State Law Remedies for Interstate Water Pollution: The Legacy of Illinois v. Milwaukee

Laura H. Kosloff

Editors' Summary: The Second Circuit recently held that the Federal Water Pollution Control Act (FWPCA) preserves state tort remedies in interstate water pollution disputes and makes applicable the law of the state in which the alleged injury took place. As a result, Vermont citizens will have their claims concerning pollution of Lake Champlain by a paper mill located across the lake in New York decided under their own law. In so holding, the Second Circuit expressly took exception to a recent decision of the Seventh Circuit, which held that the law of the polluter's state applied. The Seventh Circuit decision had been the last act in the long-running litigation between Illinois and the city of Milwaukee over contamination of the waters of Lake Michigan by pollution from Milwaukee sewage treatment plants, litigation that had seen both rebirth and reinterment by the Supreme Court of the federal common law of nuisance in interstate water pollution cases. Now the Court will resolve the last lingering issue and the law of interstate water pollution at last will be clear. The author reviews the issues in the case now before the Court and traces their history. She concludes that although the Court could find state tort law barred from the field, it probably will follow the two circuits and hold that the FWPCA preserves state law. Not convinced by either circuit's rationale for its choice of which state's law governs, she reasons that applying the law of the plaintiff's state is the better choice, since it would be consistent with normal choice of laws rule and serve the pollution-elimination goal of the FWPCA.

[16 ELR 10136]

Pending before the Supreme Court is a case with notable lineage that will determine whether there are state common law remedies for damages from interstate water pollution and if so, which state's law is applied. On March 24, 1986 the Court granted certiorari in International Paper Co. v. Ouellette¹ to resolve a split between the Second and Seventh Circuits. The two courts disagreed over whether savings language in the Federal Water Pollution Control Act (FWPCA)² allows residents or governmental units in a state to sue in their own courts and under their own tort law over water pollution originating in another state. Ouellette concerns pollution of Lake Champlain, whose scenic waters are the border between New York and Vermont, by a large paper mill located in New York.

Though the Lake Champlain controversy has raged in and out of court for the better part of two decades, the legal heritage of Ouellette comes from Lake Michigan. Litigation over the effects on Illinois of pollution from Milwaukee sewage treatment plants led to two Supreme Court decisions; first, that state law could not cope with interstate pollution, thus making federal common law remedies necessary;³ and second, that the comprehensive regulatory scheme of the FWPCA supplanted federal common law.⁴ But the FWPCA expressly preserves state law remedies for water pollution.⁵ In Ouellette the Supreme Court will decide whether the Act's savings clauses resurrent state common law remedies for interstate pollution and, if so, whether the law of the polluter's state or the pollution victim's state governs.

In 1981 the Supreme Court cut off the fast-developing doctrine of federal common law of nuisance in City of Milwaukee v. Illinois, (Illinois II),⁶ only nine years after having given the doctrine new life in Illinois v. City of Milwaukee [16 ELR 10137] (Illinois I), an earlier stage of the same litigation.⁷ In Illinois I, the court held that state common law was illsuited to the task of cleaning up interstate water pollution and that the doctrine of federal common law nuisance was the answer. In Illinois II, the Court held that the 1972 amendments to the FWPCA,⁸ enacted into law some six months after its decision in Illinois I, preempted federal common law as a means by which one state could impose more stringent conditions on pollution in an interstate water body than the FWPCA or another state required.⁹ Shortly thereafter, the Court nailed the lid on the coffin in Middlesex County Sewerage Authority v. National Sea Chammers Association,¹⁰ where it held that there is no implied private right of action for damages under the FWPCA in the water pollution context even if there has been a violation of the Act.

Life After Illinois II

Despite its lengthy history, Illinois II did not resolve all the issues raised by Illinois and its residents. On remand from Illinois I, the district court decided for Illinois on federal grounds, but noted that the results would be the same under Illinois' state claims.¹¹ On appeal the Seventh Circuit held, without discussion, that federal law controlled.¹² The Supreme Court, in Illinois II, noted that it was "inconsistent" to apply both federal and state law to the case,¹³ but kept to the issue before it, which was solely whether the 1972 amendments had supplanted federal common law.¹⁴ The Court noted that Illinois had filed a separate petition for certiorari on the state claims¹⁵ — a petition it later denied.¹⁶

