of Milwaukee v. Illinois (“Milwaukee IT’),
ge & freee he core G-1
H— Order denying cross-petition for certiorari in
Illinois v. City of Milwaukee, 451 U.S. 982
fo RE ee ee H-1
I— Stay Order of the Supreme Court (Stevens, J.)
in City of Milwaukee v. Illinois, No. A-918
(79-408) (U.S. May 8, 1980) ............... I-1
J— Illinois v. Milwaukee, 599 F.2d 151 (7th Cir.
SE ho Shs Ras whe sec Sess FERED tc 000s J-1
K— Unpublished order dated April 26, 1979 accom-
panying Illinois v. Milwaukee, 599 F.2d 151
CRG EEE San cee 6d Oo 0 b60 « chig> Seeks K-1
ii
L— Order dated June 14, 1979 denying rehearirg
in Illinois v. Milwaukee, 599 F.2d 151 (7th Cir.
BUTE nn cc coc vcxnnsbecarnceeesabieeeeienss
M—Amended Judgment Order dated January 31,
1980, and Supplement #1 thereto in Illinois v.
Milwaukee, No. 72-C-1253 (N.D. Ill.) ......
N—Judgment Order dated November 15, 1977 in
Illinois v. Milwaukee, No. 72-C-1253 (N.D.
| 2 rer nee ne tenn ee
O— Stipulation of the Parties dated November 14,
1977 in Illinois v. Milwaukee, No. 72-C-1253
CB: TE) conc kere st dueenssdn ded isaanes
P— Findings of Fact and Conclusions of Law dated
July 29, 1977 in Illinois v. Milwaukee, No.
72-C-1253 (N.D. Ill.), rev’d in part and aff'd in
part, 599 F.2d 151 (7th Cir. 1979) .........
Q— Illinois v. Milwaukee, 366 F.Supp. 298 (N.D.
ED, FTE) «in nivcs cavnevdy venus ceptible scueeas
R— Illinois v. Milwaukee, 4 E.R.C. 1849 (N.D. Til.
19M .cnscivervdliiemnneeee ee
S— Illinois v. Milwaukee, 406 U.S. 91 (1972) ..
T~— Pertinent Provisions of the Clean Water Act
on Agee’... scciosdeown rd ernstaenseties
U—IIll. Rev. Stat. ch. 111%, §1012(a) .........
L-1
M-1
N-1
O-1
P-1
IN THE
Supreme Court of the United States
OCTOBER TERM 1984
PEOPLE OF THE STATE OF ILLINOIS and
PEOPLE OF THE STATE OF MICHIGAN,
Petitioners,
Vv.
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.
APPENDICES TO THE PETITION FOR A WRIT
OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
Poe
-
®
2,
=
*
A-1
APPENDIX A
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
No. 77-2246
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
and
PEOPLE OF THE STATE OF MICHIGAN,
Intervening Plaintiff-Appellee,
Vv.
City OF MILWAUKEE, THE SEWERAGE COMMISSION OF THE
City OF MILWAUKEE and THE METROPOLITAN SEWERAGE
COMMISSION OF THE COUNTY OF MILWAUKEE,
Defendants-A ppellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 72 C 1253—John F. Grady, Judge.
Upon Remand from the United States Supreme Court
No. 79-408
2?
(Caption continued on following page)
A-2
No. 81-2236
WILLIAM J. Scott, on his own behalf and on behalf of all
persons similarly situated,
Plaintiff,
Vv.
City OF HAMMOND, INDIANA; UNITED STATES ENVIRON-
MENTAL PROTECTION AGENCY; DouGLAS M. COosTLE, Ad-
ministrator of the United States Environmental Protection
Agency; and the HAMMOND-MUNSTER SANITARY DISTRICT,
Defendants,
and
&
PEOPLE OF THE STATE OF ILLINOIS and the METROPOLITAN
SANITARY DISTRICT OF GREATER CHICAGO, a municipal
corporation,
Plaintiffs,
v.
THE SANITARY DISTRICT OF HAMMOND, a municipal cor-
poration; JOSEPH A. PERRY; THOMAS C. CONLEY;
GILBERT DE LANCY; THEODORE DUNAJESKI; and the
City OF HAMMOND, INDIANA, a municipal corporation,
Defendants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 80 C 4563 and 80 C 4775—John Powers Crowley, Judge.
ARGUED DECEMBER 3, 1981—DECIDED MARCH 27, 1984
A-3
Before SPRECHER, Circuit Judge,* Cupauy, Circuit
Judge, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge. These appeals in-
volve resort by a state (in one case by a citizen of that
state) to state law nuisance remedies to deal with pollu-
tion of its portion of an interstate body of water, resulting
from the discharge of pollutants in another state.
Appeal No. 77-2246 (the Milwaukee case) in here on
remand from the Supreme Court of the United States.
Milwaukee v. Illinois, 451 U.S. 304 (1981) (Milwaukee IJ).
Appeal No. 81-2236 is an interlocutory appeal in cases to
which we shall refer as the Hammond Chats.
I. THE MILWAUKEE CASE
In Illinois v. City of Milwaukee, 406 U.S. 91 (1972)
(Milwaukee I), the Supreme Court denied Illinois leave
to file a bill of complaint under the Court’s original
jurisdiction. Iilinois alleged pollution of Lake Michigan by
the present defendants and other Wisconsin cities, and
sought abatement of a public nuisance. The Court held
that the federal common law of nuisance would govern,
and that a district court would have federal question
jurisdiction. Although an “original suit normally might be
the appropriate vehicle for resolving this controversy, we
exercise our discretion to remit the parties to an ap-
propriate district court whose powers are adequate to
resolve the issues.” 406 U.S. at 108.
In May, 1972, a month after Milwaukee I, Illinois
brought this action in the United States District Court
for the Northern District of Illinois. One count claimed
a public nuisance and invoked federal law, citing Mil-
waukee I; one claimed a violation of an Illinois statute,
the Environmental Protection Act; and one claimed a
* Circuit Judge Robert A. Sprecher heard oral argument and
voted at the post-argument conference to affirm. He died on May
15, 1982, before the preparation of this opinion.
A-4
public nuisance under Illinois common law. An injunction
was sought. The State of Michigan was granted leave to
intervene as a party plaintiff in August, 1972.
In August, 1977, after trial, the district court made
findings that defendants dump substantial quantities of
pathogen-containing sewage into Lake Michigan each year,
that the lake currents carry the pathogens into Illinois
waters where they may infect drinking water supplies and
pose a danger to swimmers, and that the phosphorous in
the discharges made a substantial contribution to the ac-
celerated eutrophication of Lake Michigan. People of the
State of Illinois v. City of Milwaukee, 599 F.2d 151,
167-69 (7th Cir. 1979), (Milwaukee 7th Cir.). Injunctive
relief, including changes in the operation of defendant’s
sewage system, was granted. 599 F.2d at 169-70.
The district judge stated his belief that he had jurisdic-
tion to try all three counts.
I have concluded that the case should be decided
under the Federal common law of nuisance, but I fur-
ther believe that the elements required under that
cause of action are also the same elements which the
Court would have to find under the two State claims.
Therefore, in my view, it makes no practical dif-
ference that the court is taking the case on all three
counts.
On appeal, this court noted,
[p]laintiff also relies on Illinois statutory and common
law. The district court indicated that under any of
the asserted grounds for relief the result would be
the same. But it is federal common law and not state
statutory or common law that controls in this case.
Illinois v. Milwaukee, supra, 406 U.S. at 107 & n.9,
92 S.Ct. 1385, and therefore we do not address the
state law claims.
599 F.2d 151, 177, n.53 (Milwaukee 7th Cir.).
In affirming as to liability and portions of the relief, we
held that the federal common law of nuisance had not
A-5
been preempted by 1972 FWPCA, the Federal Water
Pollution Control Act Amendments of 1972, 33 U.S.C.
§ 1251, et seg. (nor the 1977 Amendments to the same Act).
The Supreme Court granted Milwaukee’s petition for
certiorari, 445 U.S. 926, “‘to consider the effect of [the
1972] legislation on the previously recognized cause of ac-
tion.” 451 U.S. at 308. The Court concluded that Congress
kad so completely occupied the field as to supplant federal
common law. “{T]here is no basis for a federal court to
impose more stringent limitations . . . by reference to
federal common law. . . .” Milwaukee v. Illinois, 451 U.S.
304, 320 (1981) (Milwaukee IJ). The Court vacated the
judgment of this court and remanded “for proceedings
consistent with this opinion.”
Illinois had also applied for certiorari, including as one
of its questions, “(3) Was appellate court correct in disre-
garding claims made by Illinois under Illinois law, both
under state common law of nuisance and under Illinois
Environmental Protection Act?” 48 L.W. 3341. In
Milwaukee II, decided April 28, 1981, the Court noted:
The complaint also sought relief, in counts II and
III, under [llinois statutory and common law. See
App. 29-32. The District Court stated that “the case
should be decided under the principles of the federal
common law of nuisance,” App. to Pet. for Cert. F-2,
but went on to find liability on all three counts of
the complaint, id. at F-24. The Court of Appeals ruled
that “it is federal common law and not state statu-
tory or common law that controls in this case, Jilinois
v. Milwaukee, supra, 406 U.S., at 107, & n.9,. . .. and
therefore we do not address the state law claims.”
599 F.2d at 177, n.53. Although respondent Illinois
argues this point in its brief, the issue before us is
simply whether federal legislation has supplanted
federal common law. The question whether state law
is also available is the subject of Illinois’ petition for
certiorari, No. 79-571.
451 U.S. 304, 310, n.4.
A-6
On May 18, 1981, the Court denied the Illinois petition.
451 U.S. 982.
On remand, Illinois again asks us to affirm, this time
on the basis of the state law claims. Our jurisdiction to
consider the state law claims is at least unclear. It is clear
that the Supreme Court refused to review our declining
to consider state law as support for the district court
judgment and at least doubtful that the direction to us
on remand includes our reconsideration of that issue.
But even if our considering Illinois law nuisance or
statutory claims in No. 77-2246, the Milwaukee case, is
thus foreclosed, very similar claims are present in the
Hammond cases, and any limitation on our consideration
of state law claims which arises from the procedural
posture of No. 77-2246 would not apply in No. 81-2236.
II. THE HAMMOND CASES
A. The Scott Complaint
On August 21, 1980, William J. Scott, suing as a citizen
of Illinois, commenced a class action in the United States
District Court for the Northern District of Illinois. The
complaint alleged that two Indiana municipal corporations,
the Hammond Sanitary District and the City of Ham-
mond, had discharged raw and inadequately treated
sewage into Lake Michigan, that the sewage created a
public health hazard in Illinois, and that the Indiana
municipal corporations’ conduct “constitutes both a public
and private nuisance under Illinois law and independently
both a public and private nuisance under federal common
law.”’ Seott’s coraplaint alleged federal jurisdiction based
on both diversity of citizenship and the existence of a fed-
eral question under the federal common law of nuisance.
B. The Illinois Complaint
On September 5, 1980, Illinois and the Metropolitan
Sanitary District of Greater Chicago (collectively “Tllinois’’)
filed a complaint in the Circuit Court of Cook County;
A-7
Illinois, against the City of Hammond, the Hammond
Sanitary District, and the District’s manager and trustees
(collectively Hammond”). In addition to the federal com-
mon law and state common law nuisance claims asserted
in Scott’s federal complaint, the Illinois complaint alleged
a trespass under Illinois common law, a violation of the
Illinois Pollution Control Board’s water quality standards,
and a violation of Illinois Sadienénnnial Protection Act.
On the petition of Hammond, the case was removed to
federal court on the ground that the federal common law
of nuisance provided federal question jurisdiction and that
pendent jurisdiction existed over the state law claims. On
October 20, 1980, the District Court denied the plaintiffs’
motion to remand the case to the state court. //linois v.
Sanitary District of Hammond, 498 F. Supp. 166 (N.D.
Ill. 1980).
On June 24, 1981, based upon Milwaukee II, the Gistrict
court granted Hammond’s motions to dismiss the %deral
common law nuisance claims. The district court denied
dismissal of plaintiffs’ state law claims, but certified its
ruling for an interlocutory appeal under 28 U.S.C. § 1292(b).
Scott v. City of Hammond, 519 F. Supp. 292, 298 (N.D.
Ill. 1981). We permitted the appeal.
Illinois argues for affirmance.
Ill. JURISDICTION
In the Milwaukee case, Illinois stated a claim under the
federal common law of nuisance and invoked federal ques-
tion jurisdiction, consistent with Milwaukee I. The case
was begun before enactment of 1972 FWPCA. Plaintiffs
in the Hammond cases stated similar claims. Although
these cases came to the federal court after enactment of
1972 FWPCA, Milwaukee II had not yet been decided,
establishing that the federal common law had been sup-
planted by FWPCA. Thus in all the cases the federal
claim was initially substantial, and federal question
jurisdiction appropriate. In all the cases, the district court
could properly and did accept and retain pendent jurisdic-
A-8
tion of state law claims. It is not essential to the reten-
tion of pendent jurisdiction that the federal issue remain
alive throughout. See Rosado v. Wyman, 397 U.S. 397,
405 (1970).
Scott, suing the Hammond defendants as a citizen of
Illinois, claimed injury in the impairment of his own
regular recreational use of Lake Michigan and invoked
diversity juristliction as to his state law claim. There could
not, however, be diversity jurisdiction of the actions
brought by Illinois. Milwaukee I, 406 U.S. at 97 n.1.
In personam jurisdiction over the municipal corporation
defendants was based on service under the Illinois long
arm statute, on the theory that defendants through con-
duct outside of Llinois were causing injury within Illi-
nois and were therefore committing tortious acts within
the state. Milwaukee 7th Cir., 599 F.2d at 155, 156;
Milwaukee II, 451 U.S. at 312, n.65.
IV. PREEMPTION
The issue in all of these cases is whether there is a body
of federal law in the area of interstate water pollution
which precludes the application of one state’s common or
statutory law to determine liability and afford a remedy
for discharges, in particular by a municipality, within
another state.
Illinois suggests that Illinois common law controlled this
case until Milwaukee I judicially promulgated federal com-
mon law, and that since the 1972 FWPCA dissipated fed-
eral common law, Illinois law must again control. Illinois
argues,
[in sum, even if the promulgation of federal common
law in Milwaukee y displaced the otherwise ap-
plicable state law under the Supremacy Clause, the
preemptive effect of that body of federal law dissi-
pated upon its own demise in Milwaukee II. And,
unless the FWPCA itself preempts the application of
state law, there is nothing to prevent the states from
now acting in this field.
A-9
Plaintiff-Appellee Illinois’ Brief at pp. 12-13. Illinois goes
on to argue that the 1972 FWPCA does not have such
a preemptive effect because it does not evidence a “clear
and manifest purpose” of Congress to preempt state law,
and therefore state law nuisance remedies are available.
The defendants argue that Milwaukee II has a different
effect on Milwaukee I and Milwaukee 7th Cir. They con-
tend that the Supreme Court, in Milwaukee I, determined
that interstate pollution disputes fall within the category
of controversies touching basic interests of federalism
which require the application of federal law and preclude
the application of a state’s laws to discharges occurring
outside the state. In Milwaukee I the Court held that the
governing federal law was federal common law. In Mil-
waukee II, federal statutory law, the 1972 FWPCA, sup-
planted federal common law, but continued to preclude
the application of state law to out-of-state discharges, ex-
cept as affirmatively permitted by the 1972 FWPCA.
The district court, in the Hammond cases, essentially
took the position of the Illinois plaintiffs. The district
judge denied dismissal of the plaintiffs’ state law claim
holding that Milwaukee IJ must be interpreted as repudi-
ating the entire Milwaukee 7th Cir. opinion, including
footnote 53 which stated that federal common law, not
state law, is controlling, thus leaving unresolved the issue
of the application of state law to discharges of alleged
pollutants within another state by a municipal body of that
state. The district judge then went on to find that the
application of state law is not precluded by virtue of the
basic interests of federalism in controlling interstate water
pollution nor preempted by the 1972 FWPCA.
In Milwaukee I, the Supreme Court articulated a
number of reasons for applying federal common law to
the issue of interstate water pollution. The Court ex-
amined the federal statutes touching interstate waters,
including the Federal Water Pollution Control Act as it
existed prior to the 1972 Amendments. The Court held
that ‘‘the Act makes clear that it is federal, not state,
law that in the end controls the pollution of interstate
A-10
or navigable waters.”’ 406 U.S. at 102. The Court went
on to hold that the statutory remedies provided by Con-
gress did not encompass the remedy sought by Iilinois
oe that federal common law remedies must therefore fill
the gap.
Milwaukee I’s second reason for applying federal law
was the character of the parties. It is clear, however, that
the federal nature of the problem, and the basic interests
of federalism do not depend on the case being a state ver-
sus state case. See note 6 of Milwaukee I, following. It
may well be significant, however, that, except for the case
in which Scott is plaintiff, these are attempts by a state
to regulate municipalities of another state in the discharge
of their public responsibilities.
