Committee for the Consideration of the Jones Falls Sewage Sys. v. Train
Citation: 6 ELR 20703
No. No. 74-2076, 539 F.2d 1006/9 ERC 1212/(4th Cir., 07/16/1976)
The Fourth Circuit Court of Appeals, sitting en banc, holds five to three that the federal common law of nuisance does not authorize a suit by private citizens to enjoin intrastate stream pollution. The doctrine of Illinois v. City of Milwaukee, 2 ELR 20201, does not extend beyond the abatement of public nuisances in interstate controversies in which the complainant is a state and the offenders are causing extra-territorial harm. In this case, there is no allegation of any interstate harm, no claim of vindication of the rights of another state, and the discharge is permitted under the Federal Water Pollution Control Act Amendments of 1972. Reserve Mining Co. v. Environmental Protection Agency, 5 ELR 20596, reinforces the conclusion that federal common law does not govern the essentially local pollution being challenged here. The complaint was therefore properly dismissed by the district court, since it failed to state a claim upon which relief could be granted.
A lengthy dissent argues that the federal common law of nuisance applies to all navigable waters of the United States rather than to only interstate waters, and that a private citizen can sue under the federal question statute for abatement of intrastate pollution which allegedly violates this federal common law.
Counsel for Plaintiffs-Appellants
Karin P. Sheldon
Berlin, Roisman & Kessler
1712 N St., NW
Washington DC 20036
Counsel for Defendants-Appellees
Searle E. Mitnick
Charles B. Heyman
Kaplan, Heyman, Engelman & Belgrad 10th Floor, Sun Life Bldg.
Baltimore MD 21201
Francis B. Burch, Attorney General
Paul M. Vettori, Special Asst. Attorney General
Randall M. Lutz
Paul Water Asst. Attorneys General
1 S. Calvert St.
Baltimore MD 20201
Benjamin L. Brown, City Solicitor
Henry S. Swartzwelder, Jr., Assoc. City Solicitor
William Hughes, Chief City Solicitor
508 Tower Bldg
Baltimore MD 21202
Harry S. Shapiro, Chief Asst. County Solicitor
J. Carroll Holzer
R. Bruce Alderman County Solicitors
Peter Max Zimmerman
Maurice W. Baldwin, Jr. Asst. County Solicitors
308 County Office Bldg.
Towson MD 21204
Haynesworth, C.J. joined by Winter, Russell, Field & Widener, JJ.; Butzner, J. dissents in a separate opinion, in which Bryan & Craven, JJ. join.
Judge Bryan, Senior Circuit Judge, and Judge Craven join in this dissent.