The Court's decision in Illinois II was not the last word; Illinois did not give up after the Court's 1981 pronouncement. On remand in the Seventh Circuit, the state argued that it should be allowed to proceed on the basis of state common law claims not addressed by the Supreme Court.¹⁷ In 1984, in Illinois v. City of Milwaukee (Illinois III), the Seventh Circuit ruled that the FWPCA preempted state common law causes of action brought under the law of the injured state.¹⁸ In early 1985, the Supreme Court ended the years of litigation once and for all by denying Illinois' petition for certiorari.¹⁹

Or so it seemed. While Illinois was slugging it out with Wisconsin and getting all the press, other states were also grappling with interstate water pollution issues. Vermont and New York and citizens of both states were locked in equally lengthy and complex litigation over the International Paper Company (IPC) plant's discharges into Lake Champlain.²⁰ In 1981, IPC moved to dismiss the plaintiffs' state common law claims.²¹ The district court denied the motion after the Seventh Circuit's decision in Illinois III,²² and the Second Circuit rapidly affirmed the district court in all relevant respects.²³

With a conflict in the circuits and several unrelated lower court cases making assumptions one way or the other about the applicability of state law,²⁴ the issue had nowhere to [16 ELR 10138] go but the Supreme Court. On March 24, 1986 the Court agreed to hear arguments in the Second Circuit case.²⁵

The Cases Below

The two circuits essentially agreed on the initial legal issues. Both concluded that Illinois I rendered state common law inapplicable to interstate water pollution matters unless Congress decreed otherwise.²⁶ Both agreed that the two savings clauses in the FWPCA preserve state law remedies.²⁷ Section 505(e) provides that by authorizing citizen suits to enforce the effluent limitations imposed on polluters under the Act Congress did not intend to preempt other remedies that citizens might have,²⁸ and § 510 allows states to impose more stringent effluent limitations and other requirements than the Act prescribes.²⁹ What they disagreed on was exactly what remedies were preserved, the Seventh Circuit holding that the savings clauses preserve only the right of a state to impose stricter standards than the federal standards on sources within its boundaries³⁰ and the Second Circuit holding that a state injured by pollution emanating from another state may impose its common law on the dischargers.³¹ The distinctions between the two decisions may be the peg on which the Supreme Court can hang its own holding.³²

Illinois III

On remand from Illinois II, the Seventh Circuit expressed doubt as to whether it could consider Illinois' state law claims,³³ but noted that the state claims in two cases consolidated with the Illinois litigation were properly before the court.³⁴ The issue before the court was whether the elimination of federal common law reactivated state common law or left the FWPCA as the only applicable body of law.

Illinois argued that until the Supreme Court's decision in Illinois I, state law had ruled. Under Illinois II federal law no longer applies; therefore it follows that state law is once again in effect, unless Congress has expressly precluded the application of state law in this area. According to Illinois, Congress had not done so.

Milwaukee and the other defendants countered that Illinois II did not overrule Illinois I; the latter opinion merely refined the Court's earlier analysis. The guiding rationale for the 1972 decision was that federal law was required in interstate water pollution disputes, because of the nature of federalism and the need for uniformity in resolving conflicts between states. Since federal law governed interstate water conflicts, the 1981 decision said only that the FWPCA, not federal common law, was the appropriate reference point. In fact, they argued, in Illinois I the Court anticipated the result in Illinois II with its comment that the federal common law doctrine it was articulating might some day be supplanted by the appropriate federal legislation.³⁵

The Seventh Circuit agreed with the defendants. The court first considered why the Illinois I Court deemed federal law necessary, and concluded that rationale is still valid after, and in fact had been reaffirmed by, the Illinois II decision. The court saw three reasons for the necessity of applying federal law: the inadequacy of the pre-1972 FWPCA, the character of the parties as governmental entities, and the federal interest in a uniform rule of decision for interstate water disputes. The last had been an overriding concern to the Court in 1972, and was reemphasized by the Court in 1981. In Illinois I, the Court expressly overruled a year-old decision³⁶ holding that state law of the injured state controlled interstate water pollution disputes; in Illinois II, the Court reiterated that this case had been overruled.³⁷ Moreover, the Court discussed the need for federal law in contexts such as interstate water pollution disputes in a subsequent case.³⁸

The question, then, was the extent of the state law remedies preserved in the savings clauses. The court held that the Act prohibited the application of the law of the injured state in an interstate water pollution dispute; the comprehensive nature of the FWPCA precludes states from adopting stricter standards than the Act except within their own boundaries.³⁹

Ouellette

In 1970, Vermont sued New York and IPC under the Supreme Court's original jurisdiction alleging that discharges from IPC's paper mill into Lake Champlain constituted a nuisance and a trespass. The litigation resulted in two contractual settlement agreements.⁴⁰ Subsequently, [16 ELR 10139] Vermont and Vermont citizens⁴¹ residing near the lake brought suit against IPC under the FWPCA and state common law theories of nuisance and trespass. IPC relied on Illinois III for the proposition that if Congress intended to allow the application of any state common law in interstate water pollution cases, it would be that of the state in which the discharge occurred.