The opinion’s third reason for applying federal common
law to interstate pollution disputes was that the basic in-
terests of federalism and the federal interest in a uniform
rule of decision in interstate pollution disputes required
the application of federal law. The court stated, “Rights
in interstate streams, like questions of boundaries, ‘have
been recognized as presenting federal questions’*.” 406
U.S. at 105. In footnote 6 the Court said:
Thus, it is not only the character of the parties that
requires us to apply federal law. * * * As Mr. Justice
Harlan indicated for the Court in Banco Nacional
de Cuba v. Sabbatino, 376 U.S. 398, 421-27, where
there is an overriding federal interest in the need
for a uniform rule of decision or where the controver-
sy touches basic interests of federalism, we have
fashioned federal common law. * * * Certainly these
same demands for applying federal law are present
in the pollution of a body of water such as Lake
Michigan, bounded, as it is, by four states.
406 U.S. at 105 n.6. The Court went on to quote from
the Tenth Circuit’s statement in Texas v. Pankey, 441
F.2d 236 (10th Cir. 1971), that:
A-11
Federal common law and not the varying common
law of the individual States is, we think, entitled and
necessary to be recognized as a basis for dealing in
uniform standard with the environmental rights of a
State against improper impairment by sources out-
side of its domain.
406 U.S. at 107 n.9. In deciding that federal law controlled
in interstate water pollution disputes, the court overruled
its position in Ohio v. Wyandotte Chemicals Corp., 401
U.S. 493 (1971) that state law (of the state within which
pollution caused a nuisance) controlled interstate water
pollution disputes. 406 U.S. 102, n.3, as interpreted by
the Court, 451 U.S. at 327, n.19.
When Illinois v. Milwaukee reached this court for the
first time, (Milwaukee 7th Cir.), 599 F.2d 151, we fol-
lowed the rational of Milwaukee I to hold that, “ijt is
federal common law and not state statutory or common
law that controls in this case.” 599 F.2d at 177, n. 53.
In City of Evansville, Indiana v. Kentucky Liquid
Recycling, 604 F.2d 1008 (7th Cir. 1979), cert. denied, 444
U.S. 1025 (1980) three Indiana municipal corporations
brought suit to recover damages incurred because of the
defendant’s discharges of contaminants into the river from
the State of Kentucky. The complaint alleged claims based
upon both federal and state law. Relying primarily upon
Milwaukee I, this court held that the district court had
subject matter jurisdiction of plaintiffs’ claim under the
federal common law of interstate water pollution.
[T]here can be little doubt that the reasons the
Supreme Court found compelling for declaring a fed-
eral common law of interstate water pollution are ap-
plicable here. The plaintiffs are municipal or public
corporations, subdivisions of the state, that were re-
quired tc spend public funds because of pollution of
an interstate waterway by acts done in another state.
The interests of the state in this interstate pollution
dispute are implicated in the same way such interests
were implicated in Illinois v. Milwaukee.
A-12
In footnote 30 we said:
30Cf. Hinderlider v. LaPlata River & Cherry Creek
D. Co., 304 U.S. 92, 110, 58 S.Ct. 808, 82 L.Ed. 1202
(1938) (interstate water apportionment); see also Geor-
gia v. Tennessee Copper Co., 206 U.S. 230, 238, 27
S.Ct. 618, 51 L.Ed. 1038 (1907) (implicitly assuming
that even a private party might file suit to enjoin
interstate air pollution); Committee for Jones Falls
Sewage System v. Train, supra, 539 F.2d at 1009
n.8. Originating in Pennsylvania, the Ohio River is
the boundary between Ohio and West Virginia, Ohio
and Kentucky, Indiana and Kentucky, and Illinois and
Kentucky, and empties into the Mississippi River.
Each of these states has an interest in the use of the
river, but the laws of one state cannot control the
use of the river by citizens of other states. See Ban-
co Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427,
84 S.Ct. 923, 939, 11 L.Ed.2d 804 (1964) (Hinderlider
“implies that no State can undermine the federal in-
terest in equitably apportioned interstate waters even
if it deals with private parties”).
(Emphasis added.) 604 F.2d at 1018.
In Milwaukee II the issue before the Supreme Court
was solely whether federal legislation had supplanted
federal common law. The case did not address the holding
in Illinois v. Milwaukee 7th Cir. that state law was in-
applicable to interstate water pollution disputes.
The Court of Appeals ruled that “it is federal com-
mon law and not state statutory or common law that
controls in this case, [llinois v. Milwaukee, supra,
406 U.S., at 107, & n. 9, . . . and therefore we do
not address the state law claims.” 599 F.2d, at 177,
n. 53. Although respondent Illinois argues this point
in its brief, the issue before us is simply whether
federal legislation has supplanted federal common
law. The question whether state law is also available
is the subject of Illinois’ petition for certiorari, No.
79-571.
A-13
451 U.S. at 310, n.4. In addition, the Court specifically re-
affirmed its prior overruling in Milwaukee I of the posi-
tion in Ohio v. Wyandotte Chemicals Corp. that state law
controlled interstate water pollution disputes. 451 U.S. at
327, n.19.1 Thus, when the Court vacated and remanded
“the case to the Seventh Circuit, it had dealt only with
what federal law applied and did not affect this court’s
holding that Illinois law was inapplicable. See People of
the State of Illinois v. Lever Brothers Company, 530 F.
Supp. 293, 295 (N.D. Illinois 1981).
The Supreme Court continues to cite Milwaukee I for
the inapplicability of state law to interstate conflicts im-
plicating conflicting state interests despite the displace-
ment of federal common law by FWPCA recognized in
Milwaukee II. In Texas Industries, Inc. v. Radcliff
Materials, Inc., 451 U.S. 630 (1981), the Supreme Court
again articulated the federal nature of interstate water
pollution disputes:
[A]bsent some congressional authorization to for-
mulate substantive rules of decision, federal common
law exists only in such narrow areas as those con-
cerned with the rights and obligations of the United
States, [footnote omitted] interstate and international
disputes implicating the conflicting rights of States
1 In addition to Ohio v. Wyandotte Chemicals Corp., plaintiffs rely
on Askew v. American Waterways Operators, 411 U.S. 325 (1973),
and Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440
(1962), to establish a state’s power to control pollution of its boun-
dary waters, but the reliance is misplaced. In Askew the Supreme
Court upheld Florida’s power to impose liability for oil spills oc-
curring within its own territorial waters. Nothing in the opinion
indicates that Florida «vould have been able to extend that power
to spills occurring in the territorial waters of other states. Similar-
ly, nothing in Huron Portland Cement suggests that Detroit could
have enforced its air pollution laws against ships outside of
Michigan waters. Illinois remains free to regulate pollution of Lake
Michigan from sources within Illinois, but it may not extend that
regulatory authority to sources beyond its own borders.
451
451
In
held
A-14
or our relations with foreign nations,!* and admiral-
ty cases [footnotes omitted]. In these instances, our
federal system does not permit the controversy to
be resolved under state law, either because the au-
thority and duties of the United States as sovereign
are intimately involved or because the interstate or
international nature of the controversy makes it in-
appropriate for state law to controi.
U.S. at 641 (emphasis added). Footnote 13 said,
See, e.g., lllinois v. Milwaukee, 406 U.S. 91 (1972);
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(1964); Hinderlider v. La Plata River & Cherry Creek
Ditch Co., 304 U.S. 92 (1938). Many of these cases
arise from interstate water disputes. Such cases do
not directly involve state boundaries, disputes over
which more often come to this Court under our origi-
nal jurisdiction; they nonetheless involve especial
federal concerns to which federal common law applies.
In Hinderlider v. La Plata River & Cherry Creek
Ditch Co., supra, at 110, decided the same day as
Erie, the Court observed:
“Jurisdiction over controversies concerning rights in
interstate streams is not different from those con-
cerning boundaries. These have been recognized as
presenting federal questions.”
U.S. at 641.
its opinion in the Hammond cases, the district court
that,
[t]he issue of regulating and preventing water pollu-
tion does not present the same type of unresolvable
conflict of state interests that the apportionment of
boundaries and water rights does. In the latter situa-
tions, a limited quantity of land or water must be
divided among competing state interests. Thus, only
resort to federal law and authority can resolve those
matters. In the water pollution control field, however,
the issue is not dividing the pie but determining
edhe LN Conse CNL Sakae
A-15
which standards will regulate discharges and provide
remedies for injuries. It is theoretically possible that
no conflicts will occur among the states because they
agree on standards and remedies needed to protect
the water. But in the more realistic situation where
one or the other set of rules must be recognized as
controlling, to adopt the more stringent laws does not
deprive the other state of any water rights. Indeed,
the benefits of stronger ccntrols would redound to
all states involved.
This interpretation misstates the nature of interstate
water pollution disputes. The issue is in fact “dividing the
pie,” 2.¢., the equitable reconciliation of competing uses
of an interstate body of water, Lake Michigan. The dis-
charge of effluents into interstate waters as a conse-
quence of sewage treatment is a use of the lake, as is
its use for drinking water or recreation. To the extent
that those and other uses impinge upon or compete with
one another, the limited resource of Lake Michigan must
be equitably apportioned among them. Such apportionment
will doubtless reflect a policy that some uses are more
socially desirable than others, but the policy must be ar-
ticulated and implemented through legislative or judicial
action. When this competition for the use of an interstate
body of water involves the interests of different states,
apportionment among users is a matter of special federal
concern and the subject of federal law. Texas Industries,
Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 n.13
(1981); Illinois v. Milwaukee, 406 U.S. 91, 105 (1972);
Texas v. Pankey, 441 F.2d 236, 241-42 (10th Cir. 1971);
Hinderlider v. La Plata River & Cherry Creek Ditch Co.,
304 U.S. 92, 110 (1938); Georgia v. Tennessee Copper Co.,
206 U.S. 230, 237 (1907).
Effluent limitations on discharges into Lake Michigan
prescribed in permits under the authority of 1972 FWPCA
accomplish apportionment of the uses of Lake Michigan
under federal law, albeit statutory rather than common
law. To allow one state te impose more stringent limita-
tions on discharges within a second state would impair
A-16
this apportionment of water use to the latter state. To
argue that all states have an interest in abating water
pollution and therefore the interstate application of one
state’s more stringent standards would benefit all is too
simplistic. There are legitimate state concerns on both
' sides of the question. In the present cases the political
subdivisions of one state claim a right to an extent of use
of interstate water in the exercise of their public health
functions. A different state complains that a use to that
extent causes contamination of its waters and is inimical
to public health because those waters are used for water
supplies and recreation. This is a controversy of federal
dimensions, implicating the conflicting rights of states and
inappropriate for state law resolution. The latter state
does not seek mere enforcement of effluent limitations
established under federal law, but imnosition of more
stringent limitations.
The very reasons the Court gave for resorting to federal
common law in Milwaukee I are the same reasons why
the state claiming injury cannot apply its own state law
to out-of-state discharges now. Milwaukee II did nothing
to undermine that result.2 The claimed pollution of inter-
2 Our decision here is limited to the choice of applicable law in
interstate water pollution litigation within the United States. We
do not address other dimensions of the complex ~~ issues that
may be presented in transboundary pollution cases brought in the
domestic courts of the state of discharge or the state of impact.
ra e.g., Michie v. Great Lakes Steel’ I Division, National Steel
ae 495 F.2d 213, 215 (6th Cir.) (application of law of state of
discharge to international pollution dispute), cert. denied, 419 U.S.
997 (1974); Sierra Club v. Adams, 578 F.2d 389, 391 n.14 (D.C.
Cir. 1978) (application of United States law to federal government
actions abroad affecting environment). See also Ohio v. Wyandotte
Chemicals Corp., 401 U.S. 493, 502-03 (1971) (involvement of many
state, interstate and international agencies in water pollution dispute
supported Court’s denial of leave to file original wang Georgia
v. Tennessee Copper Co., 206 U.S. 230 (1907) (applying federal com-
mon law to interstate air pollution dispute). In PW idition. nothing
in our decision should Se the application of Wisconsin or In-
diana law to these discharges or limit the availability of state and
federal courts in one of those states to out-of-state parties affected
by discharges in that state.
A-17
state waters is a problem of uniquely federa: dimensions
requiring the application of uniform federal standards both
to guard states against encroachment by out-of-state pol-
luters and equitably to apportion the use of interstate
waters among competing states. Given the logic of
Milwaukee I and Milwaukee II, we think federal law must
govern in this situation except to the extent that the 1972
FWPCA (the governing federal law created by Congress)
authorizes resort to state law.
3 We recognize that in the ordinary interstate tort the Constitu-
tion does not preclude the application of one state’s law to deter-
mine liability and afford a remedy for acts done in another state
and producing injury within the forum state. Justice Brandeis,
writing for the Court in Young v. Masci, 289 U.S. 253, 258-59
(1933) stated:
A person who sets in motion in one State the means by which
injury is inflicted in another may, consistently with the due
process clause, be made liable for that injury whether the
means employed be a responsible agent or an irresponsible in-
strument. The cases are many in which a person acting out-
side the State may be held responsible according to the. law
of the State for injurious consequences within it. Thus, liabili-
ty is commonly imposed under such circumstances for homi-
cide, Commonwealth v. Macloon, 101 Mass. 1; for mainte-
nance of a nuisance, S v. Lord, 16 N.H. 357, 359; for
rE, operations, Ce Vandergriff, 53 Ark. 381, 386;
13 S.W. 1092; and for negligent manufacture, MacPherson v.
Buick Motor Co., 217 N.Y. » 111 N.E. 1050.
In State v. Lord, an obstruction to a ditch in Maine caused the
runoff of heavy rains to damage a road in New Hampshire. Other
cases also recognized that an act which affects waters flowing be-
tween states “sage try in one state will give rise to a cause of
action in another state if the effect on the water causes damage
in the second state. See Thayer v. Brooks, 17 Ohio 489 (3848)
(draining a ce Pennsylvania injured a mill in Ohio); Howard
v. Ingersoll, 17 Ala. 780 (1850) (dam on river in Georgia injured
mill in Alabama) reversed on other grounds, 54 U.S. (13 How.) 381
(1852) (jury improperly instructed on boundary; damaged mill may
well have been in Georgia); St. Louis & S. F. R. Co. v. Craigo,
10 Tex. Civ. App. 238, 31 S.W. 207 (1895) (construction in Indiana
Territory redirected river currents causing injury to land in
Texas). But see Gilbert v. Moline Water Power & Manufacturing
(Footnote continued on following page)
yr
A-18
V. 1972 FWPCA
The 1972 FWPCA was characterized by the Supreme
Court as “an all encompassing program of water pollu-
tion regulation” whose major purpose was “to establish
a comprehensive long-range policy for the elimination of
water pollution.” Milwaukee II, 451 U.S. at 318, People,
etc. v. Outboard Marine Corp., Inc., 580 F.2d 473, 477
(7th Cir. 1982). Part of that comprehensive policy involves
recognizing, preserving, and protecting “the primary re-
sponsibilities and rights of states to prevent, reduce, and
eliminate pollution, [and] to plan the development and use
(including restoration, preservation, and enhancement) of
land and water resources.” 33 U.S.C. § 1251(b). In addi-
tion, the Act encourages cooperative activities by the
states and uniform state laws relating to the prevention,
reduction, and elimination of pollution. 33 U.S.C. § 1253.
3 continued
Co., 19 Iowa 319 (1866) (Iowa courts cannot take cognizance of
the nuisance which resulted in flooding of Iowa lands when the |
river dividing Illinois from Iowa was dammed between an island ©
in Illinois and the Illinois mainland).
These cases are consistent with the general common law .
characterization of actions for damages to real property as local
and therefore maintainable only in the state wherein the damaged
‘and lies. Ellenwood v. Marietta Chair Co., 158 U.S. 105, 107
(1895); Livingston v. _—-S 15 F. Cas. 660 (C.C.D. Va. 1811)
(No. 8,411); Wooster v. Falls Manufacturing Co., 39 Me. 246,
249 (1855) (dam across river between Maine and New Hampshire .
injured real estate in Maine); Eachus v. Trustees of the Illinois;,.
& Michigan Canal, 17 Ill. 534 (1856) (dam in Illinois injured Indiana
land; suit can only be brought in Indiana); RESTATEMENT (SEC-
OND) OF CONFLICT OF LAWS § 87, comment a (1969). Nonetheless,
we think it evident from Milwaukee I that this doctrine is not
— to the determination of liability and remedy for dis- -
charges within one state by its municipalities into an interstate
body of water, which by their nature implicate uniquely federal
concerns. In addition, the conflict and confusion which would arise
from the imposition by the second state of a more restrictive ef-
fluent standard than would be applicable under FWPCA counsels
rejection of this doctrine in the present circumstances.
