Requiem for the Federal Common Law of Nuisance

Over the last two years the federal common law of nuisance has been described in these pages as a "potent legal tool"¹ the significance of which, due to its "revolutionary growth,"² could foreseeably rival the citizen suit provisions in the major federal environmental statutes.³ These observations were not hyperbole. With only scant precedential or legislative support, the Seventh and Third Circuits had boldly expanded the scope of the doctrine to create a cause of action affording judicial relief in an unprecedented number of water pollution contexts. Dicta in these and other decisions suggested that air pollution controversies would be equally appropriate for resolution under the common law,⁴ and that no other area of environmental pollution lay beyond the scope of the doctrine. Only the earlier and often distinguished of this immature line of cases suggested significant limits on the reach of the federal common law of nuisance.⁵

Although articulated judicial limits on the scope of the doctrine could have been expected as the cases proliferated, the opportunity never arose. The federal common law of nuisance met an early demise near the end of the Supreme Court's 1981 Term. In City of Milwaukee v. Illinois⁶ the Court ruled that the federal courts had erred in relying on federal common law as authority for ordering the city to abate its discharges of sewage into Lake Michigan. Congress, the High Court explained, by creating within the Federal Water Pollution Control Act (FWPCA) a "comprehensive" regulatory system applicable to such discharges, has occupied the field to an extent that the federal courts are powerless to develop separate, not to mention stricter, substantive legal requirements. In Middlesex County Sewerage Authority v. National Sea Clammers Association⁷ this ruling was extended. In that decision the Court declared that in the area of water polution generally there is simply no federal common law.⁸

These cases apparently overrule the wave of water pollution cases that has recently been decided under federal common law. They also cast a dark shadow over the scores of lawsuits that have been filed by the federal government to clean up abandoned hazardous waste dumpsites, and may well leave no room for common law actions involving air pollution or any other category of environmental pollution that has been addressed by "comprehensive" federal legislation.

Background

The roots of the federal common law of nuisance reach back to the first decade of this century, when the Supreme Court for the first time acknowledged the jurisdiction of the federal courts to entertain cases brought by states to abate pollution that has migrated across their borders. Missouri v. Illinois⁹ concerned interstate water pollution; Georgia v. Tennessee Copper Co.¹⁰ dealt with interstate air pollution. In both cases the Court resolved the substantive legal issues not by reference to state law or federal legislation, but on the basis of rules borrowed from water apportionment cases and "principles of federalism."¹¹

The "quasi-sovereign" right to be free from external environmental impairment which was recognized in those cases was first placed under the rubric of "federal common law" in 1971 by the Tenth Circuit in Texas v. Pankey,¹² which involved the State of Texas' claim for relief from agricultural pesticide runoff from New Mexico farms. The court noted that while the state had a demonstrated right to be free from such nuisances, the law recognized no applicable statutory remedy. It thus declared that an appropriate cause of action should be made available under common law, arguing that

[u]ntil the field has been made the subject of comprehensive legislation or authorized administrative standards, only a federal common law basis can provide an adequate means for dealing with such a claim.¹³

The next year, in Illinois v. City of Milwaukee¹⁴ the Supreme Court affirmed the Tenth Circuit's christening of the federal common law of nuisance, and etched the doctrine in what appeared to be durable constitutional stone:

When we deal with air or water in their ambient or interstate aspects, there is a federal common law.¹⁵

However, it went on to note that

[i]t may happen that new federal laws and new federal regulations may in time preempt the federal common law of nuisance.¹⁶

[11 ELR 10192]

Although fully cognizant of the range of existing federal laws aimed at water pollution, it noted that the remedy sought in that case was "not within the precise scope of the remedies prescribed by Congress"¹⁷ and thus should be prescribed judicially. The implication was that where interstices exist within the corpus of statutory law, the common law ensures that federally-recognized rights are in fact endorceable. The Court had no occasion to explore the relevance of the FWPCA Amendments of 1972,¹⁸ which were not enacted until several months later.