After summarizing the history of this case and the Illinois litigation, the district court⁴² jumped straight to what it saw as the heart of the matter: whether the 1972 FWPCA amendments authorized use of the common law of the injured state in an interstate water pollution dispute.⁴³ The court agreed with the Seventh Circuit that resolution of interstate water pollution disputes required resort to federal law; where it veered away was in its analysis of congressional intent. Finding the Seventh Circuit's reasoning somewhat strained, the Ouellette court held that Congress did preserve actions under the law of the injured state in §§ 505(e) and 510.

The Seventh Circuit focused principally on the strength of the federal interest in interstate pollution disputes and on the problems that could result from the application of diverse state law;⁴⁴ the Ouellette court tried to decide whether Congress, when it wrote §§ 505(e) and 510 in 1972, had state or federal common law in mind as the saved remedies. Although the 1972 amendments to the FWPCA did not become law until six months after the Supreme Court announced the federal common law doctrine, debates in the House and Senate and filing of committee reports took place before the Court acted, although the conference committee met after Illinois I came down.⁴⁵

In this light, to Ouellette court found the Seventh Circuit's reasoning to be a post hoc rationalization; if the federal common law doctrine had not been articulated at the time Congress essentially wrote the revamped FWPCA, then §§ 505(e) and 510 could not refer to anything but state common law. Furthermore, tort law principles at the time allowed for liability to be imposed under the laws of the state in which an injury occurred. The court observed that the Supreme Court itself recognized this in Ohio v. Wyandotte Chemicals Corp in 1971.⁴⁶ Although the Court expressly overruled this case in Illinois I a year later,⁴⁷ Congress had to have had these tort principles in mind when it contemplated the 1972 amendments.

In summary, the two circuits looked in opposite directions for their answers to the same question. The Seventh Circuit thought that there ought to be a federal remedy and that Congress preserved state remedies only within the context of the FWPCA; therefore, the state remedies allowed should be those most consistent with the Act, those the polluting state would impose. The Second Circuit concluded that whatever state remedies Congress thought it was preserving in 1972 should be recognized today, and that these remedies included the option of suing under the law of the injured state.

The Issues Before the Supreme Court

With the Second Circuit decision, the Supreme Court faces a conflict in the circuits on the applicability of state common law to interstate water pollution disputes. The conflict may not be easy to resolve. If the Court follows the path charted by the circuits, it will conclude that state law is not appropriate in interstate water pollution cases and focus on the savings clauses of the FWPCA and the murky question of what Congress intended to save.

Does Federal or State Law Govern?

The first question the Supreme Court will have to face in Ouellette is the general applicability of state common law in interstate water pollution disputes in the aftermath of its two Illinois decisions. Illinois I decided that federal common law, not state common law should govern. In Illinois II the Court held that the FWPCA's comprehensive regulatory scheme left no room for federal common law nuisance actions to impose stricter discharger standards than the statute required. In Sea Clammers, the Court held that the FWPCA preempted any federal common law right to seek damages for interstate water pollution and did not imply a statutory right to seek damages. What the Court has never decided is whether the right to use state common law to seek damages for injuries suffered from interstate pollution sanctioned under the FWPCA survived all this shuffling of the law.

There are strong indications in the earlier decisions that state tort law is inapplicable. The reasons why the Illinois I Court looked to federal common law argue against preserving state law regardless of the federal statutory scheme: interstate water pollution implicates the strong federal interest in interstate waters and can pit sovereign states and their citizens against each other. In interstate water matters, federal law has often shouldered aside state law.⁴⁸ In [16 ELR 10140] a sense, Illinois I was simply an express recognition by the Supreme Court that this well-established principle applied in the interstate water pollution context. The Court has clearly indicated in the past that when such overriding federal interests collide with state authority to regulate for the health and welfare of its citizens, the state must give way.⁴⁹ In Illinois II, the Court noted that in Illinois I it "found it necessary" to overrule a case directly on the state law issue,⁵⁰ and evidenced no intent to overrule its provious overruling. A subsequent Supreme Court decision, relied on by the Seventh Circuit, has reemphasized the primacy of federal law in the interstate water pollution context.⁵¹