A-19
1972 FWPCA contemplates cooperative exercise of juris-
diction by the state within which discharges occur. For
example, a state may obtain authority to administer its
own permit program for discharges into navigable waters
within its jurisdiction. Section 1342(b) and (c).4
There are other provisions specifically addressed to pro-
tection of the interests of a state whose waters may be
affected even though the discharges under consideration
occur in a different state. Thus where the Administrator
4 The Governor of each state is responsible for identifying each
area within his state which has substantial water quality control
problems. Where such area is located in two or more states,
the Governors shall consult and cooperate. Section 1288. The
federal Administrator shall modify certain requirements “with the
concurrence of the State.”’ Section 1311(gX1), (h). The state (if ap-
propriate) may grant certain time extensiens. Section 1311(k). A
state with an approved permit p may, in consultation with
the Administrator, establish a compliance date where an innovative
production process will be used. tion 1311(k). A state has cer-
tain primary responsibilities with respect to adopting and revis-
ing water quality standards, and making determinations and plans
with respect to attainment of such standards. Section 1313. Each
state is required to report on water quality of all navigabie waters
in such state. Section 1315. Each state may develop a procedure
under state law for apolying standards of performance for new
sources in such state. Section 1316(c). Each state has primary
responsibilities for enforcement of limitations in a permit issued
by that state. Section 1319(aX1). A state has certain powers with
respect to sewage discharged from vessels into waters within such
state. Section 1322(f), (3) and (4). Each state has certain responsi-
bilities with respect to all publicly owned fresh water lakes in such
state. Section 1324. The state (if appropriate) may impose different
effluent limitations with respect to the thermal component of dis-
charges. Section 1326(a). An applicant for federal license or per-
mii shall provide a certification by the state in which the discharge
originates. Section 13%1(a). There are provisions for a state per-
mit program for discharge of dredged or fill material within the
state, with procedures to protect the interests of other states, the
waters of which may be affected. Section 1344. It seems clear that
where these provisions recognize or confer power upon a state,
the reference is to the state within which the discharges under
consideration occur.
BEST AVAILABLE COPY f
A-20
issues a compliance order, he must send a copy to “other
affected states” as well as the state in which the viola-
tion occurs. Section 1319(aX4). When an application for
federal license or permit is received, and the Administra- .
tor determines that the discharge may affect the quality
of the waters of any other state, he must notify such other
state. That state may then object, be entitled to a hear-
ing, and obtain appropriate conditions to the license or
permit. Section 1341(aX2). A state permit program under
§ 1342(b) must insure that a state whose waters may be
affected receive notice, an opportunity for public hearing
and the right to submit recommendations, with notice to
the Administrator if its recommendations are not ac-
cepted. Section 1342(bX3) and (5). The Administrator has
power to prevent issuance of the permit. Section 1342
(dX2). Section 1365 authorizes a civil action to enforce an
effluent standard or limitation. The civil action may be
brought against a violator (or the Administrator) by any
person having an interest adversely affected, including a
state. Subsection (h) authorizes a Governor to bring an
action against the Administrator for failure “to enforce
an effluent standard or limitation under this chapter the
violation of which is occurring in another State and is
causing an adverse effect on the public health or welfare
in his State, or is causing a violation of any water quali-
ty requirement in his State.” Subsection (cX1) permits the
action to be brought only in the judicial district in which
the source is located.5
5 Illinois’ basic grievance is that the permits issued to Milwaukee
pursuant to the Act do not impose stringent enough controls on
the discharges. Nevertheless, Illinois failed to participate in the
permit issuing process when the Milwaukee permits were issued.
See, Milwaukee II, 451 U.S. at 325, 326. In light of the FWPCA’s
preemption of federal common law, that process seems now to be
the appropriate federal forum for adjusting the competing claims
of states in the environmental quality of interstate waters. Illinois’
failure to participate in that process cannot now justify unilateral
application of Illinois law to these discharges. If Illinois desires
more stringent protection from out-of-state disc , it must turn
in the first instance to the EPA and federal law for the equitable
accommodation of its interests.
ae one a
A-21
' Section 1270 has at times been referred to as a saving
clause. it provides in subsection (1) that except as express-
ly provided, nothing in FWPCA shall preclude or deny
the right of any state or political subdivision thereof or
interstate agency to adopt or enforce a standard or limita-
tion respecting discharges of pollutants or any require-
ment respecting control or abatement of pollution except
that any effluent limitations, etc., may not be !ess stringent
than those in effect under FWPCA.® In the light of the
structure of FWPCA, with its emphasis upon the role of
the state where the discharge in question occurs, except
for provisions expressly protecting the interests of other
states, and in the light of the conflict and confusion which
could result from any different construction, we conclude
6 On its face it is arguable that § 1370 contemplates only legisla-
tively or administratively prescribed state standards. The Supreme
Court has suggested, however, that it may refer to effluent limita-
tions imposed as a result of court decrees under the common law
of nuisance.
In fact the Senate Report on the FWPCA Amendments of
1972 stated with respect to the saving clause:
“It should be noted, however, that the section would specifical-
ly preserve any rights or remedies under any other law. Thus,
if damages could be shown, other remedies would remain avail-
able. Compliance with requirements under this Act would not
be a defense to a common law action for pollution damages.”
>. Rep. No. 92-414, p. 81 (1971). (Emphasis in original.)
See also S. Rep. No. 92-451, pp. 23-24 (1971) (Report on the
MPRSA) (the citizen-suit provision does not restrict or super-
sede “any other right to legal action which is afforded the
potential litigant in any other state or the common law’).
It might be argued that the phrase “any effluent standard
or limitation” in § 505(e) [83 U.S.C. § 1365(e)] necessarily is
* a reference to the terms of the FWPCA. We, however, are
: unpersuaded that Congress necessarily intended this meaning.
The phrase also could refer to state statutory limitations, or
to “effluent limitations” imposed as a result of court decrees
under the common law of nuisance.
Middlesex County Sewerage Authority v. National Sea Clammers
Association, 453 U.S. 1, 16 n.26 (1981).
ais
A-22
that this provision refers to the right of a state with
respect to discharges within that state, and not to any
right of a state to impose more stringent limitations upon
discharges in another state.
Section 1370(2) requires that except as expressly pro-
vided nothing in FWPCA shall be construed as impair-
ing or in any manner affecting any right or jurisdiction
of the states with respect to the waters (including boun-
dary waters) of such states. Illinois suggests that because
the discharges in Wisconsin and Indiana cause an adverse
effect within the boundary waters of Illinois, this provi-
sion saves its jurisdiction to apply its laws so as to
regulate activity in Wisconsin and Indiana in order to
avoid the effect in the future. We read Milwaukee I as
holding that Illinois law could not be used in this situa-
tion so that there was no right or jurisdiction to be saved.
In any event, in the light of the structure of FWPCA
and the potential conflict and confusion, we think Con-
gress intended no more than to save the right and juris-
diction of « stzte to regulate activity occurring within the
confines of its Loundary waters.7
Subsection (e) ot § 1365, authorizing a suit for enforce-
ment in the federal judicial district in which the source
is located, contains similar saving clause language:
Nothing in this section shall restrict any right which
any person (or class of persons) may have under any
statute or common law to seek enforcement of any
effluent standard or limitation or to seek any other
relief (including relief against the Administrator or
a State agency).
7 Under this interpretation, § 1370(2) is not reduced to a nullity.
The provision ensures that states retain their power to regulate
discharges within their “waters (including boun waters).”” See
supra n.1.
A-23
The Supreme Court concluded this
subsection is common language accompanying citizen-
suit provisions and . . . means only that the provi-
sion of such suit does not revoke other remedies. It
most assuredly cannot be read to mean that the Act
as a whole does not supplant formerly available fed-
eral common-law actions but only that the particular
section authorizing citizen suits does not do so.
Milwaukee II, 451 U.S. at 329.
This provision may well preserve a right under statutes
or the common law of the state within which a discharge
occurs (State I) to obtain enforcement of prescribed stand-
ards or limitations, and we see no reason why such a right
could not be asserted by an out-of-state plaintiff injured
as a result of the violation. However, it seems implausible
that Congress meant to preserve or confer any right of
the state claiming injury (State IJ) or its citizens to seek
enforcement of limitations on discharges in State I by ap-
plying the statutes or common law of State II. Such a
complex scheme of interstate regulation would undermine
the uniformity and state cooperation envisioned by the
Act. For a number of different states to have independent
and plenary regulatory authority over a single discharge
would lead to chaotic confrontation between sovereign
states. Dischargers would be forced to meet not only the
statutory limitations of all states potentially affected by
their discharges but also the common law standards de-
veloped through case law of those states. It would be
virtually impossible to predict the standard for a lawful
discharge into an interstate body of water. Any permit
issued under the Act would be rendered meaningless. In our
opinion Congress could not have intended such a result.
There is nothing to suggest that the actions before us
were brought to seek enforcement of an effluent standard
or limitation. In any event we think that the reference
in § 1365(e) to statute or common law, like the reference
to right or jurisdiction of a state in § 1370, is to a statute
%.
A-24
or the common law of the state in which the discharge
occurs.8
VI. CONCLUSION
A. Milwaukee Case
Illinois asks us to affirm the district court judgment on
the basis of the Illinois state law claims. It has not sought
to enforce an effluent limitation under Wisconsin statu-
tory or common law nor sought to enforce federal limita-
tions as provided for under the 1972 FWPCA. Because
we hold that the logic of Milwaukee I and Milwaukee II
and the 1972 FWPCA preclude the type of application of
state law sought by Illinois in the area of interstate water
pollution, the judgment of the district court is reversed
and the case remanded for dismissal.
B. Illinois v. Hammond
The pleadings in this case and the Scott case make it
clear that the causes of action asserted rely on the ap-
plication of Illinois statutory and common law. Nothing
in the pleadings suggests a resort to Indiana law or the
1972 FWPCA. The order of the district court is reversed
and the case remanded for dismissal.
C. Scott v. Hammond
There is an additional reason for dismissal of the Scott
complaint, apart from the preclusive effect of 1972
FWPCA on a cause of action based on the Illinois law
of nuisance. He has not alleged harm of a kind different
8 This construction is consistent with this court’s former reading
of the saving clause. In U. S. Steel Corp. v. Train, 556 F.2d 822,
830 (7th Cir. 1977) we said, “Congress has chosen not to preempt
state regulation when the state has decided to force its industry
to create new and more effective pollution control technology.”
(Emphasis added.)
A-25
from that suffered by other members of the public exer-
cising the right common to the general public which was
allegedly interfered with by defendants. RESTATEMENT
(SECOND) OF TorTs § 821C (1977). The order of the district
court is reversed and the case remanded for dismissal.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
B-1
APPENDIX B
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
(DECIDED MARCH 27, 1984)
May 29, 1984
Before Hon. WALTER J. CUMMINGS, Chief Judgc
Hon. WILBUR F. PELL, JR., Circuit Judge
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. JESSE E. ESCHBACH, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
No. 77-2246
PEeopLe Or THE State OF ILLINOIS,
Plaintiff-Appellee,
and
PeopLeE Or THE State OF MICHIGAN,
Intervening Plaintiff-Appellee,
v.
City Or MILWAUKEE, THE SEWERAGE ComMMISSION OF THE
City Or MILWAUKEE and THE METROPOLITAN SEWERAGE
Commission Or THE County Or MILWAUKEE,
Defendants-A ppellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 72 C 1253—John F. Grady, Judge.
Upon Remand from the United States Supreme Court, No. 79-408
(Caption continued on following page)
%
;
é
:
;
B-2
No. 81-2236
Wi.uiaM J. Scott, on his own behalf and on behalf of all
persons similarly situated,
Plaintiff,
v.
City Or Hammonp, INDIANA; UNITED STATES ENVIRON.
MENTAL PROTECTION AGENCY; DoucLas M. CostLe, Ad-
ministrator of the United States Environmental Protection
Agency; and the HAMMOND-MUNSTER SANITARY DIsTRICT,
Defendants,
and
PeopLeE Or THE State OF ILLinois and the METROPOLITAN
SANITARY District Or GREATER CHICAGO, a municipal
corporation,
Plaintiffs,
v.
THE SANITARY District Or HAMMoND, a municipal cor-
poration; JosepH A. Perry; THomas C. CoNnLEY; GILBERT
De Lancy; THEODORE DUNAJESKI; and the City OF
HAMMOND, INDIANA, a municipal corporation,
Defendants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 80 C 4563 and 80 C 4775—John Powers Crowley, Judge.
ORDER
Petitions for rehearing with suggestions of rehearing
in banc have been filed in the above entitled cases. A vote
of all the judges in regular active service was requested,
but a majority of those participating! voted to deny re-
1 Circuit Judges Posner and Flaum did not participate in the con-
sideration or decision of these matters.
B-3
hearing in bane.2 The members of the panel* voted to
deny the petition for rehearing. Accordingly,
It Is ORDERED that the petitions for rehearing are
DENIED.
The petitions included requests that this court’s judgment
be modified so as to permit further proceedings on re-
mand under Wisconsin and Indiana law in lieu of the
dismissal this court has directed. The requests are
DENIED.
It Is FURTHER ORDERED by the panel that footnote 2
of the opinion be revised to read as follcws:
2 Our decision here js iimited to the context of these
cases, and to a holding that a remedy provided by
the law of Illinois is not available herein. We do not
address other dimensions of the complex legal issues
that may be presented in transboundary pollution
cases brought in the domestic courts of the state of
discharge or the state of impact. See, e.g., Michie v.
Great Lakes Steel Division, National Steel Corp., 495
F.2d 213, 215 (6th Cir.) (application of law of state
of discharge to international pollution dispute), cert.
denied, 419 U.S. 997 (1974); Sierra Club v. Adams,
578 F.2d 389, 391 n.14 (D.C. Cir. 1978) (application
of United States law to federal government actions
abroad affecting environment). See also Ohio v.
Wyandotte Chemical Corp., 401 U.S. 493, 502-03
(1971) (involvement of many state, interstate and
international agencies in water pollution dispute sup-
ported Court’s denial of leave to file original com-
plaint); Georgia v. Tennessee Copper Co., 206 U.S.
230 (1907) (applying federal common law to interstate
air pollution dispute). Nothing in our decision pre-
cludes the application of Wisconsin or Indiana law by
state or federal courts in one of those states at the
suit of out of state parties affected by discharges in
that state.
2 Circuit Judges Pell, Bauer, and Wood voted to grant rehear-
ing in banc.
3 Circuit Judge Cudahy and Senior Circuit Judge Fairchild.
C-1
APPENDIX C
Opinion by Judge Fairchild
JUDGMENT ORDER
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
March 27, 1984
Before Hon. ROBERT A. SPRECHER, Circuit Judge*
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. THOMAS E. FAIRCHILD, Senior Circuit Judge
No. 77-2246
PreopLeE Or THE State OF ILLINOIS,
Plaintiff-Appellee,
and
People Or THE StaTE OF MICHIGAN,
Intervening Piaintiff-Appellee,
v.
City Or MILWAUKEE, THE SEWERAGE ComMISSION OF THE
City Or MILWAUKEE and THE METROPOLITAN SEWERAGE
ComMISsION Or THE County OF MILWAUKEE,
Defendants-Appellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 72 C 1258—John F. Grady, Judge.
On Remand from the United States Supreme Court No. 79-408
* Circuit Judge Robert A. Sprecher heard oral argument and
voted at the post-argument conference to affirm. He died on May
15, 1982, before the preparation of the opinion.
C-2
This cause came before the court on remand from the
United States Supreme Court, and was reargued by
counsel.
On consideration whereof, IT Is ORDERED AND AD.
JUDGED by this court that the judgment of the district
court is REVERSED, and the case is REMANDED For DiIs-
MISSAL, in accordance with the opinion of this court filed
this date.
It Is FURTHER ORDERED that appellants, City of Mil-
waukee, et al., recover from Illinois and Michigan the
amount of $9,336.49 for costs allowed by the United States
Supreme Court, and also recover costs on appeal in this
court.
D-1
APPENDIX D
Opinion by Judge Fairchild
JUDGMENT ORDER
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
March 27, 1984
Before Hon. ROBERT A. SPRECHER, Circuit Judge*
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. THOMAS E. FAIRCHILD, Senior Circuit Judge
No. 81-2236
WILLIAM J. Scott, on his own behalf and on behalf of all
persons similarly situated,
Plaintiff-Appellee,
v.
City Or Hammonp, INDIANA; UNITED STATES ENVIRON-
MENTAL PROTECTION AGENCY; Doucuas M. Coste, Ad-
ministrator of the United States Environmental Protection
Agency; and the HAmMMonD-MuNSTER SANITARY DISTRICT,
Defendants-Appellants,
(Caption continued on following page)
a
* Circuit Judge Robert A. Sprecher heard oral argument and
voted at the post-argument conference to affirm. He died on May
15, 1982, before the preparation of this opinion.
D-2
and
PreopLe Or Tue State OF ILuinois and the METROPOLITAN
SANITARY District Or GREATER CHICAGO, a municipal
corporation,
Plaintiffs-Appellees,
v.
THE Sanitary District Or HAMMOND, a municipal cor-
poration; JosepH A. Perry; THomas C. CoNnLEy; GILBERT
De Lancy; THEODORE DUNAJESKI; and the City OF
HAMMOND, INDIANA, a municipal corporation,
Defendants-Appellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 80 C 4563 and 80 C 4775—John Powers Crowley, Judge.
This cause was heard on the record from the United
States District Court for the Northern District of Illinois,
and was argued by counsel.
On consideration whereof, IT Is ORDERED AND AD.
JUDGED by this court that the order of the said District
Court in this cause be, and the same is hereby, RE-
VERSED, with costs, and the cause is REMANDED For DIs-
MISSAL, in accordance with the opinion of this court filed
this date.
E-1
APPENDIX E
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
July 16, 1981
Before Hon. THOMAS E. FAIRCHILD, Circuit Judge
Hon. WILBUR F. PELL, JR., Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
WiLuiaM J. Scort,
Petitioner,
Mise. No. 81-8044 vs.
