Amicus Curiae Brief — International Paper Co. v. Ouellette

EEE

Supreme Court, U.S,

FILED

No. 85-1233 JUN 26 1960

— JOSEPH F-SPANIOL, JR,

In THE CLERK

Supreme Court of the United States

OcTOBER TERM, 1985

INTERNATIONAL PAPER COMPANY,

Petitioner,

vs.

HARMEL QUELLETTE and LILA QUELLETTE, CLIFTON BROWNE and

EpLA BROWNE, ALDEE PLOUFFE and SHIRLEY PLOUFFE,

individually, on behalf of themselves, and on behalf of all

similarly situated plaintiffs, H. VAUGHN GriFFIN, Sr., ARDATH

GriFFIN, ALAN THORNDIKE and ELLEN THORNDIKE, WESLEY C.

LARRABEE and VIRGINIA LARRABEE, F. ALFRED PATTERSON, Jr.,

and Lois T. PATTERSON,

Respondents.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For the Second Circuit ’

BRIEF OF THE STATE OF TENNESSEE AND

TWELVE ADDITIONAL STATES AS

AMICI CURIAE SUPPORTING RESPONDENTS

W. J. MICHAEL Copy*

Attorney General & Reporter

of the State of Tennessee

JOHN KNox WALKUP

Chief Deputy Attorney General

FRANK J. SCANLON

Deputy Attorney General

MICHAEL D. PEARIGEN

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219-5025

(615) 741-5687

*Counsel Of Record For Amici

Curiae

(Additional States as Amici Curiae on inside cover)

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477 at

ADDITIONAL STATES AS AMICI CURIAE

STATE OF CALIFORNIA

John K. Van De Kamp

Attorney General

STATE OF CONNECTICUT

Joseph I. Lieberman

Attorney General

STATE OF IDAHO

Jim Jones

Attorney General

STATE OF ILLINOIS

Neil F. Hartigan

Attorney General

STATE OF IOWA

Thomas J. Miller

Attorney General

STATE OF MISSOURI

William L. Webster

Attorney General

STATE OF NEBRASKA

STATE OF RHODE ISLAND

Arlene Violet

Attorney General

STATE OF SOUTH CAROLINA

T. Travis Medlock

Attorney General

STATE OF SOUTH DAKOTA

Mark V. Meierhenry

TABLE OF CONTENTS

The Interest Of The Amici Curiae ...................

EE TT PETC TT TTT Tee

Argument:

I.

II.

The Federal Clean Water Act Has Not

Preempted The Application Of State Law

Relative To Injury Caused By Out-Of-State

Water Pollution Discharges ...............

The City of Milwaukee Decision Of The

Seventh Circuit Court Of Appeals Applied

The Wrong Analysis And Therefore Reached

An Erroneous Conclusion That The CWA

Preempts State Regulation Of Interstate

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TABLE OF AUTHORITIES

Page

CASES:

Askew v. American Waterways Operators, Inc., 411

hg Behe a a oa Na 12

Bass River Associates v. Mayor, Township Commis-

sioner, 743 F.2d 159 (3rd Cir. 1984) ............. 15

Chesapeake Bay Foundation, Inc. v. U.S., 445 F.Supp.

PG WE ae Vine s. daelc- civ ecewdaves 18

Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th

Cir. 1984), cert. denied sub nom. Chevron,

U.S.A., Inc. v. Sheffield, 472 U.S. __, 105 S.Ct.

SEE We'd os bavatoa5 040 kak Kebkelcead 7, 8, 12, 16

Chicago & N.W.R.R. Co. v. Fuller, 84 U.S. 560 (1873) . a

Chicago Park Dist. v. Sanitary Dist. of Hammond, 530

F.Supp. 21 OCD. T. AGBR) ow. ccccccccccccccs 13

City of Milwaukee v. Illinois & Michigan, 451 U.S. 304

GO sada bu bsacacescncaktn 4, 8, 10, 11, 12, 13, 14, 17

Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980) 17

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

Ds CEN Rd Gineb big bckA i hadees chek Oivenka hols 17

Hillsboro County, Fla. v. Automrated Med. Labora-

tories, Inc., 471 U.S. ___., 105 S.Ct. 2371 (1985) 5, 12, 16

Illinois v. City of Milwaukee, 406 U.S. 91 (1972)... 4, 9, 10, 11,

13, 14

Illinois v. City of Milwaukee, 731 F.2d 403 (7th Cir.

1984), cert. denied sub nom. Scott v. City of Ham-

mond, 469 U.S. __., 105 S.Ct. 979 (1985) .....: eS

ill

ek acc inh bmanshuscdhbessttebsasednces 11, 17

Illinois v. City of Milwaukee, 366 F.Supp. 298 (N.D.

OE TEE hdc cok coon Sdded ods Cs Secaiveeesees li

Illinois v. Lever Bros., 530 F.Supp. 293 (N.D. Ill. 1981). 13

Jones v. Rath Packing Co., 430 U.S. 519 (1977) ....... 15

Kitlutsisti v. Arco Alaska, Inc., 592 F.Supp. 832 (D.

ED ns cane boda coher Gueeseasnndecee: 17

Malone v. White Motor Corp., 435 U.S. 497 (1978) .... 6

Mianus River Preservation Comm. v. EPA, 541 F.2d

SOP Cink Cis. 19TED 2 nce idvcctecccccecesceess 18

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

NED Soccddscapnnedcanrsadacenecnnesmecevess 5

Matter of Oswego Barge Corp., 664 F.2d 327 (2nd Cir.

sida bae tandcdcaeceddoccndassacnieess 6

Ouellette v. International Paper Company, 776 F.2d 55

Cn Gir. TEE c ood ccccccccceesccccucvveveedes 2

Ouellette v. International Paper Company, 602 F.Supp.

