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Illinois v. Outboard Marine Corp.

Citation: 10 ELR 20323
No. Nos. 79-1341, -1725, 619 F.2d 623/14 ERC 1281/(7th Cir., 03/28/1980)

Reversing the district court's dismissal of a suit for failure to state a claim on which relief can be granted, the Seventh Circuit Court of Appeals rules that, under the federal common law of nuisance, suit may be brought to remedy pollution of any navigable water of the United States. The trial court had dismissed the suit on the ground that it concerned pollution of intrastate tributaries of Lake Michigan which were not subject to federal common law. The court of appeals finds this to be an overly restrictive interpretation of the Supreme Court's decision in Illinois v. Milwaukee, 2 ELR 20201. The proper reading of that case extends the doctrine to all navigable waters, regardless of whether they happen to be situated between states. To the extent that other courts have concluded otherwise, the Seventh Circuit disagrees with their reasoning. A broader interpretation of the doctrine is supported by several practical considerations.First, it precludes the possibility that a state might have a common law cause of action against only one of two equally responsible polluters simply because one is located on the near rather than the far shore of a river on the state boundary. Second, an expansive view of the doctrine permits all suits against a given polluter to be brought in a single federal court rather than forcing certain intrastate disputes to be handled by state courts. Third, it promotes a nationally uniform body of common law and thus prevents "forum shopping" by industries interested in siting facilities where pollution control laws are least stringent. In addition, the court reverses a ruling by the district court denying the State of Illinois' motion to intervene in a separate suit by the United States involving the same facts and defendant. Section 505(b) of the Federal Water Pollution Control Act permits any person to intervene as of right in any enforcement suit brought by the government.

Counsel for Appellant State of Illinois
John Van Vranken, Ass't Attorney General
188 W. Randolph Dr., Chicago IL 60601
(312) 793-2491

Counsel for Appellee Outboard Marine Corp.
Bruce A. Featherstone
Kirkland & Ellis
200 E. Randolph Dr., Chicago IL 60601
(312) 861-3260

Counsel for the United States
Thomas P. Sullivan, U.S. Attorney
219 S. Dearborne St., Chicago IL 60604
(312) 353-5300

Before SWYGERT, Circuit Judge, WISDOM, Senior Circuit Judge,* and TONE, Circuit Judge.