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Milwaukee, City of v. Illinois

ELR Citation: 11 ELR 20406
Nos. No. 79-408, 451 U.S. 304/15 ERC 1908/(U.S., 04/28/1981) Rev'd

The Supreme Court vacates a Seventh Circuit Court of Appeals opinion, 9 ELR 20347, upholding in part a district court decision ordering the city of Milwaukee to abate discharges of treated and untreated sewage effluent into Lake Michigan. Justice Rehnquist notes at the outset that the federal courts, which are not general common-law courts, possess the authority to develop substantive common law only in restricted instances, such as where there exists a significant conflict between a federal interest and state law. Thus, in determining whether federal statutory law governs a question previously the subject of federal common law, it is to be assumed that statutory law governs. In the area of water pollution law, the 1972 amendments to the Federal Water Pollution Control Act (FWPCA) constitute a comprehensive and complete restructuring of the preexisting law. Particularly as applied to the sewage effluents that are disputed in this case, the FWPCA amendments established a complex administrative scheme, involving state and federal agencies, designed to combat the problem. Indeed, the effluents from the city of Milwaukee's facilities have been specifically addressed within permits issued by the state of Wisconsin. It was thus erroneous for the district court to utilize federal common law to correct the perceived insufficiency of the legislatively created system. the court rejects the assertion that §505 of the FWPCA reveals congressional intent to preserve federal common law as it was being applied by courts at the time of enactment. Even indulging the unlikely assumption that the reference to common law in §505(e) implicitly includes federal as well as state common law, that provision applies only to the citizen suit provision and not to the Act as a whole.

Justice Blackmun, joined by Justices Stevens and Marshall, dissents. In his view, courts should not assume that the enactment of a federal statute automatically displaces federal common law on the subject but should be sensitive to the need for federal common law to complement statutory law, particularly with respect to disputes among states. Moreover, under his reading of §505 of the FWPCA and the legislative history of the 1972 amendments, Congress did not intend to preempt federal common law, but expected it to continue to apply to water pollution to the extent that the Act does not.

Counsel for Petitioners
Elwin J. Zarwell, Richard W. Cutler, Samuel J. Recht, James H. Baxter III, Andrew M. Barnes
Quarles & Brady
Marshall & Ilsley Bank Bldg., 780 N. Water St., Milwaukee WI 53202
(414) 277-5000

James B. Brennan, City Attorney; Michael J. McCabe, Ass't City Attorney
City Hall, 200 E. Wells St., Milwaukee WI 53202
(414) 278-2601

Counsel for Respondents
William J. Scott, Attorney General
500 S. 2d St., Springfield IL 62701
(217) 782-1090

Sanford R. Gail, Special Ass't Attorney General
Karaganis & Gail, Ltd.
Suite 2500, 150 N. Wacker Dr., Chicago IL 60606
(312) 782-1905

Counsel for Amicus Curiae United States
Andrew J. Levander, Ass't to the Solicitor General; Wade H. McCree Jr., Solicitor General; James W. Moorman, Ass't Attorney General; Louis F. Claiborne, Deputy Solicitor General; Dirk D. Snel, Martin W. Matzen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4063

Michele B. Corash, General Counsel; Lucy Ellen Ray
Environmental Protection Agency, Washington DC 20460
(202) 755-2511