BEGG. Ve. BID cic ce ccceessccocccsvcnss 2, 4, 7, 8, 14

Penn Terra Ltd. v. Department of Environmental

Resources, 733 F.2d 267 (3rd Cir. 1984).......... 6

Matter of Quanta Resources Corp., 739 F.2d 912 (3rd

Cir. 1984), aff'd sub nom. Midlantic National

Bank v. New Jersey Dept. of Environmental Pro-

tection, 474 U.S. __., 106 S.Ct. 755 (1985) ...... 6

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ........ 15

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ... 5

Save the Bay, Inc. v. EPA, 556 F.2d 1282 (Sth Cir. 1977) 18

Scott v. City of Hammond, 519 F.Supp. 292 (N.D. Ill.

BE c6-daneudw eee enema means okeskatdee vcs 13

State v. Champion International Corp., No. 83-1149-I

(Tenn.Ch.Ct., filed July 8, 1983) ............... 3

State v. Champion International Corp., __. S. W.2d

___, reported at 24 Env’t.Rep.Cas. (BNA) 1371

CH FE a dith dn e ABRs 6 cob cUidbs blte bees 2, 16

State v. Champion International Corp., __. S. W..2d

, reported at 22 Env’t.Rep.Cas. (BNA) 1338

COM PR TIED Si siclninsin c Wit csc Wadd 3, 4, 6, 8, 15, 16

Stoddard v. Western Carolina Regional Sewer Auth.,

784 F.2d 1200 (4th Cir. 1986) ................. 7, 12, 15

Sturges v. Crowninshield, 4 Wheat (17 U.S.) 122 (1819). 10

United States v. Darby, 312 U.S. 100(1941)........... 5

CONSTITUTIONAL PROVISIONS: ,

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STATUTES:

Federal:

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Se I. 0.5 3, oo wach win 0 1'6 preeaieeeaeate 12

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SOD SR ak ecu vocescBesceeees 8, 14, 15, 16, 17

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33 U.S.C. § 1370(2) ......... Ast ORR es 8, 15

a ts ks ccdn pat gwes ce uusewanae se 12

is cen Cine bss onshadeents 7

State:

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MISCELLANEOUS:

Rule 36.4, Rules of the Supreme Court ............... l

Glicksman, Federal Preemption and Private Legal

Remedies for Pollution, 134 U.Pa.L.Rev. 121

DCRCé sich bavestueaies soesdeds enere 5,7, 8, 16, 17

No. 85-1233

IN THE

Supreme Court of the Wnited States

OcTOBER TERM, 1985

INTERNATIONAL PAPER COMPANY,

Petitioner,

vs.

HARMEL ONELLETTE and LILA OUELLETTE, CLIFTON BROWNE and

EpLA Browne, ALDEE PLOUFFE and SHIRLEY PLOUFFE,

individually, on behalf of themselves, and on behalf of all

similarly situated plaintiffs, H. VAUGHN GriFFIN, Sr., ARC * TH

GRIFFIN, ALAN THORNDIKE and ELLEN THORNDIKE, WESLEY C.

LARRABEE and VIRGINIA LARRABEE, F. ALFRED PATTERSON, JR.,

and Lois T. PATTERSON,

Respondents.

On Petition For A Writ Of Certiorari To The United States

Court Of Appeals For the Second Circuit

BRIEF OF THE STATE OF TENNESSEE AND

TWELVE ADDITIONAL STATES AS

AMICI .CURIAE SUPPORTING RESPONDENTS

THE INTEREST OF THE AMICI CURIAE

The amici curiae are the sovereign States of Tennessee,

California, Connecticut, Idaho, Illinois, Iowa, Missouri,

Nebraska, Oklahoma, Rhode Island, South Carolina, South

Dakoka, and Virginia, which file this Brief by and through their

respective Attorneys General pursuant to Rule 36.4 of the Rules

of the Supreme Court. Each of the amici states, in the exercise

of their reserved police power, have enacted legislation respect-

a

ing the protection of the environment for the furtherance of the

public health, safety, and welfare.'

The Court of Appeals below, in Ouellette v. International

Paper Company, 776 F.2d 55 (2d Cir. 1985), aff’g Ouellette v.

Internaticnal Paper Compcny, 602 F.Supp. 264 (D. Vt. 1985)

(‘‘Ouelletr<’’\, correctly ruled that the Federai Clean Water Act,

33 U.S.C. § 1251 et seg. (‘“*CWA’’), authorizes resort to the

common law of the state where injury from interstate water

pollution occurs. The Seventh Circuit Court of Appeals,

however, by holding in J/linois v. City of Milwaukee, 731 F.2d

403 (7th Cir. 1984) (‘City of Milwaukee’’), cert. denied sub

nom. Scott v. City of Hammond, 469 U.S. ___, 105 S.Ct. 979

(1985), that che CWA preempts the application of the law of the

state where the injury occurred to out-of-state sources of pollu-

tion,’ has raided the treasury of power reserved to the states.’

' Particularly pertinent are those laws by whiclr the amici states seek

to protect, preserve, and enhance the quality of their waters. See,

e.g., the Tennessec Water Quality Control Act of 1977, T.C.A. §

69-3-101 ef seg. As stated in T.C.A. § 63-3-102(a):

[I]t is declared to be the public policy of Tennessee that the peo-

ple of Tennessee. . .have a right to unpolluted waters. In the ex-

ercise of its pubiic trust over the waters of the state, the govern-

ment of Tennessee has an obligation to take all prudent steps to

secure, protect, and preserve this right.