In the 1972 amendments Congress recognized that its previous efforts in the area of water quality protection had failed and that an entirely new and different approach was necessary. It chose to prohibit every point source discharge unless covered by a permit issued under the Act. Permitted sources were required to treat their effluents with control technology designed to make all of the nation's waters "swimmable and fishable" by 1983.¹⁹ From all outward appearances, it seems Congress expected that the new law would prevent or at least redress every particular instance of pollution of any navigable water.

Following Illinois, but before passage of the 1972 amendments, the United States filed a number of common law actions against dischargers. Once the Act had been amended, however, the defendants invariably moved to dismiss on the ground that the common lawhad been preempted legislatively. The district courts disagreed unanimously and allowed the cases to proceed on the merits.²⁰ On remand in Illinois, the district court rejected a similar motion,²¹ inferring from the amendments a congressional intent to preserve preexisting common law remedies.

With this preemption issue all but settled,²² roughly a dozen common law actions wound their way through the courts. Since these cases presented the courts with a tabula rasa, it is not surprising that the substantive interpretations which resulted were often inconsistent and in some cases flatly contradictory.²³ Nevertheless, in a piecemeal fashion the doctrine began to assume a considerable stature, one which probably exceeded even the expectations of Justice Douglas, author of Illinois. Applying the more liberal decisions of some courts without regard to the contrary views of others, federal common law nuisance suits could be maintained by private parties (rather than state sovereigns)²⁴ to obtain damages²⁵ for pollution of any navigable (rather than interstate) body of water.²⁶

The direction of this body of precedent could have been reversed easily by the Supreme Court when it received a certiorari petition by the losing party in one case that had extended the doctrine significantly, but it declined to do so.²⁷ There was thus some basis, albeit tenuous, for thinking that the Court viewed these developments as being consistent with the mandate of Illinois as well as the FWPCA. Further momentum was added to the doctrine in late 1979, when the Department of Justice and the Environmental Protection Agency (EPA) cmmenced a campaign, consisting of some 60 lawsuits, against the owners of hazardous waste dumps.²⁸ These complaints relied heavily on common law nuisance claims, supplemented by allegations of statutory violations.

Meanwhile, on appeal of the district court's ruling in Illinois, the Seventh Circuit was presented with yet another preemption argument. Appellants had argued that the FWPCA on its face preempted the common law and that, even if it didn't, compliance with a discharge permit issued under the Act constituted per se compliance with common law requirements. Judge Tone concluded²⁹ that a rejection of these positions was compelled by the "savings clause" in the Act's citizen suit provision, § 505(e).³⁰ Whereas § 505(a) authorizes suits against the Administrator or dischargers to enforce the Act's requirements, § 505(e) preserves the right of any litigant to seek "any other relief" to which he or she may be entitled "under any state or common law."³¹ Although this language does not specifically include federal common law, such an explicit reference was unnecessary in Judge Tone's view.³²

While the Act aims generally at the establishment of nationally uniform effluent reduction requirements, both the formulas prescribed for setting standards and the [11 ELR 10193] existence of variance provisions³³ undercut the goal of uniformity. For this reason Judge Tone was unimpressed by the argument that the issuance of common law remedies would subvert the purposes of the Act.³⁴ In a final effort to cover all bases, Judge Tone pointed to § 511(a), which states that the Act is not to be construed to limit the authority of "any officer or agency of the United States under any other law or regulation not inconsistent" with the FWPCA.³⁵ This language, he concluded, could be read to preserve the authority of federal judges to enforce the common law.