Crry Or Hammonp, Inp1Ana, et al.,
Respondents.
a ak ae ee
Tue SANITARY District Or HAMMOND, et al.,
Petitioners,
Mise. No. 81-8045 vs.
PeopLE Or THe State Or ILLINOIS and METROPOLITAN
Sanirary District Or GREATER CHICAGO,
Respondents.
Petitions for permission to appeal.
United States District Court for the Northern District
of Illinois, Eastern Division.
Nos. 80-C-4563 & 80-C-4775—Judge John Powers Crowley
E-2
Upon consideration of the petitions of petitioner, William
J. Seott, and of the Hammond respondents for permis-
sion to ap under 28 U.S.C. 1292(b), and of the answers
thereto of William J. Scott and respondents, People of the
State of Illinois,
It Is ORDERED that permission to appeal is GRANTED.
It Is FURTHER ORDERED that these appeals are con-
solidated with each other and with Illinois v. City of
Milwaukee, 77-2246, which is on remand from the
Supreme Court. See City of Milwaukee v. Illinois and
Michigan, ..... US. ....., 101 S.Ct. 1784 (1981).
It Is FURTHER ORDERED that on or before July 23,
1981, the parties contact the Senior Staff Attorney, John
L. Gubbins, for the purpose of scheduling a docketing con-
ference pursuant to Fed.R.App.P. 33 and Circuit Rule 3.
F-1
APPENDIX F
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Wi.uiaM J. Scorr, on his own behalf and on behalf of all
persons similarly situated,
Plaintiff,
No. 80 C 4563 v.
City Or Hammonv, InpiANnA; Unitep States ENvIRON-
MENTAL PROTECTION AGENCY; DouGcLas M. CostLe, Ad-
ministrator of the United States Environmental Pro-
tection Agency, HamMMonD-MunsTeR Sanitary District,
Defendants.
PeopLte Or Tue State Or ILuinois and the METROPOLITAN
Sanitary District Or GREATER CHICAGO, a municipal
corporation,
Plaintiffs,
No. 80 C 4775 v.
THe Sanitary District Or HammMonp, a municipal cor-
poration; JosepH A. Perry; THomas C. Con.ey; GILBERT
De Lancy; THEopoRE DuNAJEsKI; and the City OF
HAMMOND, INDIANA, a municipal corporation,
Defendants.
F-2
MEMORANDUM OPINION AND ORDER
John Powers Crowley, District Judge
This matter comes before the court on defendants’ mo-
tions to dismiss. For the reasons stated below, those mo-
tions are denied.
These two lawsuits (among others) arose from the pollu-
tion of Lake Michigan and the fouling of many Chicago
public beaches last summer. Both complaints allege that
the City of Hammond and the Sanitary District of Ham-
mond (collectively, “‘Hammond”) discharged large quanti-
ties of raw and inadequately treated sewage into Lake
Michigan which was carried by the currents onto Chi-
cago’s beaches. Each complaint asserts several causes of
action based upon federal common law of nuisance, IIli-
nois common and statutory law of nuisance, Illinois com-
mon law of trespass, and Illinois statutory environmen-
tal law. In light of City of Milwaukee v. Illinois, ..... US.
shag , 49 U.S.L.W. 4445 Y (April 28, 1981) (“Milwaukee IT’),
the federal common law counts must be dismissed. The
issue presented here, then, is whether the causes of ac-
tion based on Illinois law state. claims for which relief may
be granted against these non-lIllinois defendants.
For this court, the first question presented by this issue
is the effect of a Seventh Circuit decision that appears
to be squarely on point in support of Hammond’s posi-
tion that federal law is the exclusive source of remedy
for Illinois, Scott and the Metropolitan Sani District
of Greater Chicago (“MSD”). In City of Evansville v. Ken-
tucky Liquid Recycling, 604 F. 2d 1008 (7th Cir. 1979),
the Indiana municipality sought damages from several
Ohio defendants under state a federal laws governing
discharges into waterways. Among other rulings, the court
affirmed the dismissal of plaintiff's state law claims.
Although the dismissal holding is unequivocal, the basis
for that decision is not altogether clear. The rationale pro-
vided for the dismissal is only a quote from the court’s
earlier opinion in Illinois v. City of Milwaukee, 599 F.
2d 151, 177 n.53 (7th Cir. 1979), vacated, 49 U.S.L.W.
F-3
_ (April 28, 1981) (“Milwaukee (7th Cir.)’’): “{I}t is federal
common law and not state statutory or common law that
controls in this case.’’?
Illinois and Scott argue separate theories contending the
Evansville holding is no longer controlling, while Ham-
mond, of course, submits that Evansville is both valid and
binding. Illinois maintains that a more recent Seventh Cir-
cuit opinion than Evansville clarifies the issue in this Cir-
cuit. In Jllinois v. Outboard Marine Corp., 619 F. 2d 623
(7th Cir. 1980), the court held that Illinois can maintain
a federal common law cause of action against an in-state
pollution source to prevent pollution of interstate or navi-
gable waters. Within that opinion, the court reasoned that
there should be uniform federal law governing the federal
tort of polluting federal waters. 619 F. 2d at 628. In a
footnote reference, the court stated that the uniformity
it and Illinois v. City of Milwaukee, 406 U.S. 91 (1972),
(“Milwaukee I’’), envisioned was a uniform flocr. There-
fore, a state could “undertake more stringent pollution
control than that offered by federal statute or common
law [under] its own statutes and common law.” 619 F.
2d at 628 n. 16. Illinois argues that this language, being
the most recent language of the court, supercedes Evans-
ville and establishes the right to bring these state law
claims here.
Scott presents an entirely different argument as to why
Evansville is not binding on the court. His argument is
premised on the assertion that because the only founda-
tion for the Evansville decision is the Milwaukee (7th Cir.)
decision, Evansville’s validity is c2pendent on the con-
tinuing validity of Milwaukee (7th Cir.). Milwaukee II
vacated and remanded Milwaukee (7th Cir.). Scott’s
theory, then, is that the whole Seventh Circuit opinion,
including footnote 53, is no longer in existence and can-
not be precedent for any other decision. Therefore, Scott
argues, Evansville is no longer valid and the issue of ap-
plication of state law to out-of-state pollutants is unre-
solved in this Circuit.?
F-4
In response to Illinois’ argument, Hammond contends
that the Outboard Marine decision applies only to an in-
state polluter, which was the case before the court. Ham-
mond submits this limitation on Outboard Marine is par-
ticularly appropriate because the court never referred to
Milwaukee (7th Cir.) or Evansville. In response to Scott’s
argument, Hammond asserts that Milwaukee II has a dif-
ferent effect on Milwaukee (7th Cir.). It maintains that
based on the rationale of Milwaukee II, i.e., federai com-
mon law has been supplanted by federal statutory law,
the vacating order means the Seventh Circuit must re-
place the remedies it upheld under common law with per-
missible federal statutory remedies. All other provisions
of Milwaukee (7th Cir.), Hammond argues, remain valid
law. Hammond further submits that this interpretation
is buttressed by the Supreme Court’s disposition of IIli-
nois’ cross-petition for certiorari on the issue of whether
state law was available to Illinois. Hammond contends
that if the Supreme Court had intended the Seventh Cir-
cuit to reconsider its decision on state law, the Court
would have specifically directed reconsideration in light
of Milwaukee II instead of simply denying certiorari at
ee USS. ....., 49 U.S.L.W. 3863 (May 18, 1981). For Ham-
mond, the denial of certiorari means the Seventh Circuit’s
determination on state law remains the law.
Although all the parties have presented viable argu-
ments on this somewhat knotty precedent issue, Scott’s
contentions are more persuasive. The denial of certiorari
on Illinois’ petition should not be attributed any signifi-
cant meaning. Commentators and courts have continual-
ly recognized that denial of certiorari has no preceden-
tial weight. Further, as Scott suggests, the Court may
have denied certiorari because it had already vacated the
Milwaukee (7th Cir.) opinion and there was no longer a
case for which to grant the petition. Milwaukee II must
be interpreted as vacating the entire Milwaukee (7th Cir.)
opinion, including footnote 53 which states that federal
common law, not state law, is controlling. Because foot-
note 53 is the only rationale provided in Evansville for
ee en ea on ket a ae
F-5
the decision that state law claims do not apply, Evansville
is no longer binding precedent on that issue. Therefore,
an independen< analysis of the question is appropriate.
Hammond contends that this issue presents a question
of federal law, because the question is whether our federal
system permits state substantive rights to be given extra-
territorial application. The fundamental position of Ham-
mond is that a state does not have the power to impose
its law on an out-of-state discharger of wastes into an
interstate body of water. Thus, Hammond disputes IIli-
nois’ initial premise that Illinois law provides a source of
rights for which the Erie doctrine mandates Illinois law
to govern. Of course, Hammond’s first argument in sup-
port of its views is that the Evansville case conclusively
established the invalidity of state claims in this case. As
earlier noted though, Evansville provided no analysis for
its conclusion. Thus, Hammond seeks support for its posi-
tion in decisions from other circuits and from language
in Milwaukee I and II.
In recognizing the existence of federal common law, the
Court in Milwaukee I analogized the pollution issue to
the equitable apportionment of interstate streams and es-
tablishment of state boundaries. In those areas of law,
federal common law had developed because they
presented federal questions. Milwaukee I also quoted an
earlier Tenth Circuit opinion which had recognized federal
common law as governing water pollution nuisances.
Milwaukee I, 406 U.S. at 107 n. 9. That court concluded,
“Federal common law and not the varying common law
of the individual States is. . . entitled and necessary to
be recognized as a basis for dealing in uniform standard
with the environmental rights of a State against improper
impairment by sources outside its domain.” Texas v.
Pankey, 441 F. 2d 236, 241-42 (10th Cir. 1971).
Hammond argues that subsequent cases applying Mil-
waukee I further support its contention that federal law
is the exclusive source of rights in this case. In Committee
for the Consideration of the Jones Falls Sewage System
F-6
v. Train, 539 F. 2d 1006 (4th Cir. 1976), the Fourth Cir-
cuit sitting en banc stated that “tre law of the state
whose citizens were subject to injuries by the interstate
pollution ought not to govern the conduct of citizens and
municipalities in another state. . . .” 539 F. 2d at 1008.
In Stream Pollution Control Bd. of Indiana v. United
‘ States Steel Corp., 512 F. 2d 1036 (7th Cir. 1975), the
~ Seventh Circuit stated that the federal common law nui-
sance action raises “substantial questions which only a fed-
eral court may finally answer.” 512 F. 2d at 1040.
These themes were definitively reaffirmed, Hammond
contends, in Milwaukee II. There the Court characterized
as inconsistent Illinois’ argument that both federal and
state nuisance law applied: “If state law can be applied,
there is no need for federal common law; if common law
exists, it is because state law cannot be used.”’ ..... USS.
at ....., 49 U.S.L.W. at 4448 n. 7. Hammond submits, then,
that even though federal common law is now displaced,
its previous existence presupposed the inapplicability of
state law. In any event, Hammond argues that the clear
import of Milwaukee II is that the Federal Water Pollu-
tion Control Act, 33 U.S.C. §1251 et seq. (FWPCA), has
replaced the federal common law and the same analysis
continues to apply to the relationship of FWPCA and
state law.
Hammond contends the reason federal law must be the
plaintiffs’ exclusive source of remedy stems from two im-
portant considerations. First, because every state may
have different and conflicting pollution control standards,
federal law must be exclusive to establish uniformity. Sec-
ond, if state law applies and plaintiffs prevail, then Illi-
nois and its citizens can dictate to another state’s munici-
pality how it should run its sanitary district. This
ultimately could have a significant impact on the city’s
treasury and on local officials’ ability to conduct their own
affairs. Cf. McCulloch v. Maryland, 17 U.S. 315 (1819).
As an alternative to its no state power argument, Ham-
mond asserts that the FWPCA preempts extra-territorial
application of state law. This contention is based on two
Pe es
F-7
premises. First, Milwaukee II described the FWPCA as
“occuplying] the field through the establishment of a com-
prehensive regulatory program supervised by an expert
administrative agency.”’ ..... US. at ....., 49 U.S.L.W. at
4449. Second, Hammond submits that Congress could not
have intended to permit one state to apply its laws re-
quiring stricter standards on an out-of-state discharger and
thereby negate time, effort and money expended by the
federal agency and municipality or industry under the
federal scheme. Hammond submits Congress therefore
must have intended to preempt application of state law
to out-of-state dischargers.
The plaintiffs’ response to Hammond’s position has
many aspects. They contend that Congress, in the FWPCA,
clearly expressed an intent not to preempt state law from
the water pollution control field. Further, plaintiffs assert
that a state’s power to apply its laws to an out-of-state
polluter was not ousted by federal common law of nui-
sance. In any event, plaintiffs submit that whatever valid-
ity that argument had dissipates with the replacement of
federal common law. Therefore, plaintiffs maintain that
the state law claims, basically all sounding in tort, mere-
ly present simple applications of the E’rie doctrine, choice
of law principles, and utilization of court powers under
in personam jurisdiction.
In regard to preemption, plaintiffs contend Congress’
intent is unequivocal. In 33 U.S.C. §1251(b) Congress
stated, “It is the policy of Congress to recognize, pre-
serve, and protect the primary responsibilities of States
to prevent, reduce, and eliminate pollution. . . .” Con-
gress also expressly recognized that states may impose
and enforce more stringent standards than the federal
ones. 33 U.S.C. §§1311(oX1Xk) and 1370. Furthermore, the
FWPCA also provides that it does not restrict any other ©
right a person may have. 33 U.S.C. §1365(e). Thus, Ham-
mond argues the FWPCA does not preempt state law.
In regard to Hammond’s no state power argument, plain-
tiffs contend that Hammond and,the cases it cites read
too much from Milwaukee I. All the cases, they submit,
>
rely on and misinterpret footnotes 5 and 9 in Milwaukee
I. Footnote 5 describes the role that state law plays in
developing federal common law. The Court quoted from
Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-57
(1957), explaining that state law could be relevant and ap-
plied but only as absorbed in the federal law. Milwaukee
I, 406 U.S. at 103 n. 5. Footnote 9 quotes from Texas
v. Pankey, 441 F. 2d 236, 241-42 (10th Cir. 1971), where
the court explained that federal law governs, but state
standards may be relevant. From these footnotes, the
Seventh Circuit concluded “‘it is federal common law and
not state statutory or common law that controls. .. .”
Milwaukee (7th Cir.), 599 F. 2d at 177 n. 58; Evansville,
604 F. 2d at 1021.
Plaintiffs argue that all the courts’ language indicating
only federal law can resolve issues such as the one pre-
sented here merely means that a claim based on federal
common law must be governed by federal law. Further,
they contend that federal common law ousts state law in
only two situations. First, state law is automatically
ousted when state law constitutionally cannot be applied.
The only situation where such a result is mandated is in
cases between two sovereign states. In that event, the
law of neither state can prevail and federal law must
govern. On the other hand, when federal common law is
not based on the constitutional inapplicability of state law
but is “interstitial”, ouster of state law does not auto-
matically follow. Interstitial federal common law is de-
veloped only to fill gaps so that congressional purposes
may be achieved. In that case, plaintiffs contend, state
law can only be preempted if Congress clearly intends
such a result. Because these lawsuits are not between
sovereign states and since Milwaukee I developed in-
terstitial common law, plaintiffs argue only Congress can
preempt concurrent state law. This, as previously dis-
cussed, plaintiffs submit Congress clearly has not done.
Because state law is not preempted or ousted, plain-
tiffs contend that this case should be resolved like any
other tort case. They analogize Hammond’s discharge and
F-9
the resultant injury to a man shooting a gun across a
state line and hitting a victim in another state. The legal
framework for adjudicating their rights, plaintiffs submit,
is simple and clear: 1) venue and in personam jurisdic-
tion exist in Illinois, cf. Milwaukee I], ..... LR ene -
49 U.S.L.W. at 4447 n. 5; 2) state law must apply, Erie
R.R. v. Tompkins, 304 U.S. 64 (1938); 3) Illinois choice
; of law rules apply, Klaxon Co. v. Stentor Mfg. Co., 313
{ U.S. 487 (1941); 4) Illinois substantive law would apply,
j People ex rel Scott v. United States Steel Corp., 40 Ill.
App. 3d 607, 352 N.E. 2d 225 (1976); 5) Illinois’ choice
of its own substantive law does not violate either the due
process or full faith and credit clauses, Allstate Ins. Co.
v. Hague, ..... USS. ....., 49 U.S.L.W. 4071 (January 13,
' #1981); Nevada v. Hall, 440 U.S. 410 (1979); and 6) the
state ~ is not preempted by federal statutory or com-
mon law.
j As in other cases which must be decided after a recent
Supreme Court decision changes what had been recog-
nized as controlling law, this case presents a difficult issue
which, if not actually unresolved before, is presented in
a new context. This motion involves considerations at the
core of our federal system of government and the ap-
propriate divisions of power between legislatures and the
courts. Although this is certainly only the first attempt
at resolving these questions, the court is convinced the
plaintiffs are entitled to seek relief under state law claims.
