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Illinois v. Milwaukee, City of

Citation: 2 ELR 20201
No. No. 49 Orig., 406 U.S. 91/4 ERC 1001/(U.S., 04/24/1972)

Federal courts have power to create federal common law concerning pollution of interstate or navigable waters. The remedies which Congress provides are not necessarily the only federal remedies available, nor do they necessarily mark the outer bounds of federal common law on the subject. Federal common law may be fashioned when there is an overriding federal interest in a uniform rule of decision or when the controversy touches basic interests of federalism. Although at some point in the future new federal laws may preempt the field of federal common law of nuisance, until that occurs courts may provide relief according to equitable principles. The pollution of interstate or navigable waters is a federal question, and the interest in the purity of the waters puts beyond question the jurisdictional amount. Illinois is denied leave to file an original complaint in the Supreme Court in a public nuisance suit which charges that certain Wisconsin cities are permitting raw sewage to pollute Lake Michigan. A primary question in deciding whether the Supreme Court should accept discretionary original jurisdiction is whether adequate alternative forums and remedies exist. Such forums and remedies are available here in theappropriate federal district court.

Counsel for Plaintiff
Fred F. Herzog
Assistant Attorney General
160 N. La Salle Street — Room 900
Chicago, Illinois 60601

Counsel for Defendant
Harry G. Slater
City Attorney
Room 800 City Hall
200 E. Wells Street
Milwaukee, Wisconsin 53020