In National Sea Clammers Association v. City of New York³⁶ the Third Circuit also addressed the preemptive effect of the FWPCA upon the common law of nuisance. Regrettably, the court incorrectly read the Supreme Court's opinion in Illinois to have held that the 1977 amendments had no such preemptive effect.³⁷ In fact, the Court had not considered the question since the amendments had yet to be passed when the opinion was released. The Third Circuit's mistaken reading of Illinois casts substantial doubt on its ultimate resolution of this issue. The court did, however, go on to trace and subscribe to the reasoning of the Seventh Circuit in Illinois as further support for the validity of appellants' common law cause of action. Both rulings were presented to the Supreme Court for review.

High Court Declares Common Law Preempted

City of Milwaukee

Justice Rehnquist, writing on behalf of six members of the Court, prefaced its reversal³⁸ of the Seventh Circuit's opinion by distinguishing the issue of preemption in the federal common law context from the issue of preemption which frequently arises when federal and state laws are alleged to conflict. In the latter instance, the correct approach begins with a presumption that the federal statute in question does not preempt the state statute unless this has been shown to be the clear intent of Congress. However, where a federal statute is said to conflict with rules developed by federal judges, the presumption against preemption is replaced by a recognition that the power of the federal courts is limited under the Constitution and generally does not include the power to develop substantive law. In effect, there is a presumption against the validity of federal common law. Only in "restricted instances"³⁹ and as a "necessary expedient"⁴⁰ should the court enter territory where Congress has walked.

Turning to the general nature of the FWPCA, Justice Rehnquist noted that it is indeed the kind of "comprehensive" legislation that Texas v. Pankey⁴¹ and Illinois had suggested might come along and supplant the common law. The FWPCA brought every point source in the nation within its purview and had been described repeatedly in the legislative history as the most comprehensive system every developed for controlling water pollution. In addition, the Act vests in EPA and state water pollution control agencies the authority to apply their expertise to the complex technical decisions that are necessary when setting pollution standards and issuing discharge permits. The district court's candid admission of difficulty with such issues demonstrated to the Court the inappropriateness of allowing federal judges to second-guess the decisions of the regulators.

Justice Rehnquist emphasized that the specific problem at issue in the case — the discharge of sewage from a municipal treatment works — had been addressed directly in the Act. The discharges from the City of Milwaukee's facilities were subject to generic effluent limitations developed by EPA, and the plants themselves were covered by discharge permits issued by the state.

It would be quite inconsistent with this scheme if federal courts were in effect to "write their own ticket" under the guise of federal common law after permits have already been issued and permittees have been planning and operating in reliance on them.⁴²

Nor could the Court accept the Seventh Circuit's reasoning that the savings clause in § 505 was intended to preserve federal common law remedies. "Even indulging the unlikely assumption that the reference to 'common law' in § 505(e) includes the limited federal common law,"⁴³ Justice Rehnquist pointed out, the savings clause on its face appears to apply only to § 505, not to the entire Act. In other words, while Congress intended that the creation of the citizen suit provision not be interpreted to preclude other remedies, this is essentially irrelevant to the question whether the Act, as a whole, constitutes a legislative invasion of the field leaving no room for preexisting common law.

Justice Blackmun, joined in dissent⁴⁴ by Justices Marshall and Stevens, found almost nothing in the opinion of the majority with which he could agree. The federal common law of nuisance, he noted, derives from several fundamental sources which cannot be disregarded casually. First, where legal controversies arise among the states, the Constitution vests in the federal courts the power and obligation to resolve them. Second, the states have a long-recognized right to be free from unreasonable impairment of their natural resources. Their entry into the Union made the forcible abatement of such nuisances impossible, but created an avenue of recourse in the federal courts. Third, where federal law recognizes certain rights as entitled to protection but fails, even in an intensively regulated area, to protect them, federal common law serves to fill the interstices in the statutory framework. In [11 ELR 10194] the dissenters' view the 1972 amendments were intended not to abrogate these principles but to preserve them.

In addition, the dissenters construed the 1972 amendments to the FWPCA to respect Illinois rather than to overrule it. Indeed, opined Justice Blackmun, the savings clause in § 505(e) reveals Congress' intent to preserve federal as well as state common law. The majority's tortured reading of the savings clause to apply only to § 505 rather than the Act as a whole was invalid, in his view.

