Until the early part of this decade, the federal common law of nuisance consisted of little more than a nebulous theory asserting the authority of the federal courts to remedy serious instances of interstate pollution. In 1972, Justice Douglas penned his landmark opinion in Illinois v. City of Milwaukee,¹ in which the Supreme Court announced that the federal question statute² conferred jurisdiction upon the district courts to entertain common law nuisance cases. Moreover, in resolving such cases federal judges were to create, develop, and apply a body of federal common law. Because, however, that decision was simply a dismissal of a petition to invoke its original jurisdiction, the Court declined to furnish the lower courts with concrete guidance as to its conception of the parameters or direction of the new doctrine. The fresh clay thus handed the lower courts was so soft that their attempts to formulate a coherent body of law were halting, inconsistent, and often imbued with a judicial conservatism at odds with the progressive and innovative spirit of Illinois.

The Seventh Circuit Court of Appeals, only months after its deliberate but forward-looking opinion on remand in Illinois,³ recently handed down another decision that represents a significant expansion of the federal common law doctrine which augurs for its extended availability to new classes of plaintiffs in a variety of new situations. In City of Evansville v. Kentucky Liquid Recycling, Inc.,⁴ in which several municipalities sought damages for defendant's pollution of the Ohio River with toxic chemicals, the appeals court rejected the trial court's dismissal of the complaint on the ground that the doctrine was applicable only in litigation brought by sovereign states. Thus was discarded a tenet which has done much to restrict access to this form of judicial relief by victims of pollution. Of equal importance is the Seventh Circuit's ruling that plaintiffs had properly stated a claim for damages. This appears to open a door to future plaintiffs seeking relief from pollution which has long since ceased or is otherwise irremediable in equity. Moreover, it provides a powerful disincentive to unlawful pollution over and above that provided by existing statutory sanctions.