There is no indication that in Illinois II the Court intended to change the general principle that state law should not be applicable. However, the Court did not rule on the issue because it was not called upon to do so.⁵² The Court did not address whether in the interstate water pollution context, a suit for damages to private parties should be treated differently from a suit by a state to enforce stricter regulatory standards. The Court did distinguish between federal common law and state common law in § 505(e)'s preservation of rights under "any statute or common law."⁵³ On the other hand, it did not debate the dissent's concern that by eliminating federal common law in an appropriate field, it was encouraging the use of state law if the federal statutory structure was incomplete,⁵⁴ and did distinguish between its willingness to displace federal common law in the face of subsequent federal statutory occupation of the field and its reluctance to displace state law with federal law.⁵⁵ On the basis of these considerations, both circuits held that state common law had not reoccupied the field in the aftermath of Illinois II. That is just the first step however, because it leaves the question of whether the FWPCA expressly authorizes reference to state law in such disputes.

What Did Congress Intend to Preserve?

Whether the FWPCA reactivates state tort law depends on the interpretation of the savings provisions in §§ 505(e) and 510. The savings clauses by their language preserve state law tort remedies.⁵⁶ They do not, however, clearly state in so many words exactly what remedies they are saving. The Seventh Circuit held that Congress limited § 505(e) and § 510 to remedies for pollution activities occurring within the state or, in the interstate context, to actions in and under the law of the discharging state.⁵⁷ The Ouellette court held that the two clauses permit an action in and under the law of the injured state. Both courts supported their holdings with observations from Illinois II and the statute.⁵⁸ Neither source provides clear guidance on the issue and both courts had to stretch to come to the conclusions they did.

The major flaw in the Seventh Circuit's analysis is its attempt to distinguish between an action in the discharging state and one in the injured state. The distinction is not made in the FWPCA.⁵⁹ Language in the Act discussing the role of the discharging state, which the Seventh Circuit focused on, does not dictate that the polluter should gain the upper hand. The Illinois II Court observed that § 510 allows states to adopt more stringent limitations "through state administrative processes, or even that States may establish such limitations through state nuisance law, and apply them to in-state dischargers."⁶⁰ This statement does make a distinction between in-state and out-of-state discharges, but arose in the context of using nuisance to impose stricter discharge standards, not to provide compensation for damages. The Seventh Circuit's analysis implies that it thinks the authors of the FWPCA would not want to encourage state common law suits over interstate pollution, but the FWPCA clearly anticipates state abatement of water pollution, albeit with federal oversight, and seeks to eliminate pollution entirely.⁶¹ It seems inconsistent [16 ELR 10141] with these purposes to discourage suits to impose liability for water pollution discharges, even those otherwise sanctioned under the Act.

The legislative history of the two savings sections support a broader reading than that given by the Seventh Circuit. The history of the citizen suit provision states that compliance with the FWPCA would not be a defense to a common law action for pollution damages and does not appear to address the choice of law question.⁶² It also indicates that § 505(e) preserves remedies available "under any other law."⁶³ Taken with the reference to common law actions for damages, this would appear to preserve a state's right to sue under its own law, as there is no limiting language. The history behind § 510 states that states maintain the right to impose more stringent standards than those imposed by the Act.⁶⁴ It preserves a state's right to impose "any other requirement" to control water pollution;⁶⁵ this does not suggest that an injured state should be limited to actions under the law of the discharging state and, in any event, deals with emission limits and not damages.

The Ouellette court's analysis of congressional intent also has flows. The court attempted to put itself in Congress' place in 1972 to try to divine that body's intent. The court accurately observed that the state of the law at the time Congress initially drafted the savings provisions indicated that a state tort action such as Illinois' or the Ouellettes' would be allowed in federal court. But the amendments had not reached conference when the Supreme Court decided Illinois I in which it explicitly overruled Ohio v. Wyandotte Chemicals Corp.⁶⁶ Wyandotte was the Second Circuit's reference point for the state of the law at the time Congress wrote §§ 505(e) and 510. The Second Circuit's interpretation of the timing of legislative action does not appear to have support in the legislative history.⁶⁷ Conference activity took place after the decision. A Congress that was dissatisfied in any way with a holding that only federal law applied could have amended the final version of the bill before it was passed.⁶⁸

What Will the Court Decide?

The Supreme Court seems most likely to rule that the FWPCA does preserve state common law actions for damages for interstate pollution; it ought to conclude that the law of the injured party's state may govern. The Court has several other options, but none is as consistent with the applicable law, the Court's recent decisions on related issues, and the goals of the FWPCA.