The first consideration is whether the type of claims
presented here are purely federal questions to which state
law cannot apply. In Milwaukee “I, the Court held that
suing a Wisconsin municipality is not the same as suing
Wisconsin. Thus, neither lawsuit is between two sovereign
states. Furthermore, the issue of regulating and prevent-
ing water pollution does not present the same type of un-
resolvable conflict of state interests that the apportion-
ment of boundaries and water rights does. In the latter
situations, a limited quantity of land or water must be
divided among competing state interests. Thus, only resort
to federal law and authority can resolve those matters.
Steric in a hy Li Ba a
=%
F-10
In the water pollution control field, however, the issue
is not dividing the pie but determining which standards
will regulate discharges and provide remedies for injuries.
It is theoretically possible that no conflicts will occur
among the states because they agree on standards and
remedies needed to protect the water. But in the more
realistic situation where one or the other set of rules must
be recognized as controlling, to adopt the more stringent
laws does not deprive the other state of any water rights.
Indeed, the benefits of stronger controls would redound
to all states involved.
f~
Of course, what the other state and its citizens would
lose is the right to spend less money than it would have
in protecting the water. Yet Nevada v. Hall, 440 U.S.
410 (1979), establishes that there is nothing in the Consti-’
tution or our federal system of government which pro-
hibits the imposition of this loss. In that case, a sovereign
state, Nevada, itself was sued by individual Californians
in California state court for injuries sustained in an auto-
mobile accident. The state court refused to recognize the
immunity Nevada would have in its own courts, reason-
ing that California law did not provide the same immuni-
ty. The California law expressed a policy of providing full
compensation to injured parties, while the Nevada law
reflected a different policy concern. The Supreme Court
concluded that the Constitution “does not require a State
to apply another State’s law in violation of its own legiti-
mate public policy.” 440 U.S. at 422 (footnote omitted).
Certainly a state’s pollution standards reflect a legitimate
public policy. If that policy ean be enforced against a
sovereign state, it can be against a municipality, regard-
less of the strain on the treasury.
Of course, it must be recognized that the court opin-
ions Hammond relies on seem to indicate that interstate
pollution of interstate waters creates a federal question
for which state law may only be used as guidelines, if
at all. However, in each case, the court was addressing
the contours of the federal common law. Now that there
is no separate common law but only federal statutory law,
x
¥
is
%
he
on
4
%
a
:
=
%
:
%
$
4
%
P24
2
¥
a
;
y
F-11
the statute must be examined to determine whether Con-
gress intended to make these pollution control matters
solely a federal question.
There can be no doubt that the FWPCA does not pre-
empt states from enforcing stricter controls than the Fed-
eral government or in-state polluters. The statutory pro-
visions the plaintiffs point to clearly establish the states’
rights and interests in the field. Further, the courts have
held that the FWPCA does not preempt state law. E.g.,
United States Steel Corp. v. Train, 556 F. 2d 822, 830
(7th Cir. 1977). Additionally, there is nothing in the Act
nor its legislative history that indicates a different re-
sult should be reached when considering an out-of-state
polluter. Hammond’s arguments concerning preemption do
not withstand analysis. When the Milwaukee II Court de-
scribed the scope of the federal legislation it did so in
the context of determining whether federal legislation re-
placed federal common law. The Court expressly recog-
nized that the test for that displacement was less demand-
ing than the clear intent test for preemption of state law.
Milwaukee II, ..... U.S. at ....., 49 U.S.L.W. at 4448-49.
Hammond’s argument of implied intent does not meet this
test.
Having found no preemption of state law, the only re-
maining determination is which state law applies. Ham-
mond 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. Furthermore, because the court has in per-
sonam jurisdiction over Hammond, the relief sought is
within the court’s power. As plaintiffs point out, this
power has been recognized since the Salton Sea Cases,
California Development Co. v. New Liverpool Salt Co.,
172 F’. 792 (9th Cir. 1909). Therefore, the plaintiffs’ state
law causes of action state claims for which relief may be
granted.
As earlier indicated, this is essentially a case of first
impression involving important questions of law. Because
this order concerns a controlling question of law as to
F-12
which there is substantial ground for difference of opin-
ion, an immediate appeal will materially advance the ulti-
mate termination of the litigation. 28 U.S.C. §1292(b). Ad-
ditionally, since the identical issue is apparently before
the Seventh Circuit in the Milwaukee litigation, an im-
mediate appeal of this order would promote efficient use
of the litigant’s and judiciary’s resources. An application
for appeal, though, shall not stay proceedings in this court.
Accordingly, defendants’ motions to dismiss are denied.
/s/_ JOHN POWERS CROWLEY
John Powers Crowley
United States District Judge
DATED: June 24, 1981.
1 The dismissal of the federal law claim does not defeat subject
matter jurisdiction here. The Scott case is based upon diversity
jurisdiction, which remains. The IJllinois and Me litan Sani-
tary District case was removed from the Circuit Court of Cook
County based upon federal question jurisdiction and pendent
jurisdiction exercised over the state law claims. Although the
federal law claim is now dismissed, the court has discretion to re-
tain pendent jurisdiction. Rosado v. Wyman, 397 U.S. 397, 404-5
(1970). Because this case has progressed for nine months in this
court with two agreed orders entered and because it raises issues
similar to those in Scott and other cases, the interests of con-
venience and judicial economy dictate the retention of jurisdiction.
2 Illinois petitioned for certiorari on this part of Mi!waukee (7th
Cir), but it was denied. ..... US. ....., 49 U.S.L.W. 3868 (May 18,
1981).
3 On remand in the Seventh Circuit, Illinois will take the posi-
tion that the district court had correctly applied state law against
Milwaukee.
4 The distinction that the entire tort was committed in California
while this tort travels across state lines via a’‘navigable water is
immaterial. The crucial elements are that a tort injury has oc-
curred in Illinois and that Illinois has a legitimate public policy
in redressing that injury.
5 Hammond initially argued (and then apparently abandoned) that
plaintiff Scott could not maintain an Illinois common law nuisance.
However, the Illinois Constitution, Art. XI, §2 (1970) clearly estab-
lishes his right to enforce environmental rights.
F-13
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Wi.uiaM J. Scott, on his own behalf and on behalf of all
persons similarly situated,
Plaintiff,
No. 80 C 4563 v.
City Or Hammonp, INDIANA; UNITED States ENVIRON-
MENTAL PROTECTION AGENCY; DoucLas M. CosTie, Ad-
ministrator of the United States Environmental Pro-
tection Agency, HamMmMonD-MunstTeER Sanitary District,
Defendants.
Prope Or THE State OF ILLINOIS and the METROPOLITAN
SANITARY District Or GREATEK CHICAGO, a municipal
corporation,
Plaintiffs,
No. 80 C 4775 v.
THE Sanitary District Or HAMMOND, a municipal cor-
poration; JosEPpH A. Perry; THomas C. CoNnLEY; GILBERT
Dre Lancy; THEODORE DUNAJESKI; and the City OF
HAMMOND, INDIANA, a municipal corporation,
Defendants.
CERTIFICATE FOR INTERLOCUTORY APPEAL
John Powers Crowley, District Judge
I certify that the issues resolved by the Memorandum
Opinion and Order dated June 24+ 1981 involve control-
ling questions of law as to which there-is substantial
F-14
ground for difference of opinion and that an immediate
appeal from the Order may materially advance the ulti-
mate termination of the litigaticn.
/s/ JOHN POWERS CROWLEY
John Powers Crowley
United States District Judge
DATED: June 24, 1981.
G-1
APPENDIX G
SUPREME COURT OF THE UNITED STATES
No. 79-408
City OF MILWAUKEE ET AL.,
Petitioners,
v.
STATES OF ILLINOIS AND MICHIGAN.
On Writ of Certiorari to the United States
Court of Appeals for the’ Seventh Circuit.
[April 28, 1981]
JUSTICE REHNQUIST delivered the opinion of the Court.
When this litigation was first before us we recognized
the existence of a federal “common law” which could give
rise to a claim for abatement of a nuisance caused by in-
terstate water pollution. Illinois v. Milwaukee, 406 U.S.
91 (1972). Subsequent to our decision, Congress enacted
the Federal Water Pollution Control Act Amendments of
1972. We granted certiorari to consider the effect of this
legislation on the previously recognized cause of action.
I
Petitioners, the City of Milwaukee, tne Sewerage Com-
mission of the City of Milwaukee, and the Metropolitan
Sewerage Commission of the County of Milwaukee, are
G-2
municipal corporations organized under the laws of Wis-
consin. Together they construct, operate, and maintain
sewer facilities serving Milwaukee County, an area of
some 420 square miles with a population of over one
million people.’ The facilities consist of a series of sewer
systems and two sewage treatment plants located on the
shores of Lake Michigan 25 and 39 miles from the Illinois
border, respectively. The sewer systems are of both the
“separated” and ‘“‘combined”’ variety. A separated sewer
system carries only sewage for treatment; a combined
sewer system gathers both sewage and storm water run-
off and transports them in the same conduits for treat-
ment. On occasion, particularly after a spell of wet
weather, overflows occur in the system which result in
the discharge of sewage directly into Lake Michigan or
tributaries leading into Lake Michigan.2 The overflows
occur at discrete discharge points throughout the system.
‘
1 It is the statutory responsibility of the city commission to “pro-
ject, plan, construct, maintain and establish-a sewerage system
for the collection, transmission, and disposal of all sewage and
drainage of the city.’’ Wis. Stat. § 62.41 (1). The city commission
is specifically given the authority to “plan, construct, and estab-
lish all local, district, lateral, intercepting, outfall or other sewers,
and all conduits, drains and pumping or other plants, and all build-
ings, structures, works, apparatus, or agencies, and to lay ail mains
and pipes, and to create or use all such instrumentalities and
means . . . as it deems expedient or necessary for carrying the
sewerage system. . . into full effect.” Jd., § 62.61 (1Xd). The coun-
ty commission is responsible for the construction of sewers within
the metropolitan area but outside | limits. Id., § 59.96 (6a). The
city operates some sewers within the city, although the powers
of the city commission include the use and alteration, in its discre-
tion, of “any or all existing public sewers or drains, including
storm water sewers and drains, in the city.” Id., § 62.61 (1Xe). Any
construction by the city of local or sanitary sewers is subject to
the prior written approval of the city commission. Jd., § 62.67.
2 Combined sewers are obviously more susceptible to overflows
after storms because the storm water is transported in the same
conduits as the sewage. Since ground water and water from storm
sewers occasionally enter separated sewers, overflows in those
systems are also more likely during wet weatner. When the
system is about to exceed its inherent capacity at given points,
t
COT eee Re TT Oe ee
G-3
Respondent Illinois: complains that these discharges, as
well as the inadequate treatment of sewage at the two
treatment plants, constitute a threat to the health of its
citizens. Pathogens, disease-causing viruses and bacteria,
are allegedly discharged into the lake with the overflows
and inadequately treated sewage and then transported by
lake currents to Illinois waters. Illinois also alleges that
nutrients in the sewage accelerate the eutrophication, or
aging, of the lake.* Respondent Michigan intervened on
this issue only.
Illinois’ claim was first brought to this Court when IIli-
nois sought leave to file a complaint under our original
jurisdiction. Illinois v. Milwatikee, 406 U.S. 91 (1972). We
declined to exercise original jurisdiction because the
dispute was not between two States and Illinois had avail-
able an action in federal distfict court. The Court rea-
soned that federal law applied to the dispute, one between
a sovereign State and political subdivisions of another
State concerning pollution of interstate waters, but that
the various laws which Congress had enacted “touching
interstate waters’’ were “not necessarily the only federal
remedies available.” Jd., at 101, 108. Illinois could appeal
to federal common law to abate a public nuisance in inter-
state or navigable waters. The Court recognized, however,
that:
“Tt may happen that new federal laws and new fed-
eral regulations may in time pre-empt the field of fed-
eral common law of nuisance. But until that time
comes to pass, federal courts will be empowered to
appraise the equities of the suits alleging creation of
a public nuisance by water pollution.” /d., at 107.
overflow devices, either mechanical or gravity, are activated,
resulting in the discharge of the effluent. See 599 F. 2d, at 167-168.
8 Eutrophication is the natural process by which the nutrient con-
centration in a body of water gradually increases. The process is
allegedly acceleratec when nutrients in sewage, particularly
phosphorus, are discharged into the water. See 599 F. 2d, at 169,
n. 39.
G-4
On May 19, 1972, Illinois filed a complaint in the United
States District Court for the Northern District of Illinois,
seeking abatement, under federal common law, of the
public nuisance petitioners were allegedly creating by
their discharges.
Five months later Congress, recognizing that ‘‘the Fed-
eral water pollution control program . . . has been inade-
quate in every vital aspect,” S. Rep. No. 92-414, 92d
Cong., 1st Sess., at 7, 2 A Legislative History of the
Water Pollution Control Act Amendments of 1972, 1425
(hereinafter Leg. Hist.), passed the Federal Water Pollu-
- tion Control Act Amendments of 1972, Pub. L. 92-500,
86 Stat. 816. The Amendments established a new system
of regulation under which it is illegal for anyone to dis-
charge pollutants into the Nation’s waters except pursuant
to a permit. §§ 301, 402; 33 U.S.C. §§ 1311, 1342. To the
extent that the Environmental Protection Agency, charged
with administering the Act,. has promulgated regulations
establishing specific effluent limitations, those limitations
are incorporated as conditions of the permit. See generally
EPA v. State Water Resources Control Board, 426 U.S.
200 (1976). Permits are issued either by the EPA or a
qualifying state agency. Petitioners operated their sewer
systems and discharged effluent under permits issued by
the Wisconsin Department of Natural Resources (DNR),
4 The complaint also sought relief, in counts II and III, under
Illinois statutory and common law. See Joint App. 29-32. The
District Court stated that ‘the case should be decided under the
principles of the federal common law of nuisance,” App. to Pet.
for Cert. F-2, but went on to find liability on all three counts of
the complaint, id., at F-24. The Court of Appeals ruled that “it
is federal common law and not state statutory or common law that
controls this case, Illinois v. Milwaukee, supra, 406 U.S., at 107,
and n. 9, and therefore we do not address the state law claims.”
599 F. 2d, at 177, n. 53. Although respondent Illinois argues this
int in its brief, the issue before us is sirxply whether federal
egislation has supplanted federal common law. The question
whether state law is also available is the subject of Illinois’ peti-
tion for certiorari, No. 79-571.
G-5
which had duly qualified under § 402 (b) of the Act, 33
U.S.C. § 1342 (b), as a permit granting agency under the
superintendence of the EPA. See EPA v. State Water Re-
sources Control Board, 426 U.S., at 208. Petitioners did
not fully comply with the requirements of the permits and,
as contemplated by the Act, § 402 (b\7), 33 U.S.C.
§ 1342 (bX7), see Wis. Stat. § 147.29, the state agency
brought enforcement action in state court. On May 25,
1977, the state court entered a judgment requiring dis-
charges from the treatment plants to meet the effluent
limitations set forth in the permits and establishing a
detailed timetable for the completion of planning and ad-
ditional construction to control sewage overflows.
Trial on Illinois’ claim commenced on January 11, 1977.
On July 29 the District Court rendered a decision find-
ing that respondents had proved the existence of a nut
sance under federal common law, both in the discharge
of inadequately treated sewage from petitioners’ plants
and in the discharge of: untreated sewage from sewer
overflows. The court ordered petitioners to eliminate all
overflows and to achieve specified effluent limitations on
treated sewage. App. to Pet. for Cert. F-25-26. A judg-
ment order entered on November 15 specified a construc-
tion timetable for the completion of detention facilities to
eliminate overflows. Separated sewer overflows are to be
completely eliminated by 1986; combined sewer overflows
by 1989. The detention facilities to be constructed must
be large enough to permit full treatment of water from
any storm up to the largest storm on record for the Mil-
waukee area. Jd., at D. Both the aspects of the decision
concerning overflows and concerning effluent limitations,
with the exception of the effluent limitation for phos-
phorus, went considerably beyond the terms of petitioners’
previously issued permits and the enforcement order of
the state court.
On appeal, the Court of Appeals for the Seventh Cir-
cuit affirmed in part and reversed in part. The court ruled
that the 1972 amendments had not pre-empted the federal
common law of nuisance, but that “{iJn applying the fed-
G-6
eral common law of nuisance in a water pollution case,
a court should not ignore the Act but should look to its
policies and principles for guidance.” 599 F. 2d, at 164.
The court reversed the District Court insofar as the ef-
fluent limitations it imposed on treated sewage were more
stringent than those in the permits and applicable EPA
regulations. The order to eliminate all overflows, however,
and the construction schedule designed to achieve this
goal, were upheld.
II
Federal courts, unlike state courts, are not general com-
mon law courts and do not possess a general power to
develop and apply their own ruies of. decision. Erie R.
Co. v. Tompkins, 304 U.S. 64, 78 (1938); United States
v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812). The
enactment of a federal rule in an area of national con-
cern, and the decision whether to displace state law in
doing so, is generally made not by the federal judiciary,
purposefully insulated from democratic pressures, but by
the people through their elected representatives in Cor-
gress. Wallis v. Pan American Petroleum Corp., 384 U.S.