The Court thus reads § 505(e) as though Congress had said that "'this section' does not take away any pre-existing remedies, but the remainder of the statute does."⁴⁵

The dissenters saw little significance in the fact that the FWPCA had been characterized in the legislative history as "comprehensive."

There is nothing new about federal law in this area being characterized by its proponents as comprehensive. Similar claims were made in advancing the legislation in place when Illinois v. Milwaukee was decided. See, e.g., S. REP. No. 462, 80th Cong., 1st Sess., 1 (1947) ("The purpose of the bill (S. 418) is to provide a comprehensive program for preventing, abating and controlling water pollution …"); 94 CONG. REC. 8195 (1948) ("The bill provides that the Surgeon General shall encourage a comprehensive program for the control of stream pollution between the States and to secure their cooperation in combating this evil." (Rep. Auchincloss)) That a different Congress, 24 years later, deemed this legislation inadequate [see 11 ELR at 20409, n.10], carries no more significance than the post-mortems one may expect from the 104th Congress concerning the 1972 Act.⁴⁶

And even if it were conceded that the Act is "comprehensive," they argued, this does not mean that it was intended to be exclusive. That fact that the Act calls for the imposition of stricter controls by both state and federal authorities demonstrated to them that the common law had similarly been reserved a role in the overall scheme.

Middlesex County

Two months later the Court delivered the final blow to the federal common law of nuisance. In Middlesex County Sewerage Authority v. National Sea Clammers Association⁴⁷ respondents had invoked the common law as a ground for recouping compensation for damages to oceanic shellfish beds allegedly caused by the discharge of municipal sewage in the area around New York Harbor. Reversing the district court's dismissal of the claim, the Third Circuit had ruled that even though the alleged victims were private parties, the common law of nuisance potentially provided them with a remedy. This represented a lamdmark decision of sorts, as it marked the first decision extending this cause of action to a litigant other than a governmental entity.⁴⁸

For much of the 1981 Term, Court watchers had awaited the outcome of this case anixously. While City of Milwaukee involved what appeared to be the relatively narrow issue of preemption, Middlesex County presented the Court with its first real opportunity since Illinois to comment on the contous of the doctrine as it had been molded in roughly a score of lower court decisions. Once City of Milwaukee was handed down, however, speculation over Middlesex County centered on the question whether the federal common law of nuisance would survive at all. The Court's answer was no.

Those who expected an explanation for this conclusion were disappointed, as Justice Powell evidently found it unnecessary to elaborate on City of Milwaukee. He wrote simply that

we need not decide whether a cause of action may be brought under federal common law by a private plaintiffs [sic], seeking damages. The Court has now held that the federal common law of nuisance in the area of water pollution is entirely preempted by the more comprehensive scope of the FWPCA….

This decision disposes entirely of respondents' federal common law claims…. To the extent that this case involves ocean waters not covered by the FWPCA, and regulated under the MPRSA, we see no cause for different treatment of the preemption question.⁴⁹

Critique: Much Ado About Nothing?

Perhaps the saddest circumstance of the short history of the federal common law of nuisance is the fact that the FWPCA Amendments of 1972 were enacted six months after, rather than six months before the decision in Illinois. Had the Supreme Court been given an opportunity to juxtapose the new legislative regime against the newly articulated concept of the common law it might well have averted a decade of judicial struggling with this complex and difficult doctrine. Unfortunately, the Court was not presented with an opportunity to consider the issue until seven years later, and even then it declined, at least for a while, to settle it.⁵⁰