One alternative would be to rule that there is no room at all for state common law in interstate water pollution cases. As discussed earlier, this result is consistent with the Court's earlier decisions in Illinois.⁶⁹ If Congress wanted to make compensation actions available in this area of federal jurisdiction, it could do so. However, it is hard to find in the FWPCA any intent to deprive persons injured by water pollution of the opportunity to use state tort law to seek compensation. Indeed, access to state common law seems to have been preserved. The Court has been reluctant to hold that federal legislation preempts state tort law unless Congress has clearly indicated that this is its intent.⁷⁰

A second alternative, which might make the most sense but is extremely unlikely, would be for the Court to rule that federal common law remedies should be available. This would allow the development of uniform principles for resolving interstate water pollution disputes and at the same time would not deprive injured persons of an opportunity to seek a remedy which they would otherwise have in the purely intrastate context. Sea Clammers, however, stands in the way of this result, and even though its analysis of this issue was not particularly thorough, this Court seems unlikely to reopen the door to federal causes of action in this area.

The more likely alternatives, therefore, are to find that state law has been preserved, or reinstated, by the FWPCA. The issue remaining, and the issue most directly presented by the decisions below, is which state's law governs. The Seventh Circuit's rationale for applying the law of the polluter's state seems weak, particularly where, as in Ouellette, the parties are private citizens and the suit is one for damages. The Seventh Circuit was primarily concerned with the unfairness to a sovereign state in being called to account under another's law and the potential for courts in downstream states to be particularly hard on out-of-state polluters. But there is no logic to giving the sovereign as polluter the benefit of its own law while denying that advantage to the sovereign as injured party or representative of injured citizens. And with the federal courts available in the interstate suits, discriminatory application of the law of either state seems unlikely.

It might be argued that the injured state does not need the protection of the law, since the FWPCA offers it protection. In Illinois II the Court noted that such protection would be superfluous since § 402(b)(3) of the FWPCA⁷¹ allows a state that may be affected by a proposed discharge [16 ELR 10142] permit in another state to participate in the permit process.⁷² This decision concerned setting discharge limits, however, a process that Congress clearly intended to follow the scheme outlined in the Act. Section 402(b)(3) offers no help to citizens later injured by the pollution from the permitted source. If reference to the injured state's law resulted in an incentive for stricter control, this would be consistent with FWPCA's purpose of eliminating water pollution. Since the limited support available in the statute is for reference to the law of the injured party and that would be the result of applying established conflicts of law rules, that is the path the Supreme Court should follow.

1. 54 U.S.L.W. 3630 (Mar. 24, 1986). The case will hereinafter be referred to as Ouellette.

2. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

3. Illinois v. City of Milwaukee (Illinois I), 406 U.S. 91, 2 ELR 20201 (1972).

4. City of Milwaukee v. Illinois (Illinois II), 451 U.S. 304, 11 ELR 20406 (1981).

5. § 505(e), 33 U.S.C. 1365(e), ELR STAT. 42147; § 510, 33 U.S.C. 1370, ELR STAT. 42149.

6. 451 U.S. 304, 11 ELR 20406.

7. 406 U.S. 91, 2 ELR 20201. Illinois originally brought the litigation in the Supreme Court under the Court's original jurisdiction, alleging that several Wisconsin cities were causing pollution of Lake Michigan. The Court held that the municipalities were not the equivalent of sovereign states, and that although it might be appropriate for it to assume original jurisdiction, the district court would suffice as a forum. 406 U.S. at 108, 2 ELR at 20205.

8. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

9. The sole issue in Illinois II was whether the 1972 amendments, which totally revamped the nation's water pollution regulatory program, occupied the field to the extent of preempting the cause of action of federal common law nuisance.

During the nine years between the two decisions, the doctrine developed rapidly in the lower federal courts. See, e.g., City of Evansville v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008, 9 ELR 20679 (7th Cir. 1979), cert. denied, 444 U.S. 1025 (1980) (municipal utilities stated valid cause of action under federal common law nuisance); Illinois v. Outboard Marine Corp., 619 F.2d 623, 10 ELR 20323 (7th Cir. 1980) (doctrine applicable to any navigable body of water); National Sea Clammers Association v. City of New York, 616 F.2d 1222, 10 ELR 20155 (3rd Cir. 1980) (private right of action for federal common law nuisance implied by FWPCA), rev'd and remanded sub nom., Middlesex County Sewerage Authority v. Natsional Sea Clammers Association, 453 U.S. 1 (1981); contra, Committee for the Consideration of Jones Falls Sewerage System v. Train, 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976) (no private action for abatement of interstate water pollution).