63, 68 (1966).6 Erie recognized as much in ruling that a
federal court could not generally apply a federal rule of
5 The Court of Appeals also rejected petitioners’ contentions that
there was no in personam jurisdiction under the Illinois long-arm
statute, that any exercise of in onam jurisdiction failed to
meet the minimum contacts test of International Shoe v. Washing-
ton, 326 U.S. 310 (1945), and that venue was improper. 599 F. 2d,
at 155-157. We agree that, given the existence of a federal com-
mon law claim at the commencement of the suit, prior to the enact-
ment of the 1972 amendments, personal jurisdiction was properly
exercised and venue was also proper.
6 See Hart, The Relations Between State and Federal Law, 54
Colum. L. Rev.. 489, 497 (1954) (“federal intervention has been
thought of as requiring special justification, and the decision that
such justification has begn shown, being essentially discretionary,
has belonged in most cases to Congress”).
G-7
decision, despite the existence of jurisdiction, in the
absence of an applicable Act of Congress.
When Congress has not spoken to a particular issue,
however, and when there exists a “significant conflict be-
tween some federal policy or interest and the use of state
law,” Wallis, 384 U.S., at 68,’ the Court has found it
necessary, in a “few and restricted”’ instances. Wheeldin
v. Wheeler, 373 U.S. 647, 651 (1968), to develop federal
common law. See, e.g., Clearfield Trust Co. v. United
States, 318 U.S. 368, 367 (1943). Nothing in this process
suggests that courts are better suited to develop national
policy in areas governed by federal common law than they
are in other areas, or that the usual and important con-
cerns of an appropriate division of functions between the
Congress and the federal judiciary are inapplicable. See
TVA v. Hill, 487 U.S. 153, 194 (1978); Diamond v. Chak-
rabarty, 447 U.S. 303, 317 (1980); United States v. Gilman,
347 U.S. 507, 511-513 (1954). We have always recognized
that federal common law is ‘“‘subject to the paramount
authority of Congress.” New Jersey v. New York, 283
U.S. 336, 348 (1931). It is resorted to ‘“‘{iJn the absence
of an applicable Act of Congress,” Clearfield Trust, 318
U.S., at 367. And because the Court is compelled to con-
sider federal questions “which cannot be answered from
federal statutes alone,” D’Oench, Duhme & Co., Inc. v.
FDIC, 315 U.S. 447, 469 (1941) (Jackson, J., concurring).
See also Board of Commissioners v. United States, 308
U.S. 348, 349 (1939); United States v. Little Lake Misere
Land Co., 412 U.S. 580, 594 (1973); Miree v. DeKalb Coun-
ty, 483 U.S. 25, 35 (1977) (BuRGER, C.J., concurring).
Federal common law is a “necessary expedient,’’ Com-
mittee for the Consideration of the Jones Falls Sewage
System v. Train, 539 F. 2d 1006, 1008 (CA4 1976) (en ~-
7 In this regard we note the inconsistency in Illinois’ argument
and the decision of the District Court that both federal and state
nuisance law apply to this case. If state law can be applied, there
is no need for federal common law; if federal common law exists,
it is because state law cannot be used.
G-8
banc), and when Congress addresses a question previously
governed by a decision rested on federal common law the
need for such an unusual exercise of lawmaking by federal
courts disappears. This was pointedly recognized in JIli-
‘“nois v. Milwaukee, itself, 406 U.S., at 107 (“new federal
laws and new federal regulations may in time pre-empt
the field of federal common law of nuisance’’), and in the
lower court decision extensively relied upon in that case,
Texas v. Pankey, 441 F. 2d 236, 241 (CA10 1971) (fed-
eral common law applies “(ujntil the field has been made
the subject of comprehensive legislation or authorized ad-
ministrative standards”) (quoted in Illinois v. Milwaukee,
supra, at 107, n. 9).
In Arizona v. California, 373 U.S. 546 (1963), for ex-
ample, the Court declined to apply the federal common
law doctrine of equitable apportionment it had developed
in dealing with interstate water disputes because Con-
gress, in the view of a majority, had addressed the ques-
tion:
“It is true that the Court has used the doctrine
of equitable apportionment to decide river contro-
versies between states. But in those cases Congress
had not made any statutory apportionment. In this
case, we have decided that Congress has provided
its own method for allocating among the lower basin
states the mainstream water to which they are en-
titled under the compact. Where Congress has so
exercised its constitutional power over waters, courts
have no power to substitute their own notions of an
‘equitable apportionment’ for the apportionment
chosen by Congress.”’ Id., at 565-566.
In Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978),
the Court refused to provide damages for “loss of soci-
ety” under the general maritime law when Congress had
not provided such damages in the Death on the High Seas
Act:
“We realize that, because Congress has never
enacted a comprehensive maritime code, admiralty
G-9
courts have often been called upon to supplement
maritime statutes. The Death on the High Seas Act,
however, announces Congress’ considered judgment
on such issues as the beneficiaries, the limitations
period, contributory negligence, survival, and dam-
ages. . . . The Act does not address every issue of
wrongful death law, . . . but when it does speak di-
rectly to a question, the courts are not free to ‘sup-
plement’ Congress’ answers so thoroughly that the
Act becomes meaningless.”’ Jd., at 625.
Thus the question was whether the legislative scheme
“spoke directly to a question’’—in that case the question
of damages—not whether Congress had affirmatively pro-
scribed the use of federal common law. Our “commitment
to the separation of powers is too fundamental’’ to con-
tinue to rely on federal common law “by judicially de-
creeing what accords with ‘common sense and the public
weal’ ”” when Congress has addressed the problem. TVA
v. Hill, 487 U.S., at 195.8
8 The dissent errs in labeling our approach “automatic displace-
ment,” post, at 28. As evident below, pp. 10-16 infra, the question
whether a previously available federal common-law action has been
displaced by federal statutory law involves an assessment of the
scope of the legislation and whether the scheme established by
Congress addresses the problem formerly governed by federal
common law. Our “‘detailed review of respondents’ claims,” post,
at 41, is such an assessment and not, as the dissent suggests, a
consideration of whether the particular common law applied below
was reasonable.
The dissent’s reference to “‘the unique role federal common law
plays in resolving disputes between one state and the citizens
or government of another,” post, at 28, does not advance its argu-
ment. Whether interstate in nature or not, if a dispute implicates
“commerce among the several states” Congress is authorized to
enact the substantive federal law governing the dispute. Although
the Court has formulated “interstate common law,” Kansas v. Col-
orado, 206 U.S. 46, 98 (1907), it has done so not because the usual
separation of powers principles do not apply, but rather because
interstate disputes frequently call for the application of a federal
rule when Congress has not spoken. When _ coeeal has spoken
its decision controls, even in the context of interstate disputes.
See Arizona v. California, supra.
G-10
Contrary to the suggestions of respondents, the appro-
priate analysis in determining if federal statutory law
governs a question previously the subject.of federal com-
mon law is not the same as that em aed in deciding
if federal law pre-empts state law. a considering the
latter question “we start with the assumption that the
historic police powers of the States were not to be super-
seded by the Federal Act unless that was the clear and
manifest purpose of Congress.” Jones v. Rath Packing
Co., 430 U.S. 519, 525 (1977) (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947)). While we have
not hesitated to find pre-emption of state law, whether
express or implied, when Congress has so indicated, see
Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978),
or when enforcement of state regulations would impair
“federal superintendence of the field,” Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 182, 142 (1963),
our analysis has included “‘due regard for the presupposi-
tions of our embracing federal system, including the prin-
ciple of diffusion of power not as a matter of doctrinaire
localism but as a promoter of democracy.” San Diego
Unions v. Garmon, 359 U.S. 236, 248 (1959). Such con-
cerns are not implicated in the same fashion when the
question is whether federal statutory or federal common
law governs and accordingly the same sort of evidence
of a clear and manifest purpose is not required. Indeed,
as noted, in cases such as the present ‘“‘we start with the
assumption”’ that it is for Congress, not federal courts,
to articulate the appropriate standards to be applied as
a matter of federal law.®
® Since the States are represented in Congress but not in the
federal courts, the very concerns about displacing state law which
counsel against finding pre-emption of state law in the absence of
clear intent actually suggest a willi to find congressional dis-
lacement of federal common law. imply because the opinion in
llinois v. Milwaukee used the term Bere agg usually em-
ployed in determining if federal law displaces state law, is no
reason to assume the analysis used to decide the usual federal-
state question is appropriate here.
G-11
Ill
We conclude that, at least so far as concerns the claims
of respondents, Congress has not left the formulation of
appropriate federal standards to the courts through appli-
cation of often vague and indeterminate nuisance concepts
and maxims of equity jurisprudence, but rather has oc-
cupied the field through the establishment of a compre-
hensive regulatory program supervised by an expert ad-
ministrative agency. The 1972 amendments to the Federal
Water Pollution Control Act were not merely another law
“touching interstate waters” of the sort surveyed in JIlv-
nois v. Milwaukee, 406 U.S., at 101-103, and found inade-
quate to supplant federal common law. Rather, the anjend-
ments were viewed by Congress as a “total restructur-
ing” and “complete rewriting” of the existing water pollu-
tion legisiation considered in that case. 1 Leg. Hist.
350-351 (remarks of Chairman Blatnik of the House Com-
mittee which drafted House version of the amendments);
id., at 359-360 (remarks of Rep. Jones). See S. Rep. No.
92-414, at 95, 2 Leg. Hist. 1511; 2 Leg. Hist. 1271 (re-
marks of Chairman Randolph of the Senate Committee
which drafted Senate version of amendments); see also
EPA v. State Water Resources Control Board, 426 U.S.,
at 202-203.1° Congress’ intent in enacting the amendments
was clearly to establish an all-encompassing program of
water pollution regulation. Every point source discharge™
10 The dissent considers the Water Pollution Control Act of 1948
“broad and systematic,” post, at 31, and emphasizes that the court
in Illinois v. Milwaukee did not view then-existing federal stat-
utes as a barrier to the recognition of federal common law, post,
at 30. The suggestion is that the present legislation similarly should
be no barrier. This ignores Congress’ view that the previous
legislation was “inadequate in every vital aspect,” 2 Leg. Hist.
1425, and Congress’ ciear intent, witnessed by the statements and
citations in the text, to do something quite different with the 1972
amendments.
11 “Point source” is defined in § 502 (14) of the Act, 33 U.S.C.
§ 1362 (14), as “any discernible, confined and discrete conveyance
. . . from which pollutants are or may be discharged.” There is
no question that all of the discharges involved in this case are
point source discharges.
painnees cami
G-1
hibited unless covered by a permit, which directly
subjects the discharger to the administrative apparatus
established by Congress to achieve its goals. The “major
purpose” of the oe a was “to establish a compre-
hensive long-range policy for the elimination of water
pollution.” &. Rep. No. 92-414, at 95, 2 Leg. Hist. 151.
(emphasis supplied). No Co ssman’s remarks on the
legislation were complete without reference to the “‘com-
prehensive” nature of the amendments. A House spon-
sor described the bili . most comprehensive and far-
reaching water pollutidm bill we have ever drafted,” 1
Leg. Hist. 369 (Rep. Mizell), and Senator Randolph, Chair-
man of the responsible committee in the Senate, stated
that “It is perhaps the most comprehensive legislation
ever a toy 8 in its field. It is perhaps the most com-
heen g oe egislation that the Congress of the United
tates has ever ee in this particular field of the
environment.” 2 Leg. Hist. 1269.12 This Court was ob-
viously correct when it described the 1972 amendments
as establishing “a comprehensive program for .controlling
and abating water pollution.” Train v. City of New York,
420 U.S. 35, 37 (1975).1* The establishment of such a self-
consciously comprehensive pro by Congress, which
certainly did not exist when Illinois v. Milwaukee was
decided, strongly suggests that there is no room for courts
to attempt to improve on that program with federal com-
mon law. See Texas v. Pankey, 441 F. 2d, at 241."
12 The most casual perusal of the legislative history demonstrates
that these views on the comprehensive nature of the legislation
were practically universal. See, e.g., 1 Leg. Hist. 343 (Rep. Young);
id., at 350 (Rep. Blatnik); id., at 374 >. Clausen); id., at 380
(Rep. Roberts); id., at 425 (Rep. Roe); id., at 450 (Rep. Reuss);
id., at 467 (Rep. Dingell); id., at 481 (Rep. Caffrey); 2 Leg. Hist.
1302 (Sen. Cooper); id., at 1408 (Sen. Hart).
13 The Court of Appeals itself recognized that Congress in the
1972 amendments “established a comprehensive and detailed
system for the regulation and eventual elimination of pollutant
discharges into the nation’s waters.” 599 F. 2d, at 162.
14 This conclusion is not undermined by Congress’ decision to per-
mit States to establish more stringent standards, see § 510, 33
G-13
Turning to the particular claims involved in this case,
the action of Congress in supplanting the federal common
law is perhaps clearest when the question of effluent limi-
tations for discharges from the two treatment plants is
considered. The duly issued permits under which the city
commission discharges. treated sewage from the Jones
Island and South Shore treatment plants incorporate, as
required by the Act, see § 402 (b)(1), 33 U.S.C. § 1342
(bX1), the specific effluent limitations established by EPA
regulations pursuant to § 301 of the Act, 33 U.S.C. § 1311.
Joint App. 371-394, 395-424; see 40 CFR § 133.102. There
is thus no question that the problem of effluent limita-
tions has been thoroughly addressed through the adminis-
trative scheme established by Congress, as contemplated
by Congress. This being so there is no basis for a federal
court to impose more stringent limitations than those im-
posed under the regulatory regime by reference to fed-
eral common law, as the District Court did in this case.
The Court of Appeals, we believe, also erred in stating:
“Neither the minimum effluent limitations prescribed
by EPA pursuant to the provisions of the Act nor
the effluent limitations imposed by the Wisconsin
agency under the National Discharge Elimination
System limit a federal court’s authority to require
compliance with more stringent limitations under the
federal common law.” 599 F. 2d, at 173.
U.S.C. § 1370. While Congress recognized a role for the States,
the comprehensive nature of its action suggests that it was the
exclusive source of federal law. Cases recognizing that the com-
prehensive character of a federal program is an insufficient basis
to find re-emption of state law are not in point, since we are
considering which branch of the Federal Government is the source
of federal law, not whether that law pre-empts state law, see
supra. Since federal courts create federal common law only as a
necessary expedient when problems requiring federal answers are
not addressed by federal statutory law, see 6-9, supra, the com-
prehensive character of a federal statute is quite relevant to the
present question, while it would not be were the question whether
state law, which of course does not depend upon the absence of
an applicable act of Congress, still applied.
G-14
Federal courts lack authority to impose more stringent
effluent limitations under federal common law than those
imposed by the agency charged by Congress — adminis-
tering this comprehensive scheme.
The overflows do not present a different case. They are
point source discharges and, under the Act, are prohibited
unless subject to’a duly issued permit. As with the
discharge of treated sewage, the overflows, through the
permit procedure of the Act, are referred to expert ad-
ministrative agencies for control. All three of the permits
issued to petitioners explicitly address the problem of
overflows. The Jones Island and South Shore permits, in
addition to covering discharges from the treatment plants,
also cover overflows from various lines leading to the
plants. As issued on December 24, 1974, these permits
require the city commission “‘to initiate a program lead-
ing to the elimination or control of all discharge overflow
and/or bypass points in the [Jones Island or South Shore,
respectively] Collector System . . . to assure attainment
of all applicable Water Quality Standards.” Joint App.
378-379, 416. The specific discharge points are identified.
The Commission was required to submit a detailed plan
to DNR designed to achieve these objectives, including
alternative engineering soiutions and cost estimates, file
a report on an attached form for all overflows that do
occur, and install monitoring devices on selected overflow
discharge points and file more detailed quarterly reports
on the overflows from those points. The Commission was
also required to complete “facilities planning” for the com-
bined sewer area. “The facilities planning elements include
a feasibility study, cost-effectiveness analysis and environ-
mental assessment for elimination or control of the dis-
charges from the combined sewers.” Quarterly progress
reports on this planning are required. Joint App. 379. A
permit issued to the city on December 18, 1974, covers
discharges “from sanitary sewer cross-overs, combined
sewer cross-overs and combined sewer overflows.” Joint ©
App. 425. Again the discharge points are specifically iden-
tified. As to separated sewers, the city “is required to
G-15
jnitiate a program leading to the elimination of the sani-
sewer cross-overs (gravity) and the electrically oper-
ated relief pumps. . . .” Jd., at 438. A detailed plan to
achieve this objective must be submitted, again with alter-
native engineering solutions and cost estimates, any over-
flows must be >reported to DNR on a specified form, and
monitoring devices are required to be installed on selected
points to provide more detailed quarterly reports. As to
the combined sewers, the city “is required to initiate a
program leading to the attainment of control of overflows
from the city’s combined sewer system. . . .” Ju., at 443.
