State-Law Remedies for Interstate Water Polluiton: The Legacy of Illinois v. Milwaukee

June 1986
Citation:
16
ELR 10136
Issue
6
Author
Laura H. Kosloff

Editors' Summary: The Second Circuit recently held that the Federal Water Pollution Control Act (FWPCA) preserves state tort remedies in interstate water pollution disputes and makes applicable the law of the state in which the alleged injury took place. As a result, Vermont citizens will have their claims concerning pollution of Lake Champlain by a paper mill located across the lake in New York decided under their own law. In so holding, the Second Circuit expressly took exception to a recent decision of the Seventh Circuit, which held that the law of the polluter's state applied. The Seventh Circuit decision had been the last act in the long-running litigation between Illinois and the city of Milwaukee over contamination of the waters of Lake Michigan by pollution from Milwaukee sewage treatment plants, litigation that had seen both rebirth and reinterment by the Supreme Court of the federal common law of nuisance in interstate water pollution cases. Now the Court will resolve the last lingering issue and the law of interstate water pollution at last will be clear. The author reviews the issues in the case now before the Court and traces their history. She concludes that although the Court could find state tort law barred from the field, it probably will follow the two circuits and hold that the FWPCA preserves state law. Not convinced by either circuit's rationale for its choice of which state's law governs, she reasons that applying the law of the plaintiff's state is the better choice, since it would be consistent with normal choice of laws rule and serve the pollution-elimination goal of the FWPCA.

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