With respect to the result in City of Milwaukee, the Court's conclusion reveals a healthy respect for the now mature NPDES permit program, and is bound to relieve the uncertainty among regulators and regulatees that was engendered by the Seventh Circuit's opinion. What would be the legal or practical significance of such a permit if, after it had been issued, upheld in court, and the permittee had brought the source into compliance, a common law action could be brought in federal court seeking damages as well as injunctive relief on the ground that the discharge constitutes a nuisance? This would inevitably introduce a degree of havoc into the permitting process and require judicial second-guessing of administrative determinations in a manner that was probably never intended by Congress. Stated differently, it seems reasonable to infer from the FWPCA an implicit congressional judgment that the powers of the courts should yield to those of the agencies in determining the discharge levels allowed of regulated sources. This is particularly the case given what we now know, after City of Milwaukee, to be the limited authority of the courts to develop substantive common law.

On the other hand, few would disagree with the proposition that the states should be able to set water quality goals higher than those of neighboring states.⁵¹ Nor does it seem unreasonable to assert that when a state's environmental [11 ELR 10195] standards have been materially violated by pollution emanating outside its borders, the "federal compact" into which the states are joined should provide for the resolution of the dispute in federal court, regardless of whether federal legislation provides some, but only partial relief. This position, which was espoused by the dissenters in City of Milwaukee, seems as unassailable as the majority's.

In Middlesex County, though, the majority leapt from the unobjectionable result in City of Milwaukee to a much broader holding lacking the logical and legal support of the former. Acknowledging no difference between the competing policies at stake in the two cases, the Court simply remarked that what was preempted in City of Milwaukee was, therefore, preempted in Midlesex County. The Court failed to realize, however, that the arguments it mounted effectively in City of Milwaukee were less apposite to Middlesex County. Had the parties to Middlesex County been asked to address the issues after, and in light of City of Milwaukee, illumination would certainly have resulted, but in fact the former case was briefed and argued well before the decision in the latter.

The ruling that common law actions are precluded by the "comprehensiveness" of the FWPCA makes more sense where, as in City of Milwaukee, the discharger is operating wholly in compliance with regulatory requirements.⁵² But where a claimant has alleged violations of the statute by both the dischargers and the regulators, as in Middlesex County, the need to prevent judicial second-guessing of those administrators becomes less compelling.⁵³ Moreover, to the extent that the statute is less than fully comprehensive, the common law could paly a useful role in protecting state environmental standards. For example, the FWPCA does not create a cause of action for damages, although Congress has expresed an intent not to preclude such actions.⁵⁴ It is a strained reading of the Act to infer from it a prohibition against state recovery of damages for the destruction of natural resources due to out-of-state pollution.

Implications

The ruling in Middlesex County that the federal common law of nuisance has been entirely preempted in the area of water pollution leads naturally to the question of whether similar rulings can be expected in the areas of air pollution, hazardous waste, or other environmental contexts. An affirmative answer seems inescapable in the case of air pollution; hazardous waste seems to present a closer question. In areas that are less pervasively regulated on the federal level, e.g., noise, a common law cause of action has arguably been preserved. However, in such areas the federal common law has yet to gain a foothold.

Though Illinois concerned water pollution, dicta within that opinion set a firm foundation for extending the federal common law of nuisance to air pollution as well.⁵⁵ And in another case decided the same day, the Court stated directly that the scope of the newly-articulated doctrine embraced air emissions from automobiles.⁵⁶ Yet for some reason air pollution has not seen anywhere near the volume of federal nuisance litigation that has been brought over water pollution.⁵⁷

Under City of Milwaukee and Middlesex County the crucial inquiry is whether the Clean Air Act is sufficiently "comprehensive" to supplant the common law. The Court evidently viewed the FWPCA as comprehensive largely because it covers all discharges from every point source in the country.⁵⁸ Since the Clean Air Act generally applies, however, to major sources only, an argument could be made that this is a less comprehensive scheme. On the other hand, the Act charges EPA with the responsibility to administer its regulatory program toward the goal of achieving "healthy air." Moreover, Congress inserted into the Act a provision designed expressly to afford a mechanism to resolve disputes over emissions that cross state boundaries.⁵⁹ In this light, the Clean Air Act seems even more comprehensive than the FWPCA.