The city is required to cooperate with and assist the city
commission in facilities planning for combined sewers, see
14, supra, submit quarterly progress reports to DNR, file
reports on all discharges, and install monitoring devices
on selected discharge points to provide more detailed
quarterly reports “until the discharges are eliminated or
controlled. Jd., at 444.15
15 The regulatory approach of the DNR to overflows reflected
in these permit conditions was not plucked out of thin air but
rather followed the approach in EPA regulations, issued pursuant
to the Act, governing the availability of federal funds for treat-
ment works construction, including construction of facilities to con-
trol sewer overflows. The regulations provide, as do the permits,
for detailed evaluation of feasibility, engineering alternatives, and
costs pricr to the commencement of a particular construction en
ject. 40 CFR §§ 35.908, 35.917. The “facilities planning”
ferred to in the permits for control of cota’ sewer Geartiows
is a term of art defined in exhaustive detail in the EPA regula-
tions, see id., §§ 35.9. 7-35.917-9. Such facilities 8 peers constitutes
the first step in qual..ying for federal financial assistance for con-
struction projects. It was the statutorily articulated intent of Con-
gress to make funds available, subject to certain conditions, for
projects to control overflows, see §§ 201 (gX1), 212 (2A), (B), 33
U.S.C. §§ 1281 (gX1), 1292 (2A), (B); see also S. Rep. No. 92-414,
at 40-41, 2 Leg. Hist. 1458-1459; 1 Leg. Hist. 165 Sen. Muskie):
2 Leg. Hist. 1379 (Sen. Magnuson). e are not impressed with
arguments that more in the way of immediate solutions should
have been required of the a Meron when such requirements
may have had the effect, under EPA regulations uiring ex-
haustive planning and examination of alternatives, of foreclosing
recourse to funds Congress intended to be available.
G-16
The enforcement action brought by the DNR in state
court resulted in a judgment requiring “{e]limination of
any by-passing or overflowing which occurs within the
sewerage systems under dry weather by not later than
July 1, 1982.” Joint App. 465. Wet weather overflows
from separated sewers were to be subject to a coordi-
nated effort by the commissions resulting ‘n correction
of the problem by July 1, 1986, pursuant to a plan sub-
mitted to the DNR. 7/d., at 469-471. As to the combined
sewer overflows, the commissions were required to ac-
complish an abatement project, with design work com-
pleted by July 1, 1981, and construction by July 1, 1993.
Annual progress reports were required to be submitted
to the DNR. id., at 471-472.
It is quite clear from the foregoing that the state agency
duly authorized by the EPA to issue discharge permits
under the Act has addressed the problem of overflows
from petitioners’ sewer system. The agency imposed the
conditions it considered best suited to further the goals
of the Act, and provided for detailed progress reports so
that it could continually monitor the situation. Enforce-
ment action considered appropriate by the state agency
was brought, as contemplated by the Act, again specifical-
ly addressed to the overflow problem. There is no “in-
terstice” here to be filled by federal common law: over-
flows are covered by the Act and have been addressed
by the regulatory regime established by the Act. Although
a federal court may disagree with the regulatory approach
taken by the agency with responsibility for issuing per-
mits under the Act, such disagreement alone is no bgsis
for the creation of federal common liaw.'®
Respondents strenuously argue that federal‘-common law
continues to be available, stressing that neither in the per-
16 In light of this conclusion we need not consider petitioners’
argument that, assuming the availability of a cause of action, the
lower courts erred in concluding that respondents’ evidence suf-
ficed to establish the existence of a nuisance.
G-17
mits nor the enforcement order are there any effluent
jimitations on overflows. This argument, we think, is
something of a red herring. The difference in treatment
between overflows and treated effluent by the agencies
is due to differences in the nature of the problems, not
the extent to which the problems have been addressed.17
The relevant question with overflow discharges is not, as
with discharges of treated sewage, what concentration of
various pollutants will be — Rather, the question
is what degree of control will be required in preventing
overflows and ensuring that the sewage undergoes treat-
ment. This question is answered by construction plans de-
signed to accommodate a certain amount of sewage that
would otherwise be discharged on overflow occasions. The
EPA had not promulgated regulations mandating spe-
cific control guidelines because of a recognition that the
problem is “site specific.” See, e.g., EPA Program Re-
quirements Memorandum PRM No. 75-34:
“The costs and benefits of control of various por-
tions of pollution due to combined sewer overflows
and by-passes vary greatly with the characteristics
of the sewer and treatment system, the duration, in-
tensity, frequency, and aerial extent of precipitation,
the type and extent of development in the service
area, and the characteristics, uses and water quality
standards of the receiving waters. Decisions on grants
for control of combined sewer overflows, therefore,
must be made on a case-by-case basis after detailed
planning at the local level.”
See also EPA, Report to Congress on Control of Com-
bined Sewer Overflow in the United States, 7-1, 7-13
17 See EPA, Benefit Analysis for Combined Sewer Overflow Con-
trol 4 (1979) (“regulations governing combined sewer overflows re-
quire permits for each outfall . . . they differ from the . . . per-
mits for treatment plants, which. specify effluent limitations based
on technology or water quality standards. NPDES permits for
combined sewer overflows contain no effluent limitations, though
they do usually require monitoring and data collection’’).
G-18
(1978). Decision is made on a case-by-case basis, through
the permit procedure, as was done here. Demanding spe-
cific regulations of general applicability before concluding -
that Congress has addressed the problem to the exclu-
sion of federal common-law-asks the wrong question. The
question is whether the field has been occupied, not
whether it has been occupied in a particular manner.'®
The invocation of federal common law by the District
Court and the Court of Appeals in the face of congres-
sional legislation supplanting it is peculiarly inappropriate
in areas as complex as water pollution control. As the
District Court noted:
“Tt is well known to all of us that the arcane sub-
ject matter of some of the expert testimony in this
case was sometimes over the heads of all of us to
one height or another. I would certainly be less than
candid if I did not acknowledge that my grasp of
some of the testimony was less complete than I
would like it to be. . . .” App. to Pet. for Cert. F-4.
Not only are the technical problems difficult—doubtless
the reason Congress vested authority to administer the
18 The point is perhaps made most clear if one asks what inade-
uacy in the treatment by Congress the courts below rectified
eee creation of federal common law. In imposing stricter ef-
fluent limitations the District Court was not “filling a gap” in the
regulatory scheme, it was simply providing a different regulatory
scheme. "The same is true with overflows. The District Court
simply ordered planning and construction designed to achieve more
stringent control of overflows than the planning and construction
undertaken pursuant to the permits. The same point is evident
in examining respondents’ arguments. The basic complaint is that
the permits issued to petitioners under the Act do not control
overfiows or treated discharges in a sufficiently stringent manner,
not that permits under the Act cannot deal with these subjects
or that the instant permits dc not do so. At most respondents
argue not that the Act is inadequate, as was the legislation con-
sidered in Illinois v. Milwaukee, but that these particular per-
mits issued under it are. This does not suffice to create an “‘in-
terstice” to be filled by federal common law.
G-19
Act in administrative agencies possessing the necessary
expertise—but the general area is particularly unsuited
to the approach inevitable under a regime of federal com-
mon law. Congress criticized past approaches to water
pollution control as being “sporadic” and ‘‘ad hoc,” S.
Rep. No. 92-414, at 95, 2 Leg. Hist. 1511, apt character-
izations of any judicial approach applying federal common
law, see Wilburn v. Fireman’s Insurance Co., 348 U.S.
310, 319 (1955).
It is also significant that Congress addressed in the 1972
amendments one of the major concerns underlying the
recognition of federal law in Illinois v. Milwaukee. We
were concerned in that case that Illinois did not have any
forum in which to protect its interests unless federal com-
mon law were created. See 406 U.S., at 104, 107. In the
1972 amendments Congress provided ample opportunity
for a State affected by decisions of a neighboring State’s
permit granting agency to seek redress. Under § 402
(bX3), 33 U.S.C. § 1342 (bX8), a state permit granting agen-
cy must ensure that any State whose waters may be af-
fected by the issuance of a permit receives notice of the
permit application and the opportunity to participate in
a public hearing. Wisconsin law accordingly guarantees
such notice and hearing, see Wis. Stat. §§ 147.11, 147.13.
Respondents received notice of each of the permits in-
volved here, and public hearings were held, but the did
not participate in them in any way. Section 402 (bX5), 33
U.S.C. § 1342 (bX5) provides that state permit granting
agencies must ensure that affected States have an oppor-
tunity to submit written recommendations concerning the
permit applications to the issuing State and the EPA, and
both the affected State and the EPA must receive notice
and a statement of reasons if any part of the recommen-
dations of the affected State are not accepted. Again
respondents did not avail themselves of this statutory op-
portunity. Under § 402 (dX2XA), 33 U.S.C. § 1342 (dX2XA),
the EPA may veto any permit issued by a State when
waters of another State may be affected. Respondents did
not request such action. Under § 402 (dX4) of the Act, 33
G-20
U.S.C. § 1342 (dX4), added in 1977, the EPA itself may
issue permits if a stalemate between an issuing and ob-
jecting State develops. The basic grievance of respondents
is that the permits issued to petitioners pursuant to the
Act do not impose stringent enough controls on peti-
tioners’ discharges. The statutory scheme established by
Congress provides a forum for the pursuit of such claims
before expert agencies by means of the permit granting
process. It would be quite inconsistent with this scheme
if federal courts were in effect to “write their own ticket”
under the guise of federal common law after permits have
already been issued and permittees have been planning
and operating in reliance on them.
Respondents argue that congressional intent to preserve
the federal common law remedy recognized in Illinois v.
Milwaukee is evident in §§ 510 and 505 (e) of the statute,
33 U.S.C. §§ 1370, 1865 (e).19 Section 510 provides that
nothing in the Act shall preclude States from adopting
and enforcing limitations on the discharge of pollutants
19 It must be noted that the legislative activity resulting in the
1972 amendments largely occurred prior to this Court’s decision
in Illinois ‘v. Milwaukee. Drafting, filing of committee reports, and
debate in both houses took place prior to the decision. Only con-
ference activity occurred after. It is therefore difficult to argue
that particular provisions were designed to preserve a federal com-
mon law remedy not yet recognized by this Court.
The dissent cites several cases for the proposition that the
federal common law nuisance or existed “long before” Illinois
v. Milwaukee. Post, at 29. During the legislative activity resulting
in the 1972 amendments, however, this Court’s decision in Ohio
v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), indicated that
state common law would control a claim such as Illinois’. Wyan-
dotte, like the present suit, was brought by a State to abate a
pollution nuisance created by put-of-state defendants. The Court
ruled that “‘an action such is, if otherwise cognizable in federal
district court, would have to be adjudicated under state law. Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938).” 401 U.S., at 498-499, n.
3. The Court in Illinois v. Milwaukee found it necessary to over-
rule this statement, see 406 U.S., at 102, n. 3.
G-21
more stringent than those adopted under the Act.?° It is
one thing, however, to say that States may adopt more
stringent limitations through state administrative proc-
esses, or even that States may establish such limitations
through state nuisance law, and apply them to in-state
dischargers. It is quite another to say that the States may
call upon federal courts to employ federal common law
to establish more stringent standards applicable to out-
of-state dischargers. Any standards established under
federal common law are federal standards, and so the
authority of States to impose more stringent standards
under § 510 would not seem relevant. Section 510 clearly
contemplates state authority to establish more stringent ©
pollution limitations; nothing in it, however, suggests that
this was to be done by federal court actions premised on
federal common law.
Subsection 505 (e) provides:
“Nothing in this section shall restrict any right
which any person (or class of persons) may have
under any statute or common law to seek enforce-
ment of any effluent standard or limitation or to seek
any other relief (including relief against the Adminis-
trator or a state agency)’’ (emphasis supplied).
20 In full, §510 provides:
“Except as expressly provided in this chapter, nothing in this
chapter shall (1) preclude or deny the right of, any State or political
subdivision thereof or interstate agency to adopt or enforce (a)
any standard or limitation respecting discharges of-pollutants or
(b) any requirement respecting control or abatement of pollution;
except that if any effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment standard, or standard of per-
formance is in effect under this chapter, such state or political sub-
division or interstate agency may not adopt or enforce any effluent
limitation, or other limitation, effluent standard, prohibition,
treatment standard, or standard of performance which is less
sono, than the effluent limitation, or other limitation, effluent
stan prohibition, pretreatment standard, 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.’
G-22
Respondents argue that this evinces an intent to preserve
- the federal common law of nuisance. We, however, are
inclined to view the quoted provision as meaning what
it says: that nothing in § 505, the citizen suit provision,
should be read as limiting any other remedies which might
exist.
Subsection 505 (e) is virtually identical to ainiittioes
in the citizen suit provisions of several environmental
statutes.?! The subsection is common language accompany-
ing citizen suit provisions and we think that it means only
that the provision of Such suit does not revoke other
remedies. It most assuredly cannot be read to mean that
the Act as a whole does not supplant formerly available
federal common law actions but only that the particular
section authorizing citizen suits does not do so. No one,
however, maintains that the citizen suit provision pre-
empts federal common law.
We are thus not persuaded that § 505 (e) aids respond-
ents in this case, even indulging the unlikely assumption
that the reference to “common law’’ in § 505 (e) includes
the limited federal common law as-opposed to the more
routine state common law. See Committee for the Con-
sideration of the Jones Falls Sewage System v. Train, 539
F. 2d, at 1009, n. 9.2
21 See, e.g., § 304 (e) of the Clean Air Act, 42 U.S.C. (Su II)
7604 (e); § 16 (e) of the Deep Water Port Act of 1974, 33 US.C.
§ 1515 (e); § 105 (gX5) of the Marine Protection, Research, and
Sanctuaries Act of 1972, 33 U.S.C. § 1415 (gX5); § 12 (e) of the
Noise Control Act of 1972, 42 U.S.C. § 4911 (e); § 7002 (f) of the
Solid Waste Disposal Act, 42 U.S.C. § 6972 (f); § 1449 (e) of the
Safe Drinking Water Act, 42 U.S.C. (Supp. II) 300j-8 (e); § 520
(e) of the Surface Mining Control and Reclamation Act of 1977,
30 U.S.C. (Supp. IT) 1270 (e); and § 20 (cX3) of the Toxic Substances
Control Act, 15 U.S.C. § 2619 (cX8).
22 The dissent’s criticism of our re of § 505 (e), post, at 35-36,
> misplaced. There is nothing beni about Congress enacting
cular provision, and taking care that this enactment by itself
ad disturb other remedies, without considering whether the rest
of the Act does so or what other remedies may be available. The
fact that the language of § 505 (e) is repeated in haec verba in
the citizen suit provisions of a vast array of environmental legis-
G-23
The dissent considers “particularly revealing,” post, at
37, a colloquy involving Senators Griffin, Muskie and Hart,
concerning the pendency of an action by the EPA against
Reserve Mining Company. Senator Griffin expressed con-
cern that “one provision in the conference agreement
might adversely affect a number of pending law suits
brought under the Refuse Act of 1899,” including the
Reserve Mining litigation. 1 Leg. Hist. 190. The provi-
sion which concerned Senator Griffin, enacted as § 402 (k),
33 U.S.C. § 1342 (k), provides, in pertinent part:
“Until December 31, 1974, in any case where a per-
mit for discharge has been applied for pursuant to
this section, but final administrative disposition of
such application has not been made, such discharge
shall not be a violation of (1) § 301, 306, or 402 of
this Act, or (2) $13 of the Act of March 3, 1899,
unless the Administrator or other plaintiff proves that
final administrative disposition of such application has
not been made because of the failure of the appli-
cant to furnish information reasonably required or re-
quested in order to process the application.”
Senator Griffin was concerned about the relation between
this provision and § 4 (a) of the bill, which provided that
“No suit, action or other proceeding lawfully commenced
by or against the Administrator or any other officer or
employee of the United States in his official capacity or
in relation to the discharge of his official duties under the
Federal Water Pollution Control Act as in effect im-
mediately prior to the date of enactment of the Act shall
abate by reason of the taking effect of the amendment
lation, see n. 21 supra, indicates that it does not reflect any con-
sidered judgment about what other remedies were previously avail-
able or continue to be under any particular statute. The dissent
refers to our reading as “extremely strained,” but the dissent,
in relying on § 505 (e) as evidence of Congress’ intent to preserve
the federal common-law nuisance remedy, must read “‘nothing in
this section” to mean “nothing in this Act.’’ We prefer to read
the statute as written. Congress knows how to say “nothing in
this Act” when it means to, see, e.g., Pub. L. 96-510, § 114 (a),
94 Stat. 2795 (1980).
G-24
made by §2 of this Act.”’ Senator Griffin stated that
“when these provisions are read together, it is not al-
together clear what effect is intended with respect to
— federal court suits against pollutors violating the
efuse Act of 1899.”
Senator Muskie responded to Senator Griffin’s concerns
by quoting §4 (a) and stating that “Without any ques-
tion it was the intent of the conferees that this provision
include enforcement actions brought under the Refuse
Act, the Federal Water Pollution Control Act, and any
other acts of Congress.” 1 Leg. Hist. 193. Later Senator
Hart stated “It is my understanding, . . . after the ex-
planation of the Senator from Maine, that the suit now
pending against the Reserve Mining Co., under the Refuse
Act of 1899 will in no way be affected nor will any of
the other counts under the existing Federal Water Pollu-
tion Control Act or other law.”’ 1 Leg. Hist. 211.28 When
Senator Muskie’s and Hart’s remarks are viewed in this
context it is clear that they do not bear on the issue now
before the Court. In the first place, although there was
a federal common-law claim in the Reserve Mining litiga-
tion, Senator Griffin focused on the Refuse Act of 1899—
not federal common law.\Senator Muskie, with his refer-
ence to ‘“‘other acts of Cohgress,”’ rather clearly was not
discussing federal common . Most importantly,
however, Senator Muskie based his response to Senator
Griffin—that the Reserve Mining suit would not be af-
fected—on a specific section of the bill, § 4 (a), which is
not applicable to suits other than those brought by or
against the federal government and pending when the
amendments were enacted. Senator Hart based his re-
23 The dissent states that “Senator Muskie and Hart each re-
sponded” as Senator Hart is quoted in the text. Post, at 37. This
is not strictly accurate. Senator Muskie never responded as
Senator Hart did, but rather as quoted in the text above, with
the clear reference to § 4 (a). He did not, like Senator Hart, use
the phrase “other law” but rather, and of particular significance
in the present context, the phrase “any other acts of Congress.”