10. 453 U.S 1, 11 ELR 20684 (1981). For additional discussion of the doctrine's development see, e.g., Comment, Federal Common Law and the Environment: Illinois v. Milwaukee, 2 ELR 10168 (Aug. 1972); Comment, Two Circuits Scuttle Expansion of Federal Common Law, 6 ELR 10256 (Nov. 1976); Comment, Illinois v. City of Milwaukee Revisited: Seventh Circuit Charts Important Role of Federal Common Law of Nuisance, 9 ELR 10087 (May 1979); Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168 (Oct. 1979); Comment, Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II, 10 ELR 10101 (May 1980).

11. Illinois v. City of Milwaukee, No. 72-C-1253, 8 ELR 20503 (1978); Illinois II, 451 U.S. at 310, n.4, 11 ELR at 20407.

12. Illinois v. City of Milwaukee, 599 F.2d 151, 177, n.53, 9 ELR 20347, 20360 (1979).

13. In this regard we note the inconsistency in Illinois' argument and the decision of the District Court that both federal and state nuisance law apply to this case. If state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.

451 U.S. at 313, n. 7, 11 ELR at 20408.

14. Illinois II, 451 U.S. at 310, n. 4, 11 ELR at 20407.

15. Id.

16. 451 U.S. 982 (1981).

17. Illinois II, 451 U.S. at 310, n. 4, 11 ELR at 20407.

18. 731 F.2d 403, 14 ELR 20359 (7th Cir. 1984), amended, Nos. 77-2246, 81-2236 (7th Cir. May 29, 1984).

19. Illinois v. City of Milwaukee, 731 F.2d 403, 14 ELR 20359, cert. denied sub nom. Scott v. City of Hammond, __ U.S. __, 105 S. Ct. 979, 53 U.S.L.W. 3526 (Jan. 21, 1985).

20. Vermont v. New York, 417 U.S. 270 (1974) (original action alleging causes of action based on nuisance and trespass); Ouellette v. International Paper Co., 86 F.R.D. 476 (D. Vt. 1980); Ouellette v. International Paper Co., No. 78-163 (D. Vt. Oct. 29, 1982) (certification of plaintiff class in action alleging federal and state statutory and common law causes of action); Ouellette v. International Paper Co., No. 78-163 (D. Vt. Mar. 27, 1983) (state included as riparian landowner in plaintiff class).

21. Ouellette v. International Paper Co., 602 F. Supp. 264, 265, 15 ELR 20377 (1985).

22. Although the motion was filed in 1981, the district court suggested the parties wait until the 7th Circuit made a ruling in the Illinois litigation, to which they agreed. Ouellette v. International Paper Co., 602 F. Supp. at 265, 15 ELR at 20377.

23. Ouellette v. International Paper Co., 776 F.2d 55, 16 ELR 20012 (2d Cir. 1985).

24. Stoddard v. Western Carolina Regional Sewer Authority, 784 F.2d 1200, 16 ELR 20503 (4th Cir. Mar. 5, 1986) (Congress did not intend FWPCA to occupy entire field of water pollution to exclusion of state regulation); Tennessee v. Champion International Corp. (Tenn. Ct. App. 1985), appeal granted (Tenn. S. Ct. 1985) (interstate water pollution action may be brought under Tennessee law in a Tennessee court against an out-of-state discharger).

25. Ouellette v. International Paper Co., 776 F.2d 55, 16 ELR 20012, cert. granted sub nom. International Paper Co. v. Ouellette, 54 U.S.L.W. 3630 (Mar. 24, 1986) (No. 85-1233).

26. Illinois III, 731 F.2d 403, 14 ELR 20359. Ouellette, 602 F. Supp. 264, 15 ELR 20377, aff'd, 776 F.2d 55, 16 ELR 20012 (1985).

27. Illinois III, 731 F.2d 403, 14 ELR 20359, Ouellette, 602 F. Supp. 264, 15 ELR 20377, aff'd, 776 F.2d 55, 16 ELR 20012 (1985).

28. 33 U.S.C. § 1365(e), ELR STAT. 42147.

29. 33 U.S.C. § 1370, ELR STAT. 42149.

