Over the last two years, the federal common law of nuisance has been described in these pages as a "potent legal tool"¹ the significance of which, due to its "revolutionary growth,"² could foreseeably rival the citizen suit provisions in the major federal environmental statutes.³ These observations were not hyperbole. With only scant precedential or legislative support, the Seventh and Third Circuits had boldly expanded the scope of the doctrine to create a cause of action affording judicial relief in an unprecedented number of water pollution contexts. Dicta in these and other decisions suggested that air pollution controversies would be equally appropriate for resolution under the common law,⁴ and that no other area of environmental pollution lay beyond the scope of the doctrine. Only the earlier and often distinguished of this immature line of cases suggested significant limits on the reach of the federal common law of nuisance.⁵

Although articulated judicial limits on the scope of the doctrine could have been expected as the cases proliferated, the opportunity never arose. The federal common law of nuisance met an early demise near the end of the Supreme Court's 1981 Term. In City of Milwaukee v. Illinois,⁶ the Court ruled that the federal courts had erred in relying on federal common law as authority for ordering the city to abate its discharges of sewage into Lake Michigan. Congress, the High Court explained, by creating within the Federal Water Pollution Control Act (FWPCA) a "comprehensive" regulatory system applicable to such discharges, has occupied the field to an extent that the federal courts are powerless to develop separate, not to mention stricter, substantive legal requirements. In Middlesex County Sewerage Authority v. National Sea Clammers Association,⁷ this ruling was extended. In that decision, the Court declared that in the area of water polution generally there is simply no federal common law.⁸