Further, pursuant to T.C.A. § 69-3-114(a), causing pollution is

declared to be a public nuisance, subjecting the violator to actions for

civil penalties, T.C.A. § 69-3-115(a), injunctive relief, T.C.A. §

69-3-117, and, in appropriate cases, criminal sanctions and fines.

T.C.A. § 69-3-115(b) and (c).

* The Tennessee Supreme Court recently adopted the view of the

Seventh Circuit in State v. Champion International Corp

S.W.2d ___., reported at 24 Env’t.Rep.Cas. (BNA) 1371 (Tenn. 1986)

(‘“‘Champion’’). The State of Tennessee will shortly file a Petitior for

Certivrari with this Court seeking review of the Tennessee Supreme

Court’s decision and requesting consolidation with these proceedings.

> U.S. Const. amend. X.

~~

The amici states have experienced, are experiencing, or are

subject to interstate water pollution problems. The resolution

of this issue, upon which two Federal Circuit Courts of Appeals

are divided, will materially affect the ability of the amici states

to exercise their inherent police power to protect the water

resources and health, safety, and welfare of the people of their

states.

For example, Tennessee, which is bordered by eight other

states and traversed by numerous interstate rivers and streams,

found it necessary to bring suit under Tennessee law in the Ten-

nessee state courts against an out-of-state polluter of its waters.‘

That suit involved the gross and continuing pollution of the

Pigeon River, an interstate stream flowing from North Carolina

into Tennessee, by the defendant owner and operator of a

papermill located in North Carolina a short distance across the

state border. The Pigeon River is a premier trout and bass

stream in North Carolina above the defendant’s papermill.

However, the defendant’s effluent has turned the Tennessee

portion of the Pigeon River into a murky, odorous stream

which supports only minimal aquatic life.

The Tennessee Court of Appeals declined to follow the

Seventh Circuit Court of Appeals’ City of Milwaukee decision

and held that the CWA does not preempt the application of

Tennessee’s water pollution and nuisance laws to an out-of-

state polluter.’ A divided Tennessee Supreme Court, however,

recently reversed the Tennessee Court of Appeals’ decision and

dismissed the Champion suit, holding that the CWA had

preempted the application of Tennessee’s water pollution and

nuisance law to an out-of-state polluter.*

* State v. Champion International Corp., No. 83-1149-I (Tenn. Ch.

Ct., filed July 8, 1983).

$ See State v. Champion International Corp., ___. S.W.2d __,

reported at 22 Env’t Rep. Cas. (BNA) 1338 (Tenn. App. 1985)

(‘‘Champion’’).

* See note 2, supra.

sii Mis

SUMMARY OF ARGUMENT

The amici argue that the Ouellette Court reached the correct

result in holding that the CWA allows the application of the law

of the state where injury from out-of-state pollution occurred,

but submit a different rationale from that adopted by the

Second Circuit.’ The amici contend that: (1) Prior to J/linois v.

City of Milwaukee, 406 U.S. 91 (1972) (‘Milwaukee I’), and

the federal common law which was thereby created, there was

no bar to the application of state law to control interstate water

pollution and this Court in Milwaukee I did not irreversibly

erase this inherent state power but merely superseded it; (2) This

Court, in City of Milwaukee v. Illinois & Michigan, 451 U.S.

304 (1981) (‘‘Milwaukee IT’), found that the CWA preempted

federal common law but did not decide that state law was

similarly preempted; (3) Upon the demise of federal common

law pursuant to Milwaukee II, the disability previously imposed

by the federal common law upon the states’ inherent police

power dissipated, unless the CWA itself pfeempts state law;

(4) There is no indication in the CWA that Congress intended to

preempt state law; indeed, the CWA expressly preserves such

state law.

’ The rationale argued by the amici is essentially that adopted by the

Tennessee Court of Appeals in Champion, supra.

<<

ARGUMENT

I. The Federal Clean Water Act Has Not Preempted

The Application Of State Law Relative To Injury

Caused By Out-Of-State Water Pollution Discharges.

In determining whether the CWA preempts state law relative

to interstate water pollution, three fundamental principles must

be kept in mind. In the first instance, there is no doubt that the

states have the power to prevent the pollution of their waters.'

This power is preserved by the Tenth Amendment to the U.S.

Constitution.’ Second, federal preemption of this power will

take place only if intended by Congress. Rice v. Santa Fe

Elevator Corp., 331 U.S. 218, 230 (1947). Third, in those in-

stances where the National and state governments exercise con-

current power, such as in the regulation of water pollution, the

Supremacy Clause’® will act to preempt state laws only if there is

an irreconcilable conflict between the two, as when ‘‘ ‘com-

pliance with both federal and state regulations is a physical im-

possibility....’ ’’ Hillsboro County, Fla. v. Automated Med.

Laboratories, Inc., supra, 471 U.S. at ___., 105 S.Ct. at 2375.

* In Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 498 n. 3

(1971), the basic principle recognized was that the states have inherent

power to police the pollution of their waters, in the absence of a

preemptive body of federal law. See also Hillsboro County, Fla. v.

Automated Med. Laboratories, Inc., 471 U.S. ___, ___., 105 S.Ct.

