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Long Beach, Township of v. New York, City of

Citation: 8 ELR 20453
No. No. 76-1930, 445 F. Supp. 1203/11 ERC 1417/(D.N.J., 01/24/1978)

The court denies defendants' motion to dismiss claims under the Federal Water Pollution Control Act (FWPCA), the Marine Protection, Research and Sanctuaries Act (MPRSA), and the federal common law of nuisance seeking declaratory and injunctive relief against the defendants' dumping of garbage and sewage sludge into the Hudson River and Atlantic Ocean. Venue is properly laid in New Jersey and the federal question statute and the savings clause of each act confer jurisdiction over the FWPCA and MPRSA claims upon the court despite plaintiff's failure to give 60-days notice before filing suit. The claims are not barred by sovereign immunity; Congress intended to waive immunity not only where there has been compliance with the notice provisions, but as to any suit to enforce the statutes. The court accepts defendants' contentions that there is no private right of action under § 13 of the Rivers and Harbors Act and dismisses plaintiff's claim under that provision. It also finds that there is no general constitutional right to environmental quality and dismisses claims which plaintiff brought under the Fifth, Ninth, and Fourteenth Amendments. Taking into account the interstate nature of the dispute, the court holds that the remaining claims are properly based on the federal common law of nuisance even though plaintiff is a township rather than a state. The court expresses the view that the federal common law of nuisance has not been preempted by the 1972 FWPCA amendments and the regulations issued thereunder, and denies the motion to dismiss on this ground without prejudice to defendants' right to renew this objection after further clarification of the issues and the issuance by the Environmental Protection Agency of new effluent regulations.

Counsel for Plaintiff
Richard J. Shackelton
Hazeltine, Zlotkin & Dasti
22nd & Long Beach Blvd., Ship Bottom NJ 08008
(609) 494-2136

Counsel for Defendants
Bernard Richland, Corporation Counsel
Municipal Bldg., New York NY 10013
(212) 566-3929

Carl R. Woodward, III, Ass't U.S. Attorney
P.O. Box 330, Newark NJ 07102
(201) 645-2289