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Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n

Citation: 11 ELR 20684
No. Nos. 79-1711 et al., 453 U.S. 1/16 ERC 1118/(U.S., 06/25/1981) Rev'd

Reversing the judgment of the Third Circuit Court of Appeals, 10 ELR 20155, the United States Supreme Court rules that the federal common law of nuisance has been entirely preempted by the Federal Water Pollution Control Act (FWPCA) in the area of water pollution. Respondents commercial fishermen sought relief from the dumping by the States of New York and New Jersey and several municipalities of sewage sludge into areas of the Atlantic Ocean near where respondents conducted their commercial shellfish harvesting activities. The district court dismissed their claims under the FWPCA and the Marine Protection, Research, and Sanctuaries Act (MPRSA) for failure to comply with the 60-day notice requirements in the citizen suit provisions of both statutes, and dismissed their federal common law nuisance claim. The Third Circuit reversed, ruling that respondents had established a valid common law nuisance cause of action and that it was unnecessary to comply with the 60-day notice requirements because parties who are directly injured by specific instances of water pollution may invoke an implied right of action which is not subject to such a limitation. The Supreme Court first rejects the court of appeals' conclusion that either statute gives rise to an implied right of action. Since each Act establishes an elaborate enforcement mechanism which includes, among other things, an authorization for citizen suits, there is no reason to believe that Congress intended to permit enforcement actions outside the framework of the carefully crafted citizen suit sections. It was error for the court below to read § 505(e) of the FWPCA, which expressly preserves rights of action under "any statute," to include suits brought under the FWPCA itself. Further, and though none of the parties raised the issue, the Court determines that in § 505 of the Act Congress withdrew the right which might otherwise exist under 42 U.S.C. § 1983 to bring suit against state officials for violations of rights guaranteed under the FWPCA. Finally, the Court rules that respondents' claims under the federal common law of nuisance must be rejected under City of Milwaukee v. Illinois, 11 ELR 20406, in which the Court determined that the federal common law of nuisance in the area of water pollution has been entirely preempted by the FWPCA. The same concusion applies in the area of ocean pollution, which is extensively regulated by the MPRSA.

Justice Stevens, joined by Justice Blackmun, concurs that there is no implied right of action under the FWPCA and MPRSA, but dissents from the Court's ruling that the enactment of the two statutes should be read to withdraw the remedies which would otherwise be available under 42 U.S.C. § 1983. In addition, he asserts that the FWPCA should not be interpreted to preempt the federal common law of nuisance.

Counsel for Petitioners
Milton B. Conford
Wilentz, Goldman & Spitzer
900 Rt. 9, P.O. Box 10, Woodbridge NJ 07095
(201) 636-8000

Stephen J. Moses, Menelaos W. Toskos
One Essex St., Hackensack NJ 07601
(201) 343-6612

Wade H. McCree Jr., Solicitor General
Department of Justice, Washington DC 20530
(202) 633-2201

Angus C. Macbeth
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2744

Counsel for Respondents
Robert B. Corbin, Phillip A. Ryan, Edward A. German, Dean F. Murtagh
German, Gallagher & Murtagh
Suite 3100, 1818 Market St., Philadelphia PA 19103
(215) 563-1000