2371, 2378 (1985) (Noting that ‘‘the regulation of health and safety

matters is primarily, ar ' historically, a matter of local concern.’’);

Glicksman, Federal ! zemption and Private Legal Remedies for

Pollution, 134 U.Pa._.Rev. 121, 153, 204 & 207-08 (1985) (hereinafter

Glicksman, Federal Preemption) (Noting this Court’s recognition of

the “‘quasi-sovereign’’ right of each state to protect its natural

resources and environment from degradation from outside sources).

* The National government is one of enumerated powers. The

reserved law-making powers of the states, however, do not derive

from or depend for their existence upon, the Constitution of the

United States. At least so far as that Constitution is concerned, they

are inherent. See U.S. Const. amend. X; United States v. Darby, 312

U.S. 100, 124 (1941).

'° U.S. Const. Art. VI, § 2.

ne en

As was corre. '~ »bserved by the Tennessee Court of Appeals

in Champion, suyt ., « ERC at 1340:

‘Proper respect, therefore, for the independent sovereignty

of the several States requires that federal supremacy be in-

voked only where it is clear that Congress so intended.

Statutes should therefore be construed to avoid preemp-

tion, absent an unmistakable indication to the contrary’.

Penn Terra Ltd. v. Department of Environmental

Resources, 733 F.2d 267, 273 (3rd Cir. 1984). ‘We start

with the basic assumption that Congress did not intend to

displace state law. Where it is argued that Congress in-

tended to withdraw police power from a state, that inten-

tion must_be unmistakable’. Matter of Quanta Resources

Corp., 739 F.2d 912, 916 (3rd Cir. 1984) [, aff'd sub nom.

Midlantic National Bank v. New Jersey Dept. of En-

vironmental Protection, 474 U.S. ___, 106 S.Ct. 755

(1986)]; see Penn Terra Ltd., 733 F.2d at 272-273. There is

a ‘presumption against preemption’. Matter of Oswego

Barge Corp., 664 F.2d 327, 335 (2nd Cir. 1981).

Further, where Congress intends to preempt state law, it usually

says so in affirmative, clear, and explicit terms.'' And, where

Congress has not clearly stated that state law is preempted, state

law is preserved ‘‘unless it conflicts with federal law or would

frustrate the federal scheme, or unless the courts discern from

the totality of the circumstances that Congress sought to occupy

the field to the exclusion of the States’’. Malone v. White

Motor Corp., 435 U.S. 497, 504 (1978). In addition, ‘‘if we are

left with a doubt as to congressional purpose, we should be slow

to find preemption, ‘[flor the state is powerless to remove the ill

effects of our decision, while the national government, which

has the ultimate power, remains free to remove the burden.’ ”’

'" See, e.g., 7 U.S.C. § 228c (Federal Packers and Stockyards Act);

15 U.S.C. § 755(b) (Emergency Petroleum Allocation Act of 1973); 15

U.S.C. § 2617 (Toxic Substances Control Act); 17 U.S.C. § 301

(Federal Copyright Act).

-

a

Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 488 (9th Cir.

1984), cert. denied sub nom. Chevron U.S.A., Inc. v. Sheffield,

472 U.S. __, 105 S.Ct. 2686 (1985) (Alaska Stat. §

46.03.750(e), prohibiting oil tanker ballast discharges into

Alaskan waters, was not preempted by Title II of the Ports and

Waterways Safety Act of 1972, as amended by the Ports and

Tanker Safety Act of 1978, 46 U.S.C. § 391a)."?

The amici fail to discern any ‘‘clear and manifest’’ intent of

Congress in the CWA to preempt state laws in the context of in-

terstate pollution or otherwise.'? Indeed, Congress in 33 U.S.C.

§ 1251(b) expressed its intent ‘‘to recognize, preserve, and pro-

tect the primary responsibilities and rights of States to prevent,

reduce, and eliminate pollution....’’'* Toward this end, 33

'? See generally, Glicksman, Federal Preemption, supra note 8, at

183-85 & 191-92.

'? In Glicksman, Federal Preemption, supra note 8, at 138-39,

195-213 & 223, the author contends that four values — legitimacy, in-

dividual liberty, accommodation, and efficiency — are reflected either

in the CWA and other federal pollution control legislation or the Con-

stitution and are values which Congress and the courts have con-

sidered in deciding whether private remedies for pollution have been

preempted. The author concludes that ‘‘State common-law actions

for interstate pollution are. . .supported by a consideration of the four

values.’’ Jd. at 138.

The author further concludes that ‘‘Congress did not preempt state

common-law remedies for harms by expressly occupying the field of

interstate pollution through the enactment of the Clean Air and Water

Acts,”’ id. at 197, nor has it implicitly done so. Jd. at 198-210. See

also Stoddard v. Western Carolia Regional Sewer Auth., 784 F.2d

1200, 1207 (4th Cir. 1986) (‘‘We see nothing in the Clean Water Act

that presages a congressional intent to occupy the entire field of water

pollution to the exclusion of state regulation.”’); Ouellette, supra, 602

F.Supp. at 269 (“‘[T]here is simply nothing in the Act which suggests

that Congress intended to impose. . limitations on the use of state

law’’ in the interstate pollution context.).

'* This is ““Congress’ express policy’’ in spite of ‘‘extensive federal

oversight. ...’’ Ouellette, supra, 602 F.Supp. at 268.

a

U.S.C. § 1370(1) states that nothing in the CWA precludes or

denies the rights of any state to adopt or enforce mot only ‘‘(A)

any standard or limitation respecting discharge of pollutants’’,

but also ‘‘(B) any requirement respecting control or abatement

of pollution. ...’’ (Emphasis added).