This inaccuracy in the dissent appears to be of no little impor-
tance, since the dissent attaches great weight to the views of
Senator Muskie, see post, at 37, n. 16.
G-25
~ poco on the explanation given by Senator Muskie. Even
if we assumed that the legislators were focusing on the
federal common law aspects of the Reserve Mining litiga-
tion (and we do not think they were), Senators Muskie
and Hart informed Senator Griffin that the Reserve Min-
ing suit was not affected because of § 4 (@), and not at
all because the Act did not displace federal common law
of nuisance. Senator Griffin’s question focused on § 4 (a);
understandably, so did the assurances he received.
‘Nothing about the colloquy suggests any intent concern-
ing the continued validity of federal common law. The
issue simply did not come up because Senator Griffin’s
concerns were fully answered by a particular section not
applicable in the case before us.?4
We therefore conclude that no federal common la
remedy was available to respondents in this case. The
judgment of the Court of Appeals is therefore vacated,
and the case remanded for proceedings consistent with
this opinion.
It is so ordered.
4 In the similar colloquy in the House, also relied upon by the
dissent, Rep. Wright responded to a question from Rep. Dingell
in precisely the same manner as Senator Muskie responded to
Senator Griffin, relying on §4 (a), and referring to “other acts
of Congress.”’ 1 Leg. Hist. 248. Rep. Dingell never mentioned
federal common law in his question.
The dissent also relies on the failure of Congress to enact, in
1977, an amendment “proposed”’ by Rep. Aspin. Post, at 39-40.
This reliance not only ignores the fact that “unsuccessful attempts
at legislation are not the best guides to legislative intent,” Red
Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381-382, n. 11 (1969),
but also, even assuming the failure to enact the Aspin “proposal”
is some indication of Conawens? intent in 1977, the ‘“‘oft-repeated
warning” that “the views of a ony poy Congress form a hazard-
ous basis for inferring the intent of an earlier one.” Consumer
Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102,
117-118 (1980). These admonitions do not even come into play,
however, since the Aspin proposal was never introduced in either
house of Co ss; it does not even a in the Congressional
Record. The fate of the Aspin “pro ” has under our precedents
dealing with statutory interpretation nothing whatever to do with
Congress’ intent concerning federal common law when it enacted
the 1972 amendments.
&
G-26
L
SUPREME COURT OF THE UNITED STATES
No. 79-408
.
City oF MILWAUKEE, ET AL.,
Petitioners,
v.
STATES OF ILLINOIS AND MICHIGAN.
On Writ of Certiorari to the United States
Court of Appeals for the Seventh Circuit.
[April 28, 1981]
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and
JUSTICE STEVENS join, dissenting.
Nine years ago, in Illinois v. Milwaukee, 406 U.S. 91
(1972), this Court unanimously determined that Illinois
could bring a-federal common-law action against the city
of Milwaukee, three other Wisconsin cities, and two
sewerage commissions. At that time, Illinois alleged that
the discharge of raw and untreated sewage by these Wis-
consin entities inte Lake Michigan created a public nui-
sance for the citizens of Illinois. The Court remitted the
parties to an appropriate federal district court, “whose
powers are adequate to resolve the issues.” /d., at 108.
Illinois promptly initiated the present litigation,? and pur-
sued it through more than three years of pretrial dis-
1 This Court’s decision was issued April 24y 1972. The complaint _
was filed in the United States District Court for the Northern
District of Illinois on May 19, 1972.
e
G-27
covery, a six-month trial that entailed hundreds of exhibits
and scores of witnesses, extensive factual findings by the
District Court, App. F to Pet. for Cert., and an exhaus-
tive review of the evidence by the Court of Appeals. 599
F. 2d 151, 167-177 (CA7 1979). Today, the Court decides
that this nine-year judicial exercise has been just a mean-
ingless charade, cf. Hughes Tool Co. v. Trans World Air-
lines, 409 U.S. 363, 389, 390 (1973) (dissenting opinion),
inasmuch as, it says, the federal common law remedy ap-
proved in Illinois v. Milwaukee was implicitly extin-
guished by Congress just six months after the 1972 deci-
sion. Because I believe that Congress intended no such
extinction, and surely did not contemplate the result
reached bv the Court today, I respectfully dissent.
I
The Court’s analysis of federal common law displace-
ment rests, I am convinced, on a faulty assumption. In
contrasting congressional displacement of the common law
with federal pre-emption of state law,? the Court assumes
2 I have no quarrel with the Court’s distinction between the
issues of federalism at stake in assessing congressional “pepe
of state law and the separation of powers concerns that are im-
plicated here. But there is more to this distinction than the Court
suggests. In deciding whether federal law pre-empts state law, the
Court must be sensitive to the potential frustration of national pur-
poses if the States are premitted to control conduct that is the
subject of federal regulation. San Diego Building Trades Council
v. Gvaan 359 U.S. 236, 244 (1959). Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U.S. 182, 142 (1963). For this reason,
in pre-emption analysis the role of federal law is often determined
on an “all or nothing”’ basis. On the ot!.er hand, where federal
interests alone are at stake, participation by the federal courts
is often desirable, and indeed necessary, if federal policies
devel by Congress are to be fully effectuated. See, e¢.g., Miree
v. DeKalb County, 43 U.S. 25, 35.(1977) (opinion concurring in the
judgment); United States v. Little Lake Misere Land Co., 412 U.S.
580, 592-593 (1973). The whole. concept of interstitial federal law-
making suggests a cooperative interaction between courts and Con-
ae = is less attainable where federal-state questions are
involved.
—
G-28
that as soon as Congress “addresses a question previously
governed” by federal common law, ‘‘the need for such an
unusual exercise of lawmaking by federal courts disap-
pears.” Ante, at 8. This ‘‘automatic dispJacement” ap-
proach is inadequate in two respects. It fails to reflect
the unique role federal common law plays in resolving
disputes between one State and the citizens or govern-
ment of another. In addition, it ignores this Court’s fre-
quent recognition that federal common law may contem-
plate congressional action in the fulfillment of federal
policies. ,
It is well-settled that a body of federal common law has
survived the decision in Ere R. Co. v. Tompkins, 304
U.S. 64 (1938). Erie made clear that federal courts, as
courts of limited jurisdiction, lack general power to for-
mulate and impose their own rules of decision. Jd., at 78.
The Court, however, did not there upset, nor has it since
disturbed, a deeply rooted, more specialized federal com-
mon law that has arisen to effectuate federal interests
embodied either in the Constitution or an Act of Con-
gress.* Chief among the federal interests served by this
common law are the resolution of interstate disputes and
= implementation of national statutory or regulatory
policies. |
Both before and after Frie, the Court has fashioned.
federal law where the interstate nature of a controversy
renders inappropriate the law of either State. See, e.g.,
Nebraska v. Wyoming, 325 U.S. 589 (1945); Hinderlider
v. La Plata Co., 304 U.S. 92, 110 (1938); Kansas v. Coll-
orado, 206 U.S. 46, 95, 97-98 (1907) (apportioning waters
of interstate stream). See also Cissna v. Tennessee, 246
3 See generally Hill, The Law-Making Power of the Federal
Courts; Constitutional Preemption, 67 Colum. L. Rev. 1024,
1026-1042 (1967); Friendly, In Praise of Erie—and of the New Fed-
eral Common Law, 39 N.Y.U. L. Rev. 383, 405-422 (1964). See
also Leypold, Federal Common Law; Judicially Established Ef.-
fluent Standards as a Remedy in Federal Nuisance Actions, 7
Boston College Env. Aff. L. Rev. 293 (1978).
Oe
G-29
US. 289, 296 (1918); Howard v. Ingersoll, 13 How. 381
(1851) (resolving interstate boundary conflict). When such
disputes arise, it is clear under our federal system that
laws of one State cannot impose upon the sovereign
- rights and interests of another. The Consti , by Art.
III, § 2, explicitly extends the judicial power of the United
States to controversies between a State and another State
or its citizens, and this Court, in equitably resolving such
disputes, has developed a body of “what may hot improp-
erly be called interstate common law.’’ Kansas v. Colo-
rado, 206 U.S., at 98.
Long before the 1972 decision in Jllinois v. Milwaukee,
federal common law enunciated by the Court assured each
State the right to be free from unreasonable interference
with its natural environment and resources when the in-
terference stems from another State or its citizens.
Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-239
(1907); Missouri v. Illinois, 200 U.S. 496, 520, 526 (1906).
See New Jersey v. City of New York, 283 U.S. 473 (1931);
New York v. New Jersey, 256 U.S. 296 (1921). The right
to such federal protection is a consequence of each State’s
entry into the Union and its commitment to the Constitu-
po In the words of Justice Holmes, speaking for the
ourt:
“When the States by their union made the forcible
abatement of outside nuisances impossible to each,
they did not thereby agree to submit to whatever
might be done. They did not renounce the possibil-
ity of making reasonable demands on the ground of
their still remaining quasi-sovereign interests; and the
alternative to force is a suit in this court.” Georgia
v. Tennessee Copper Co., 206 U.S., at 237.
This Court also has applied federal common law where
federally created substantive rights and obligations are
at stake. Thus, the Court has been called upon to pro-
nounce common law that will fill the interstices of a per-
vasively federal framework, or avoid subjecting relevant
federal interests to the inconsistencies in the laws of
G-30
several States. Textile Workers v. Lincoln Mills, 353 U.S.
448, 456-457 (1957); United States v. Standard Oil Co.,
332 U.S. 301, 305 (1947); Clearfield Trust Co. v. United
States, 318 U.S. 363, 366-367 (1943); D’Oench, Duhme &
Co. v. Federal Deposit Ins. Corp., 315 U.S. 447 (1942).
If the federal interest is sufficiently strong, federal com-
mon law may be drawn upon in settling disputes even
though the statute or Constitution alone provides no
precise answer to the question posed. See, e.g., Textile
Workers v. Lincoln Mills, 353 U.S., at 458; Clearfield
Trust Co. v. United States, 318 U.S., at 368-370. See gen-
erally United States v. Little Lake Misere Land Co., 412
U.S. 580, 593 (1978) (“the inevitable incompleteness pre-
sented by all legislation means that interstitial federal law-
making is a basic responsibility of the federal courts.”’).
Each of these sources of federal common law was recog-
nized in Illinois v. Milwaukee. The Court there concluded
that the common law of interstate nuisance supplied the
requisite federa! question jurisdiction to bring an action
in District Court. In so deciding, the Court reasoned that
it was appropriate for federal courts to fashion federal
common law ‘“‘when there is an overriding federal interest
in the need for a uniform rule of decision or where the
controversy touches basic interests of federalism.” 406
U.S., at 105, n. 6. The Court relied heavily upon inter-
state air pollution and water allocation cases where the
complaining party was a State invoking the Court’s orig-
inal jurisdiction. Jd., at 104-106. In addition, it recounted
the history of federal interstate water quality legislation
and suggested that the abiding federal interests in the
purity of interstate waters justified application of federal
common law. /d., at 101-103. Significantly, the Court found
no barrier to federal common law despite the number of
federal statutes and regulations that already provided
remedies to abate pollution in interstate waters. 406 U.S.,
at 103.
Thus, quite contrary to the statements and intimations
of the Court today, ante, at 16, 19, 20, n. 19, Illinois
v. Milwaukee did not create the federal common law of
G-31
nuisance. Well before this Court and Congress acted in
1972, there was ample recognition of and foundation for
a federal common law of nuisance applicable to Illinois’
situation.4 Congress cannot be presumed to have been un-
aware of the relevant common-law history, any more than
it ean be deemed to have been oblivious to the decision
in Illinois v. Milwaukee, announced six months prior to
the passage of the Federal Water Pollution Control Act
Amendments of 1972 (Act or Amendments), 86 Stat. 816.
The central question is whether, given its presumed
awareness, Congress, in passing these Amendments, in-
tended to prevent recourse to the federal common law
of nuisance.
The answer to this question, it seems to me, requires
a more thorough exploration of congressional intent than
is offered by the Court. Congress had “spoken to” the
particular problem of interstate water pollution as far back
as 1888,5 and in 1948 did so in a broad and systematic
fashion with the enactment of the Water Pollution Con-
trol Act.® In Illinois v. Milwaukee, the Court properly
* This Court had not previously indicated that the federal com-
mon law of nuisance provided a basis for federal question juris-
diction under 28 U. 5.C. § 1331. But see Texas v. Pankey, 441 F.
2d 236 (CA10 1971). As recently as 1971, however, the Court had
confirmed the existence of its original jurisdiction to consider a
nuisance action brought by one State to vindicate its own
sovereign interests or the interests of its citizens as a whole. See Ohio
v. Wyandotte Chemicals Corp., 401 U.S. 493, 496 (1971) (citing cases
discussed at p. 28, supra). e significance ‘of Wyandotte, was the
Court’s refusal for prudential reasons to exercise the original
jurisdiction that concededly obtained. Jd., 499-505. The additional
observation, that “So far as it appears from the present record,
an action such as this, if otherwise cognizable in federal district
court, would have to be adjudicated under state law,” 401 U.S.,
at 498-499, n. 3 (emphasis added), was explained by the court one
year later as “based on the preoccupation of that litigation with
public nuisance under Ohio law.”’ Illinois v. Milwaukee, 406 U.S.,
at 102, n. 3.
5 See Act of June 29, 1888, 25 Stat. 209. See also Rivers and
Harbors Act of 1899, 30 Stat. 1121.
6 Pub. L. 80-845, 62 Stat. 1155 (1948).
G-32
regarded such expressions of congressional interest as not
an obstacle but an incentive to application of the federal
common law. 406 U.S., at 102-103. The fact that Congress
in 1972 once again addressed the complicated and difficult
problem of purifying our Nation’s waters should not be
taken as presumptive evidence, let alone conclusive proof,
that Congress meant to foreclose pre-existing approaches
to controlling interstate water pollution.? Where the possi-
ble extinction of federal common law is at issue, a review-
ing court is obligated to look not only to the magnitude
of the legislative action but also with some care to the
evidence of specific congressional intent.®
7 The Court at this point, ante, at 8-9, would rely on Arizona
v. California, 373 U.S. 546 (1963), and Mobil Oil Corp. v. Higgin-
botham, 436 U.S. 618 (1978). But those cases do not stand for the
broad proposition announced today. In Arizona v. California, Con-
gress had developed a formula for apportioning the limited waters
of the Colorado River and directed the federal agency to imple-
ment the formula. In the face of this express congressional alloca-
tion, the Court declined to substitute its own notions of an ade-
quate apportionment. 373 U.S., at 565. In Mobil Oil Corp. v.
Higginbotham, the Court confronted a statute that had created
a precise federal remedy where before there had been none. Since
federal law, when the statute was passed, did not address wrongful
death on the high seas, and the statute itself expressed no intent
to preserve or create federal remedies, the Court acceded to the
particularized judgment of Congress. 436 U.S., at 625. Unlike the
statutes at issue in those two cases, the 1972 Act addressed a
broad and complex subject to which state and federal law had
tog spoken, and in doing so recognized and enco d
many different approaches to controlling water pollution.
discussion in Part II, infra.
8 Inevitably, a federal court must acknowledge the tension be-
tween its obligation to apply the federal common law in implement-
ing an important federal interest, and its need to exercise judicial
olt-retrainh and defer to the will of Congress. Congress, of course,
may resolve this tension by making it known that flexible and
creative judicial response on a case-by-case basis must yield to an
interest in certainty under a comprehensive legislative scheme. At
the same time, the fact that Congress can properly check the
courts’ exercise of federal common law does not mean that it has
done so in a specific case. This Court is no more free to disregard
G-33
II
In my view, the language and structure of the Clean
Water Act leave no doubt that Congress intended to pre-
serve the federal common law of nuisance. Section 505
(e) of the Act reads:
“Nothing in this section shall restrict any right
which any person (or class of persons) may have
under any statute or common law to seek enforce-
ment of any effluent standard or limitation or to seek
any other relief (including relief against the Adminis-
trator or a State agency).”’ 33 U.S.C. § 1365 (e) (em-
phasis added).
The Act specifically defines ‘“‘person’’ to include States,
and thus embraces respondents Illinois and Michigan.
§ 502 (5); 33 U.S.C. § 1362 (5). It preserves their right to
bring an action against the governmental entities who are
charged with enforcing the statute. Most important, as
succinctly stated by the Court of Appeals in this case:
“There is nothing in the phrase ‘any statute or common
law’ that suggests that this provision is limited to s
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.