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International Paper Co. v. Ouellette

Citation: 17 ELR 20327
No. No. 85-1233, 479 U.S. 481/25 ERC 1457/(U.S., 01/21/1987) Rev'd in part & remanded

The Court rules that the Federal Water Pollution Control Act (FWPCA) preempts state common law nuisance remedies for interstate water pollution to the extent that an affected state seeks to impose liability under its laws on a point source in another state. The Court first rules that the only state suits that remain available after the enactment of the 1972 amendments to the FWPCA are those specifically preserved by the Act. Interstate pollution has generally been a matter of federal law, and the 1972 amendments establish a comprehensive program for the regulation of water pollution. The Court next holds that Vermont citizens may maintain a tort action against a New York company discharging into the waters of interstate Lake Champlain in Vermont courts, but the law of New York must be applied. Sections 510 and 505(e), the FWPCA's savings clauses, do preserve some state causes of action despite congressional intent to dominate the field of water pollution regulation, but do not compel the conclusion that an injured party may bring suit under the law of any affected state. Section 505(e) applies only to § 505, the citizen suit section, and § 510 preserves the authority of a state with respect to the waters of that state. Neither section precludes preemption of state law by other provisions of the FWPCA. Moreover, allowing affected states to impose their laws on out-of-state dischargers who are complying with the discharge requirements of their state would seriously interfere with the goals and objectives of the Act. Application of Vermont law against a New York discharger would subvert the national pollutant discharge elimination system (NPDES) permitprogram, since that law could effectively override the permit requirements and policy choices made by New York. A point source would be subjected to penalties, including immediate abatement, imposed by an affected state with more stringent standards than the state that issued the NPDES permit. In addition, state nuisance standards are often vague and indeterminate. Subjecting the source to its own state's nuisance law, however, does not give rise to the same concerns of uniformity and uncertainty.

Four Justices in two partial concurrences/partial dissents concur in the ruling that the FWPCA does not preempt a private nuisance suit filed by an affected state's citizens in that state's courts, but would hold that the affected state's law could be applied. The Justices conclude that the Court improperly reaches out to decide the latter issue, since Vermont and New York private nuisance law are identical and Lake Champlain borders on these two states only.

[The lower court decisions are published at 15 ELR 20377 and 16 ELR 20012.]

Counsel for Appellee
James W. B. Benkard
Davis, Polk & Wardwell
One Chase Manhattan Plaza, New York NY 10005
(212) 530-4000

Counsel for Appellant
Susan F. Eaton
Langrock, Sperry, Parker & Wool
15 S. Pleasant St., P. O. Drawer 351, Middlebury VT 05753-0351
(802) 388-6356