In addition, 33 U.S.C. § 1370(2) states that the CWA shall

ot ‘‘be construed as impairing or in any manner affecting any

right or jurisdiction of the States with respect to the waters (in-

cluding boundary waters) of such States.’’ The only possible

meaning of § 1370(2) is that Congress intended to authorize the

States to police the pollution of their boundary waters except

when Congress ‘‘expressly’’ provided otherwise in the Act.'* No

other meaning can be ascribed to § 1370(2) if the statute is to be

construed in light of the CWA’s underlying policies, one of

which is expressly stated in 33 U.S.C. § 1251(b) to preserve the

inherent police powers of the states to prevent pollution.'*

Il. The City of Milwaukee Decision Of The Seventh Cir-

cuit Court Of Appeals Applied The Wrong Analysis

And Therefore Reached An Erroneous Conclusion

That The CWA Preempts State Regulation Of In-

terstate Water Pollution.

The petitioner, understandably, relies heavily on the decision

of the Seventh Circuit Court of Appeals in City of Milwaukee.

'’ The Ouellette Court, 602 F.Supp. at 268, also relied upon 33

U.S.C. § 1365(e), which provides that ‘‘[nJothing in this section shall

restrict any right which any person. ..may have under any statute or

common law to seek enforcement of any effluent standard or limita-

tion or to seek any other relief.’’ See also Champion, supra, 22 ERC

at 1342; Glicksman, Federal Preemption, supra note 8, at 186-87, 197.

'* Since the water quality protection laws of the amici and the CWA

have the same goals — the prevention and elimination of water pollu-

tion — this Court “‘should be reluctant to infer preemption. ‘[I}t

would be particularly inappropriate. . - because the basic purposes of

the state statute and the [federal] Act are similar.’’’ Chevron,

U.S.A., Inc. v. Hammond, supra, 726 F.2d at@97.

nT

There the Seventh Circuit ruled that the CWA preempted state

law relative to regulation of out-of-state sources of pollution.

That case and its erroneous holding can best be properly

understood in its historical context, which involves a tortuous

path of litigation spanning well over a decade.

A. Milwaukee I

Illinois first brought suit against the City of Milwaukee in the

United States Supreme Court in 1971, invoking the ‘‘original

jurisdiction’’ of the Supreme Court by claiming that Milwaukee

was an instrumentality of the State of Wisconsin and thus, its

action was one against the State of Wisconsin. Milwaukee I,

406 U.S. 91 (1972). At the time the suit was filed and, indeed,

continuing to the present day, the City of Milwaukee was and is

daily discharging thousands of gallons of untreated raw sewage

into Lake Michigan and subsequently polluting the waters of Il-

linois. This Court declined to entertain the suit, holding that

the City of Milwaukee was not a state for purposes of invoking

the Court’s original jurisdiction. However, the Court ruled that

the City of Milwaukee could be sued in an appropriate United

States District Court and created a body of federal common law

to abate such a public nuisance.

The Court took the unusual step of establishing a federal

common law remedy fo. several reasons. First, it found that

the pollution of interstate waters is a legitimate federal concern.

406 U.S. at 101. Second, it found that Congress had not fully ad-

dressed in a comprehensive manner the question of interstate

water pollution. Therefore, the Court felt free to create a com-

mon law remedy in the federal courts. 406 U.S. at 107. Actions

to be brought thereunder were characterized as ‘‘equity suits in

which the informed judgment of the Chancellor will largely

govern.’’ Jd. The Court was careful to note, however, that

future action by Congress in the field of interstate water pollu-

tion could very well abrogate the newly-created federal common

law remedy. /d.

ee

eth cn

Though not an issue in Milwaukee I, and thus not decided by

the Court directly, it is generally recognized that the federal

common law created by the Court preempted state statutory

and common law remedies otherwise applicable to interstate

pollution. 406 U.S. at 107, n. 9; Milwaukee IT, 451 U.S. at 326.

Even so, the Supreme Court in Milwaukee I did not effect an ir-

reversible displacement of state law; nor did it somehow erase

state law out of existence simply by adopting a preemptive

federal common law. Even when preempted by federal com-

mon or statutory law, the police power of the states to act in the

field continues to exist. If and when the National government

retires from the field, the disability that the Supremacy Clause |

imposes on the exercise of the inherent police powers of the

States dissipates.'’

'? As long ago as Sturges v. Crowninshield, 4 Wheat (17 U.S.) 122

(1819), it was argued that the enactment of a national bankruptcy law

which preempted state bankruptcy laws thereby permanently ex-

tinguished the power of the states in that field, even after the repeal of

the federal statute. Mr. Chief Justice Marshall rejected that argu-

ment, writing:

It has been said that Congress has exercised [its bankruptcy]

power, and, by doing so, has extinguised the power of the states,

which cannot be revived by repealing the law of Congress.

We do not think so. If the right of the states to pass a

bankrupt law is not taken away by the mere grant of that power

to Congress, it cannot be extinguished; it can only be suspended,

by the enactment of a general bankrupt law. The repeal of that

law cannot, it is true, confer the power on the states; but it

removes a disability to its exercise, which was created by the act

of Congress.

Id. at 196. See also Chicago & N.W.R.R. Co. v. Fuller, 84 U.S. 560,

568 (1873).

