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National Audubon Soc'y v. Department of Water

Citation: 19 ELR 20198
No. Nos. 85-2046 et al., 869 F.2d 1196/28 ERC 1373/(9th Cir., 10/06/1988)

The court holds that there is no federal common law nuisance claim for air or water pollution caused by stream diversions. The diversions lowered the level of Mono Lake, causing air pollution when the wind picked up dust from the exposed lake bed. The court first holds that the Federal Water Pollution Control Act preempts any federal common law nuisance claim for water pollution. The court next holds that there is no cause of action for a federal common law nuisance claim based on air pollution. Congress has not authorized creation of federal common law for air pollution caused by wind-blown dust; the Clean Air Act limits federal regulation of air pollution to specific mobile and stationary sources. Also, there is no uniquely federal interest justifying creation of federal common law on this issue. The Clean Air Act limits the obligations of the United States to the regulation of particulate pollution only, and the statute's penumbra does not authorize claims for pollution caused by wind-blown dust. Moreover, states have primary responsibility for air quality. The federal interest in air quality does not so involve the authority and duties of the United States as sovereign as to require application of federal law. On the contrary, application of state law is appropriate, since there is no conflict between the alleged federal interest and the use of California common law. By also suing under state law, plaintiff confirms that federal common law is unneeded. Because this case involves primarily state law claims, California may also have a substantial interest in applying its own nuisance law. The court next holds that the case does not involve an interstate dispute requiring resolution under federal law. Although the air pollution may cross California's border into Nevada, the dispute is essentially domestic and does not involve a state suing an extraterritorial source for causing pollutionwithin its territory. The court does not reach the questions of whether the Clean Air Act would preempt a federal common law nuisance claim or whether plaintiff would have standing to assert such a claim, and affirms the district court's remand of the pendent state claims to state court.

A dissent would hold that the overriding federal interest in clean air allows the plaintiff to bring a federal common law nuisance action.

Counsel for Plaintiffs
F. Bruce Dodge, Patrick Flynn
Morrison & Foerster
345 California St., San Francisco CA 94104
(415) 434-7000

Counsel for Defendants
Janet K. Goldsmith
Kronick, Moskovitz, Tiedemann & Girard
12th Fl., 770 L St., Sacramento CA 95814
(916) 444-8920

Roderick E. Walston
Office of Attorney General, Department of Justice
1515 K St., Ste. 511, Sacramento CA 95814
(916) 324-5437

Before Goodwin* and Reinhardt, JJ.