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Illinois v. Milwaukee, City of

ELR Citation: 14 ELR 20359
Nos. Nos. 77-2246, 81-2236, 731 F.2d 403/20 ERC 1801/(7th Cir., 03/27/1984) On remand

The court rules that in cases of interstate water pollution, the Federal Water Pollution Control Act (FWPCA) preempts state statutory and common law absent an express provision to the contrary. Consolidated cases are before the court, one on remand from the Supreme Court, Milwaukee v. Illinois, 11 ELR 20406, and two on interlocutory appeal. All are brought by either a state or citizen of one state against municipal corporations in another state and seek to enjoin defendants' sewage treatment operation, which is allegedly causing water pollution in neighboring states.

The court first expresses uncertainty as to its jurisdiction to consider the state-law claims in the remanded case, but holds that it does have jurisdiction to consider similar state-law claims in the two other cases. It holds that although the district court dismissed the federal common-law nuisance claims following the Supreme Court decision in the remanded case, the federal question claims were substantial when the cases were filed and thus the court properly asserted pendent jurisdiction over the state claims. The court notes that diversity was an additional basis for jurisdiction in the citizen suit. Next, the court rejects appellants' argument that the FWPCA preempted only federal common law and left state common law intact. Disagreeing with the district court, the court holds that interstate water pollution disputes raise the same federal questions as interstate apportionment of boundaries and water rights. Resolution of water pollution disputes necessitates the equitable interstate apportionment of water resources among competing water users and thus is clearly a matter of federal interest. Therefore, federal law controls and since the FWPCA preempted federal common law, the FWPCA governs interstate water pollution disputes except to the extent that it authorizes resort to state law. The court then finds that as part of the FWPCA comprehensive scheme for eliminating water pollution, a state is given the right to notice, hearing, and comment on a permit issuance in another state that may affect waters within the first state's boundaries. But the court holds that the savings clauses of §§505(e) and 510 alone do not empower a state to impose or enforce state effluent standards stricter than federal standards upon dischargers located in another state. It holds that these savings clauses preserve only the right of a state to impose stricter than federal standards upon sources located within its boundaries. Having found no basis for the state-law claims, the court remands all the cases for dismissal. It holds that an additional ground for dismissal of the suit brought in nuisance by the citizen is that he failed to allege harm of a kind different from that suffered by the general public.

[Previous decisions are published at 8 ELR 20503, 9 ELR 20347, 11 ELR 20406, and 12 ELR 20128 — Ed.]

Counsel for Plaintiffs-Appellees
Allen S. Lavin
Law Dep't, Metropolitan Sanitary District of Greater Chicago
100 E. Erie St., Chicago IL 60611
(312) 751-5672

Joseph V. Karaganis
Karaganis, Gail & White
150 N. Wacker Dr., Suite 2500, Chicago IL 60606
(312) 782-1905

Counsel for Plaintiff-Intervenor
Frank J. Kelley, Attorney General; Stewart Freeman, Thomas Emery
Law Bldg., 7th Floor, Lansing MI 48913
(517) 373-1110