If Congress has no power to permanently and irreversibly displace

state law, the Supreme Court surely cannot do so simply by choosing

to create federal common law. Whatever preemptive effect

Milwaukee I had on state law dissipated upon the demise of federal

common law resulting from this Court’s decision in Milwaukee II,

—_—

B. Milwaukee I

Illinois then proceeded to file suit against the City of

Milwaukee in the United States District Court for the Northern

District of Illinois, under a theory of federal common law

nuisance. It aiso sought relief under two pendant state law

claims and one at common law. Five months later, Congress

enacted significant amendments to the Federal Clean Water

Act, fashioning the law much as it stands today. Both the

Federal District Court'* and the Seventh Circuit'® ruled in favor

of Illinois under a theory of common law nuisance and ordered

the City of Milwaukee to take corrective measures to abate the

pollution. Both Courts rejected the argument of the City of

Milwaukee that the extensive 1972 amendments to the Clean

Water Act had obviated federal common law in the area of in-

terstate control of water pollution. The City of Milwaukee ap-

pealed to this Court.

In Milwaukee II, this Court, on the second occasion that it -

had the case, reversed the Seventh Circuit Court of Appeals.

The Court held that the 1972 Clean Water Act Amendments ex-

hibited an intent on the part of Congress to obviate the federal

common law in this area. Therefore, with respect to a federal

remedy regarding interstate water pollution, the amended CWA

was an agrieved party’s sole recourse. The federal common law

actions created by Milwaukee I were no longer available.

discussed infra. And, unless the CWA itself preempts the application

of state law, the amici cannot be disabled from policing the pollution

of their boundary waters.

'* Illinois v. City of Milwaukee, 366 F.Supp. 298 (N.D. Ill. 1973).

'* Illinois v. City of Milwaukee, 599 F.2d 151 (7th Cir. 1979).

ts ne

As to the validity of Illinois’ pendant state law claims, the

Court specifically declined te rule on them. 451 U.S. at 310n.4.

The Court emphasized that its decision in finding preemption of

federal common law was based so/e/y on considerations respec-

ting the separation of powers between the legislative and judicial

branches of the National government. Thus, as the Fourth Cir-

cuit Court of Appeals recently noted, ‘‘Milwaukee II decided

whether the Act left room for federal common law, ‘not

whether that law pre-empts state law.’ ’’ Stoddard v. Western

Carolina Reg. Sewer Auth., supra, 784 F.2d 1207 n. 9. The

quite different considerations respecting the division of powers

between the National government and the states and whether

the CWA preempted state law did not come into play. See 451

U.S. at 316-17 &n. 9. The Court was careful to emphasize that

‘*the comprehensive character Of a federal statute’ is ‘‘an insuf-

ficient basis to find preemption of state law’’ and, indeed, is not

even ‘‘relevant’’ to the question whether state law can be con-

currently appiied. /d. at 319 n. 14.”° See also Hillsboro County,

Fla. v. Automated Med. Laboratories, Inc., supra, 471 U.S. at

___., 105 S.Ct. at 2377.

*® The case of Askew v. American Waterways Operators, Inc., 411

U.S. 332 (1973), is illustrative of this principle. That case involved, in

part, the question of whether the Florida Oil Spill Prevention and

Pollution Control Act, Fla. Stat. Ann. § 376.011 ef seg., was preemp-

ted by the Federal Water Quality Improvement Act, 33 U.S.C. § 1161

et seq. Although noting that ‘“The Federal Act, to be sure, contains a

pervasive system of federal control over discharges of oil’’ into

navigable waters, 411 U.S. at 330, the Court nevertheless found the

State Act not in conflict with the federal scheme and thus not preemp-

ted.

In a similar vein, this Court recently rejected the argument that the

regulation of blood plasma under § 351(a) of the Public Health Ser-

vice Act, 42 U.S.C. § 262(a), although ‘‘a subject of national

concern’’, was not “‘an area of overriding national concern’’ so that

preemption of local ordinances and regulations would be inferred.

Hillsboro County, Fla. v. Automated Med. Laboratories, Inc., supra,

471 U.S. at ___, 105 S.Ct. at 2378. See also Chevron U.S.A., Inc. v.

Hammond, supra, 726 F.2d at 491-92.

oa Te

C. City of Milwaukee

The case then went back to the Seventh Circuit. On remand,

the Seventh Circuit was left with addressing the alternative state

law theory of recovery asserted in the District Court by the State

of Illinois, which issue had been left undecided by this Court.?'

Illinois had invoked the pendant jurisdiction of the Court and

argued in the alternative that Milwaukee was subject to Illinois

state statutory and common laws prohibiting water pollution.

The Seventh Circuit disagreed, ruling that just as the federal

common law created by Milwaukee I was the exclusive remedy

to abate interstate pollution prior to the 1972 CWA Amend-

ments, the federal statutory (CWA) scheme is now the exclusive

remedy.

The Seventh Circuit grounded its finding of preemption on its

reading of Milwaukee I and Milwaukee II:

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. The claimed pollution of interstate

?! It decided several other cases as well. In a related case, the

Federal District Court for the Northern District of Illinois had decided

the question of whether the CWA had preempted state law in two

decisions with opposite results. In Scott v. City of Hammond, 519

F.Supp. 292, 298 (N.D. Ill. 1981), Judge Crowley of that Court ruled

that there was “‘no doubt that thé [CWA] does not preempt states

from enforcing stricter controls than the Federal government on in-

state polluters’’. Following this decision, Judge Crowley resigned and

Judge Shadur of that Court, to whom the Scott case had been

reassigned, ae ae Gael ae cee see Illinos v. Lever

Bros., 530 F.Supp. 293, 294 (N.D. Ill. 1981), ruled to the contrary in

Chicago Park Dist. v. Sanitary Dist. of Hammond, 530 F.Supp. 291

(N.D. ill. 1981). The appeal of those cases was consolidated with the

remand of Milwaukee II to the Seventh Circuit.

oo

waters is a problem of uniquely federal dimensions requir-

ing the application of federal standards both to guard

states against encroachment by out-of-state polluters 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 1982 FWPCA (the

governing federal law created by Congress) authorizes

resort to state law.