In New England Legal Foundation v. Costle the district court sidestepped the question of whether federal common law applies to air pollution, ruling that even if it does, the court would not exercise its power to apply an equitable remedy to a pollution source whose emissions had been specifically approved by EPA.⁶⁰ This is a compromise position that seems to acknowledge both the existence of and the disadvantages of the federal common [11 ELR 10196] law. Yet even if it were to attain wide acceptance, an unlikely prospect in light of City of Milwaukee, it would effectively spell the end of the common law of nuisance with respect to air, since sources small enough to escape Clean Air Act regulation will be difficult to link with pollution problems large enough to constitute common law nuisances.

The Second Circuit's decision on appeal in New England Legal Foundation⁶¹ is apparently the first to follow the latest Supreme Court opinions. The court's conclusion wasthat since the emissions in dispute had been federally approved, they were exempt, as a matter of law, from common law claims. The court's explanation indicates that a similar exemption would apply to all sources subject to Clean Air Act state implementation plans, even where the challenged emissions exceed specified limits. Viewing this decision as a harbinger, it appears that air pollution is no more amenable to federal common law than is water pollution.

The current status of federal common law as applied to hazardous waste disposal presents an extremely knotty legal issue. While the Resource Conservation and Recovery Act (RCRA)⁶² imposes a uniquely ambitious regulatory program upon the transport, handling, and disposal of hazardous waste, it does not require permits for discharges and thus may be less "comprehensive" than the FWPCA. Section 7003 of RCRA,⁶³ the "imminent hazards" provision, authorizes the United States to bring actions against the owners of hazardous waste dumpsites. But this provision can hardly be described as comprehensive, since it addresses only a select group of acute environmental hazards, most of which were created before the Act even came into existence.

Hazardous waste disposal sites usually threaten bodies of water, an area to which the federal common law no longer applies under Middlesex County. However, Congress has specifically stated that it intended § 7003 to be a codification of federal common law principles.⁶⁴ This has been judicially interpreted to mean that § 7003 merely authorizes the filing of lawsuits, while substantive liability is to be determined according to federal common law, to which hazardous waste disposers have always been subject.⁶⁵ How, then, can it be said that RCRA has preempted the common law?

The outcome of the dozens of federal lawsuits now pending against owners of hazardous waste dumpsites may hinge on the interplay between RCRA and federal common law. In at least one of these cases the court has, since Middlesex County, reversed itself to rule that the United States may not invoke federal common law under § 7003, although its reasoning was extremely unsophisticated.⁶⁶ A more deliberate and penetrating analysis is necessary, and may reveal that there are still surviving remnants of the federal common law of nuisance.

Conclusion

Regulatory agencies as well as the public have only recently come to realize the interstate, indeed the international scope of many environmental problems. At the same time they have learned that existing federal legislation, which was enacted before the significance of the phenomenon was widely appreciated, is for the most part not designed to address transboundary pollution adequately. The federal common law of nuisance, though in many respects an ad hoc, crude, and inefficient tool, held some promise as an interstitial remedy for many instances of pollution that were not remediable under statutory law. Ironically, as Congress strove to achieve greater control over pollution generally, it implicitly preempted the power of the courts to resolve those disputes which it did not address.

In the wake of City of Milwaukee and Middlesex County, there remains some doubt as to whether the federal common law has been displaced quite as completely as it first appeared, particularly with respect to hazardous waste issues arising under RCRA. It is all but certain, on the other hand, that the legal foundation of many pending common law cases has been swept away. From here on, the Court has made clear, it is for Congress and not the courts to develop substantive rules of environmental law.

1. Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168, 10173 (1979).