30. Illinois III, 731 F.2d at 413, 14 ELR at 20365.

31. Ouellette, 602 F. Supp. at 269, 15 ELR at 20379, aff'd, 776 F.2d 55, 16 ELR 20012 (1985).

32. See infra text accompanying notes 69-72.

33. The Supreme Court did not explicitly direct the Seventh Circuit to consider the state law claims on remand. In its previous opinion after Illinois I, the Seventh Circuit ruled that federal common law controlled interstate water pollution conflicts and had specifically declined to address the state law claims. Illinois v. City of Milwaukee, 599 F.2d 151, 9 ELR 20347 (7th Cir. 1979). The Supreme Court, quoting the Seventh Circuit on this point, also expressly declined to address the state law claims, since Milwaukee had not argued them and Illinois had filed a separate petition for certiorari on those claims. Illinois II, 451 U.S. at 310, n.4, 11 ELR at 20407.

34. The two cases, Scott v. City of Hammond, 519 F. Supp. 292, 12 ELR 20128 (N.D. Ill. 1981) and Illinois v. Sanitary District of Hammond, 498 F. Supp. 166 (N.D. Ill. 1980), presented similar questions of federal and state common law. Although the district court dismissed the federal common law claims after the Supreme Court ruling in Illinois II, it had refused to dismiss the state law claims and certified the issue for interlocutory appeal. Illinois III, 731 F.2d at 404, 14 ELR at 20361.

35. Illinois I, 406 U.S. at 107, 2 ELR at 20205.

36. Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 1 ELR 20124 (1971).

37. Illinois II, 451 U.S. at 327, n.19, 11 ELR 20412.

38. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981).

39. 731 F.2d at 413, 14 ELR at 20365.

40. Ouellette v. International Paper Co., 602 F. Supp. at 272, 15 ELR at 20380. The Supreme Court rejected a proposed consent decree in 1974. Vermont v. New York, 417 U.S. 270 (1974).

41. The district court certified a class action, the class consisting of the state and the area residents. Ouellette v. International Paper Co., No. 78-163 (D. Vt. Oct. 29, 1982), discussed in Ouellette v. International Paper Co., 602 F. Supp. at 265-266, 15 ELR at 20377. The state of Vermont was included in the class as a riparian landowner. Petitioner's Petition for a Writ of Certiorari at 3, International Paper Co. v. Ouellette, cert. granted, 54 U.S.L.W. 3630 (Mar. 24, 1986) (No. 85-1233).

42. The analysis of interest in Ouellette is the district court decision since the Second Circuit affirmed almost all the lower court's analysis in a two-paragraph per curiam opinion.

43. 602 F. Supp. at 268, 15 ELR at 20378, aff'd, 776 F.2d 55, 16 ELR 20012 (2d Cir. 1985).

44. Yet the Seventh Circuit, despite these concerns, was willing to allow suits to be brought under state common law in the discharging state. Illinois III, 731 F.2d at 414, 14 ELR at 20365.

45. Illinois II, 451 U.S. at 327, n.19, 11 ELR at 20412.

46. 401 U.S. 493, 1 ELR 20124.

47. Ouellette, 602 F. Supp. at 269-270, 15 ELR at 20379, citing 406 U.S. at 102, n. 3, 2 ELR at 20204.

48. See, e.g., Missouri v. Illinois, 180 U.S. 208 (1901); Missouri v. Illinois, 200 U.S. 496 (1906); Kansas v. Colorado, 206 U.S. 46 (1907); Hinderlider v. La Plata River Cherry Creek Ditch Co., 304 U.S. 92 (1938); Vermont v. New York, 417 U.S. 270 (1974); Illinois I, 406 U.S. 91, 2 ELR 20201.

For discussion on the courts' treatment of interstate water disputes, see, e.g., Comment, Seventh Circuit Interprets Federal Common Law of Nuisance to Authorize Municipalities to Sue for Damages, 9 ELR 10168, 10170 (1979); Comment, Federal Common Law of Nuisance Reaches New High Water Mark as Supreme Court Considers Illinois v. Milwaukee II, 10 ELR 10101 (May 1980); Comment, Requiem for the Federal Common Law of Nuisance, 11 ELR 10191 (Oct. 1981); Bleiweiss, Environmental Regulation and the Federal Common Law of Nuisance: A Proposed Standard of Preemption, 7 HARV. ENVT'L L. REV. 41 (1983); Collins, The Dilemma of the Downstream State: The Untimely Demise of the Federal Common Law of Nuisance, 11 B.C. ENVT'L AFFAIRS L. REV. 295 (1984).

49. Illinois, I, 406 U.S. 91, 2 ELR 20201; Secrsetary of the Interior v. California, 464 U.S. 312, 14 ELR 20129 (1984).

50. 451 U.S. at 327, n.19, 11 ELR at 20412, discussing the overruling of Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 1 ELR 20124 (1971).

51. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981).

52. Illinois II, 451 U.S. at 310, n.4, 11 ELR at 20407; Brief of Respondents in Opposition to Writ of Certiorari at 7, International Paper Co. v. Ouellette (U.S. Feb. 21, 1986) (No. 85-1233).

53. The Court said:

We are thus not persuaded that § 505(e) aids respondents in this case, even indulging the unlikely assumption that the reference to "common law" in § 505(e) includes the limited federal common law as opposed to the more routine state common law.

451 U.S. at 329, 11 ELR at 20412 (emphasis in original).

54. 451 U.S. at 353, 11 ELR at 20419. The majority, of course, was not obligated to respond to each contention made by the dissent; but it must have been aware that its failure to do so might give rise to contemplation as to why it had not felt it necessary to respond.

55. 451 U.S. at 316-317 & n.9, 11 ELR 20409; Brief of Respondents in Opposition to Writ of Certiorari at 7-8, International Paper Co. v. Ouellette (U.S. Feb. 21, 1986) (No. 85-1233).

56. Section 505(e), 33 U.S.C. § 1365(e), ELR STAT. 42147, provides:

Nothing in this section shall restrict any right which any persion (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a state agency).

Section 510, 33 U.S.C. § 1370, ELR STAT. 42149, provides in relevant part that nothing shall:

(1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution … or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.

57. Illinois III, 731 F.2d at 413, 14 ELR at 20365. This is also, not surprisingly, the argument of the Ouellette petitioners in the Supreme Court. Petitioner's Petition for Writ of Certiorari, International Paper Co. v. Ouellette (U.S. Jan. 22, 1986) (No. 85-1233).

58. The Seventh Circuit derived support for this conclusion from the FWPCA's emphasis on the "role of the state where the discharge in question occurs" and the potential for conflict if states were allowed to impose their own standards on other states. Illinois III, 731 F.2d at 413, 14 ELR at 20364. The Ouellette court derived its rationale from the status of tort law at the time Congress deliberated over the 1972 FWPCA amendments. Ouellette, 602 F. Supp. at 269-270, 15 ELR at 20379, aff'd, 776 F.2d 55, 16 ELR 20012 (1985).

59. Ouellette, 602 F. Supp. at 269, 15 ELR at 20379.

60. 451 U.S. at 328, 11 ELR at 20412; see also Non-statutory Pollution Remedies in the Wake of City of Milwaukee v. Illinois, 35 RUTGERS L. REV. 595, 612 (1983).

61. Non-statutory Pollution Remedies in the Wake of City of Milwaukee v. Illinois, 35 RUTGERS L. REV. 595, 609 (1983). In addition to the saving clauses preserving state law remedies, the Act declares in its statement of purpose that

It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of [s]tates to prevent, reduce, and eliminate pollution ….

Section 101(b), 33 U.S.C. § 1351(b), ELR STAT. 42105.

62. It should be noted, however, that the section would specifically preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages.

S. REP. NO. 414, 92d Cong., 2d Sess. 81, reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3668, 3746-3747.

63. Id.

64. This section of the Act retains the right of any [s]tate or locality to adopt or enforce effluent standards or limitations, or any other requirement, respecting control or abatement of a water pollution more stringent than those required or established under this Act.

S. REP. NO. 414, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 3668, 3751.

65. Id.

66. 401 U.S. 493, 1 ELR 20124 (1971), overruled in Illinois I, 406 U.S. at 102, n. 3, 2 ELR at 20204.

67. Petitioner's Petition for a Writ of Certiorari at 14-15, International Paper Co. v. Ouellette, 54 U.S.L.W. 3630 (Jan. 22, 1986) (No. 85-1233).

68. Id.

69. Illinois I, 406 U.S. 91, 2 ELR 20201; Illinois II, 451 U.S. 304, 11 ELR 20406.

70. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 14 ELR 20077 (1984); Illinois II, 451 U.S. at 316, 11 ELR at 20409. In both cases, however, the Court emphasized that it is a question for Congress to decide. Silkwood, 464 U.S. at 256, 14 ELR at 20082; Illinois II, 451 U.S. at 315 & n.8, 11 ELR at 20409.

71. 33 U.S.C. § 1342(b)(3), ELR STAT. 42141.

72. 451 U.S. at 325, 11 ELR at 20411. Illinois had not taken advantage of the process in Wisconsin, although it had received notice of the proposed permits. Id.