731 F.2d at 410-411.

The logic of the Seventh Circuit is tempting, but nevertheless

wrong. It starts from the arguable premise that the federal com-

mon law remedies created by Milwaukee I preempted or put a

lid on all state law remedies to control interstate water pollu-

tion.?? Under the Seventh Circuit’s reasoning, since Milwaukee

II displaced the judicially-created federal common law, it

automatically became the new lid preventing resort to state law

remedies. According to the Seventh Circuit, this is so because

the ‘‘very reasons’’ for adopting a preempting federal common

law dictate a preempting federal statute.

Here lies the pivotal error in the Seventh Circuit’s rationale.

The Supreme Court’s reasons for adopting a federal common

law rule cannot be imputed to the United States Congress when

it abrogates that rule and replaces it with a statute. To deter-

mine the intent of Congress under the CWA, one must look to

22 The District Court’s rationale in Ouellette, supra, also erroneous-

ly appears to accept that this Court’s decision in Milwaukee 1 ir-

revokably preempted state law in the area, with the result that the

‘controlling question’’ is the extent to which 33 U.S.C. 1365(e) and

1370 authorize resort to state law. 602 F.Supp. at 268. The Ouellette

Court correctly concluded, however, ‘‘that the Act authorizes actions

to redress injury caused by water pollution of interstate water through

the laws of the state in which the injury occurred.’’ /d. at 269.

te $3 exe

the Act itself,?? mot policy considerations involved in this

Court’s creation of a federal common law remedy.** ‘‘Before

the Supreme Court finds that state law has been preempted,

however, a clear and manifest congressional purpose must be

found, and the Court’s analysis includes due regard for the con-

cepts of federalism.’’ Stoddard v. Western Carolina Reg. Sewer

Auth., supra, 784 F.2d at 1207, citing Milwaukee II, 451 U.S. at

316-17, and Jones v. Rath Packing Co., 430 U.S. 519, 525

(1977). Had the Seventh Circuit confined its inquiry to the

CWA and the congressional intent expressed therein, it should

have arrived at a different conclusion.

Furthermore, the Seventh Circuit’s attempt to explain away

two key provisions of the CWA is far from convincing. As

noted above, 33 U.S.C. § 1370(2) provides that the CWA shall

not be construed as impairing ‘‘any right or jurisdiction of the

States with respect to the waters (including boundary waters) of

such States.”” As the Court in Bass River Associates v. Mayor,

Township Commissioner, 743 F.2d 159, 165 (3rd Cir. 1984),

noted, this section ‘‘clearly shows Congress’ intent not to

‘preempt state anti-pollution efforts.’’ The Seventh Circuit

dismissed the clear meaning of this provision by simply con-

cluding that ‘‘Congress intended no more than to save the right

and jurisdiction of a state to regulate activity occurring within

the confines of its boundary waters.” City of Milwaukee,

supra, 773 F.2d at 413. The Court likewise held that 33 U.S.C.

§ 1365(e), which provides that nothing in § 1365 restricts any

right of relief under any statute or common law, preserves only

“‘a statute or common law of the state in which the discharge oc-

curs’’. 731 F.2d at 414. The Tennessee Court of Appeals

** When Congress’ intent controls, the statutory text must be the

first source consulted. Reiter v. Sonotone Corp., 442 U.S. 330, 337

(1979).

** See Champion, supra, 22 ERC at 1341.

ee

characterized this as a ‘‘strained reading’’ of these two provi-

sions. Champion, supra, 22 ERC at 1342.”°

The Seventh Circuit’s construction of § 1365(e) and § 1370

seems to have its foundation more in a skewered policy judg-

ment than in the plain meaning cf the CWA when it suggests,

731 F.2d at 413-14, that discharges might be forced to meet

standards more stringent than those established by the permit-

issuing state. That, however, the amici argue, is precisely the

regulatory scheme that is envisioned and permitted by the CWA.

To borrow from language of this Court in another context,

though applicable here, ‘“The federal interest at stake here is to

ensure minimum stancards, not uniform standards.’’ Hillsboro

County, Fla. v. Automated Med. Laboratories, Inc., supra, 471

U.S. at ____., 105 S.Ct. at 2380 n. 5 (1985).** Certainly, polluters

should not be immunized from violations of state water quality

laws and regulations simply because their industrial plaxit hap-

pens to be conveniently located on the other side of a state

boundary.?’

** See also note 15, supra.

** Indeed, as the Court in Chevron, U.S.A., Inc. v. Hammond,

supra, 726 F.2d at 491, stated, ‘‘Congress has indicated emphatically

that there is no compelling need for uniformity in the regulation oi

pollutant discharges — and that there is a positive value in encourag-

ing the development of local pollution contro} standards stricter than

the federal minimums’’. Further, ‘‘there is no. ..dominant nationa!

interest in uniformity in the area of coastal environmental

regulation’’. Jd. at 492. As Mr. Justice Drowota, dissenting in

Champion, supra, 24 ERC at 1378, noted, ‘‘Nothing I have found in

the FWPCA reveals a Congressional intent to establish uniform stan-

dards....’’ Further, “‘unwavering conformity to purposeless unifor-

mity does not serve the interests of federalism or of the Commerce

Clause’’. Jd. See also Glicksman, Federal Preemption, supra note 8,

at 189, 200, 208, 212-13.