2. Comment, Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II, 10 ELR 10101 (1980).

3. Id. at 10101.

4. See text at notes 55-57, infra.

5. See authorities cited at note 23, infra.

6. 49 U.S.L.W. 4455, 11 ELR 20406 (Apr. 28, 1981).

7. 49 U.S.L.W. 4783, 11 ELR 20684 (June 25, 1981).

8. In the same case the Court dealt another setback to similarly situated litigants, stating that there is no implied right of action under the FWPCA. While this ruling is beyond the scope of this Comment, related issues are addressed in Comment, Supreme Court Finds No Implied Right of Action Under § 10 of the Rivers and Harbors Act, 11 ELR 10098 (May 1981).

9. 200 U.S. 496 (1906).

10. 206 U.S. 230 (1907).

11. See generally Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168, 10170 (1979).

12. 441 F.2d 236, 1 ELR 20089 (10th Cir. 1971).

13. 441 F.2d at 241, 1 ELR at 20090.

14. 406 U.S. 91, 2 ELR 20201 (1972).

15. 406 U.S. at 103, 2 ELR at 20204.

16. 406 U.S. at 107, 2 ELR at 20205.

17. 406 U.S. at 103, 2 ELR at 20203.

18. 33 U.S.C. § 1251 et seq., ELR STAT. & REG. 42101.

19. FWPCA § 101(a)(2), 33 U.S.C. § 125(a)(2), ELR STAT. & REG. 42105.

20. See, e.g., United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp. 110, 4 ELR 20071 (D. Vt. 1973); United States v. Lindsay, 357 F. Supp. 784 (E.D.N.Y. 1973); United States v. United States Steel Corp. 356 F. Supp. 556, 3 ELR 20204 (N.D. Ill. 1973).

21. Illinois v. City of Milwaukee, 366 F. Supp. 298, 4 ELR 20045 (N.D. Ill. 1973).

22. In Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976), the Fourth Circuit stopped short of asserting that the federal common law had been preempted by the FWPCA. However, it refused to apply the doctrine to the offending sewage treatment plant in that case, stating that

it would be an anomaly to hold that there was a body of federal common law which proscribes conduct which the 1972 Act of Congress legitimates.

539 F.2d at 1009, 6 ELR at 20705.

23. See Comment, Seventh Circuit Interprets Federal Common Laws of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168, 10171 nn.35, 36, and accompanying text.

24. National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980).

25. City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979).

26. Illinois v. Outboard Marine Corp., 619 F.2d 623, 10 ELR 20323 (7th Cir. 1980).

27. Louisville and Jefferson County Metropolitan Sewer District v. City of Evansville, No. 79-726, cert. denied, 49 U.S.L.W. 3436 (Jan. 7, 1980).

28. See Comment, Hazardous Waste: EPA, Justice Invoke Emergency Authority, Common Law in Litigation Campaign Against Dump Sites, 10 ELR 10034 (1980).

29. Illinois v. City of Milwaukee, 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979).

30. 33 U.S.C. § 1365(e), ELR STAT. & REG. 42147.

31. Id.

32. Moreover, Judge Tone noted, the citizen suit provision embodies Congress' policy of encouraging citizen involvement in pollution control through litigation in the federal courts. 599 F.2d at 161, 9 ELR at 20352.

33. See generally Comment, National Crushed Stone: EPA Not required to Grant "Economic Hardship" Variances From 1977 Effluent Limitations, 10 ELR 10215 (1980).

34. Indeed, other courts have seen federal common law as a means of achieving uniform water pollution rules. See National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1233, 10 ELR 20155, 20160-61 (3d Cir. 1980).

35. 33 U.S.C. § 1371(a), ELR STAT. & REG. 42149.

36. 616 F.2d 1222, 10 ELR 20155 (3d Cir. 1980).

37. 616 F.2d at 1233 n.33, 10 ELR at 20160 n.33, and accompany text.

38. City of Milwaukee v. Illinois, 49 U.S.L.W. 4455, 11 ELR 20406 (Apr. 28, 1981).

39. 11 ELR at 20408 (citations omitted).