*” The Seventh Circuit likewise misses the mark when it suggests that

in the context of interstate water pollution ‘‘[t}he issue is in fact

‘dividing the pie,’ i.e., the equitable reconciliation of competing uses

of an interstate body of water....’’ City of Milwaukee, supra, 731

—_— a

Contrary to the Court of Appeals’ suggestion that the CWA §

402, 33 U.S.C. § 1342, permitting process ‘‘seems now to be the

appropriate federal forum for adjusting the competing claims of

states in the environmental quality of interstate waters,’’ 731

F.2d at 412 n. 5, the mere availability of the § 402 administrative

process is no indication that Congress intended to displace any

other jurisdiction or remesly of the states.** The process provid-

ed by § 402 for an affected state to challenge the issuance of an

NPDES permit by the issuing state is exceedingly cumbersome

and simply does not provide an adequate remedy for the

amelioration of interstate water pollution.”’ Indeed, it is at best

unclear whether a refusal by the Environmental Protection

Agency to veto an issuing state’s NPDES permit can be

challenged in any federal court by the affected state,’ leaving

F.2d at 410. Rather, the amici assert, the issue is, in fact, the elimina-

tion of pollution from the nation’s navigable waters, which Congress

has established as the goal of the CWA. See 33 U.S.C. § 1251(a)(1);

Milwaukee II, supra, 451 U.S. at 318 (‘‘The ‘major purpose’ of the

[1972] Amendments was ‘to establish a comprehensive long-range

policy for the elimination of water pollution.’ ’’).

** Indeed, 33 U.S.C. §§ 1251(b), 1365(e), and 1370 indicate the con-

trary.

2° See Glicksman, Federal Preemption, supra note 8, at 166-67 (‘‘It

is not clear. . .that the Clean Water Act provides adequate means for a

state to protect its resources from impairment by another state or its

citizens.’’) See also id. at 198-199, 205-06.

*° The Court of Appeals noted this uncertainty in ///inois v. City of

Milwaukee, 599 F.2d 151, 160 & n. 17 & 18 (7th Cir. 1979). This

Court has not decided the issue, merely stating in Crown Simpson

Pulp Co. v. Costle, 445 U.S. 193, 197 n. 9 (1980) (emphasis added),

that such a failure to veto would ‘“‘not necessarily’’ constitute

reviewable EPA action. See Kitlutsisti v. Arco Alaska, Inc., 592

F.Supp. 832, 841 n. 6 (D. Alaska 1984) (‘‘The Supreme Court... in-

dicated that. . .the EPA’s failure to object to such permit may not be

[subject to judicial review].’’).

Several cases have held there to be no review available in either the

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

ve ee

those harmed in the affected state completely to the unfettered

mercy of state and federal administrative authorities.

CONCLUSION

For the reasons stated above, the amici respectfully urge the

Court to affirm the decision of the United States Court cf Ap-

peals for the Second Circuit.

Respectfully submitted.

W. J. MICHAEL CODY*

Attorney General & Reporter

of the State of Tennessee

JOHN KNOX WALKUP

Chief Deputy Attorney General

FRANK J. SCANLON

Deputy Attorney General

MICHAEL D. PEARIGEN

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219-5025

(615) 741-5687

*Counsel Of Record For Amici

Curiae

861 (D.C. Cir. 1980); Save the Bay, Inc. v. EPA, 556 F.2d 1282,

1290-91 (Sth Cir. 1977); Mianus River Preservation Comm. v. EPA,

541 F.2d 899, 909 & n. 24 (2nd Cir. 1976), or in the Federal District

Courts. Schramm, supra, 631 F.2d at 860; Chesapeake Bay Founda-

tion, Inc. v. U.S., 445 F.Supp. 1349, 1353 (E.D. Va. 1978). But see

Save the Bay, Inc., supra, 556 F.2d at 1292-96 (District Court review

available only to determine whether EPA has considered alleged viola-

tions of federal standards or has based decision on statutorily irrele-

vant grounds). Of the above cases, interstate pollution was involved

only in Schramm, supra.

se Ne al i tit tie Ps a :

I hereby certify that the requisite number of true and exact

copies of the foregoing Brief have been duly served bv mailing,

on this the 26th day of June, 1986, to the below-referenced

counsel:

a pee

CERTIFICATE OF SERVICE

Honorable Charles Fried

Solicitor General

United States Department of Justice

Washington, D.C. 20530

Roy L. Reardon

One Battery Park Plaza

New York, New York 10004

Attorney for Petitioner

Of Counsel For Petitioner:

Albert X. Bader, Jr.

Simpson, Thacher & Bartlett

One Battery Park Plaza

New York, New York 10004

James W. B. Benkard

John R. D’ Angelo

Davis, Polk & Wardwell

1 Chase Manhattan Plaza

New York, New York 10005

Dinse, Erdmann & Clapp

209 Battery Street

P. O. Box 988

Burlington, Vermont 05402

Susan W. Wanat

Mid-America Legal Foundation

Suite 1725

20 North Wacker Drive

Chicago, Illinois 60606

Amicus Curiae Supporting Petitioner

— pe

Peter F. Langrock

Emily J. Joselson

Langrock, Sperry, Parker & Wool

Drawer 351

Middlebury, Vermont 05763

Attorneys for Respondents

Jeffrey L. Amestroy

Attorney General

Merideth Wright

Assistant Attorney General

Pavilion Building

Montpelier, Vermont 05602

Attorneys for State of Vermont As Class Member

MICHAEL D. PEARIGEN

Assistant Attorney General