40. Id.

41. See note 12, supra.

42. 11 ELR at 20412.

43. Id. (emphasis in original).

44. 11 ELR at 20413.

45. 11 ELR at 20416.

46. 11 ELR at 20416 n.13.

47. 49 U.S.L.W. 4783, 11 ELR 20684 (June 25, 1981).

48. See Comment, Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II, 10 ELR 10101, 10102-03 (1980).

49. 11 ELR at 20689.

50. See text at note 27, supra.

51. This principle is codified in the FWPCA at § 510, 33 U.S.C. § 1370, ELR STAT. & REG. 42149.

52. Although the Supreme Court observed that violations of Milwaukee's NPDES permit had occurred, such problems had apparently been solved by the time the case reached the Seventh Circuit. See Brief for Defendant-Appellant City of Milwaukee at 12, Illinois v. City of Milwaukee, 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979).

53. Where a disputed source of pollution is operating within the parameters of a permit issued under the Clean Air or Water Acts, it is not uncommon for courts to decline to exercise their equitable discretion to declare the source a nuisance. See, e.g., Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976); New England Legal Foundation v. Costle, 475 F. Supp. 425, 10 ELR 20438, 20445-46 (D. Conn. 1979).

54. See e.g., S. REP. No. 414, 92d Sess., 1st Sess. 81 (1971), reprinted in 2 A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, 93D CONG., 1ST SESS. 1499 (Comm. Print 1973).

55. See note 15, supra and accompanying text.

56. Washington v. General Motors Corp., 406 U.S. 109, 2 ELR 20183 (1972).

57. In additionto the General Motors case, discussed supra, and the New England Legal Foundation case, discussed infra, some of the few other cases to weigh the applicability of federal common law to air emissions include: United States v. Atlantic Richfield Co., 478 F. Supp. 1215, 10 ELR 20089 (D. Mont. 1979) (federal common law of trespass); United States v. Reserve Mining Co., 380 F. Supp. 11, 4 ELR 20573 (D. Minn.), injunction stayed, 498 F.2d 1073, 4 ELR 20598 (8th Cir.), modified on other grounds and remanded sub nom. Reserve Mining Co. v. EPA, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1974). See also Board of Supervisors of Fairfax Cty. v. United States, 408 F. Supp. 556 (E.D. Va. 1976) (denial of motion to dismiss for failure to state a claim on which relief can be granted), appeal dismissed, 551 F.2d 305 (4th Cir. 1977).

58. 11 ELR at 20409.

59. Section 126(b) of the Clean Air Act, 42 U.S.C. 7426(b), ELR STAT. & REG. 42229, authorizes the states to petition the EPA Administrator for relief from air emissions emanating in other states. Cf. § 110(a)(2)(E), 42 U.S.C. § 7410(a)(2)(E), ELR STAT. & REG. 42212, allowing EPA approval of a state implementation plan only if it provides a means of dealing adequately with interstate pollution.

60. New England Legal Foundation v. Costle, 475 F. Supp. 425, 10 ELR 20438 (D. Conn. 1979).

61. New England Legal Foundation v. Costle, __ F.2d __, 11 ELR 20888 (2d Cir. Aug. 24, 1981).

62. 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

63. 42 U.S.C. § 6973, ELR STAT. & REG. 41922.

64. See S. REP. No. 172, 96th Cong., 2d Sess. 5 (1979), reprinted in [1980] U.S. CODE CONG. & AD. NEWS at 5023. See also REPORT OF THE HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE 31 (Comm. Print 86-IFC-31) (Oct. 1979).

65. United States v. Solvents Recovery Service of New England, 496 F. Supp. 1127, 1133-39, 10 ELR 20796, 20799-801 (D. Conn. 1980).

66. United States v. Kin-Buc, Inc., 11 ELR 20977 (D.N.J. July 28, 1981).