Federal Common Law and the Environment: Illinois v. Milwaukee

The recent case of Illinois v. Milwaukee, 2 ELR 20201 (U.S. 1972), clears the way for the federal district courts to apply federal common-law principles in the resolution of interstate environmental controversies. This new development, which was first discussed in ELR Comments on Texas v. Pankey, 1 ELR 20089 (10th Cir. 1971), and Ohio v. Wyandotte, 1 ELR 20124 (U.S. 1971), carves out an important exception to the Erie doctrine and definitely enlarges the role the federal courts can play in environmental protection. See Comments at 1 ELR 10018 (February 1971) and 10038 (March 1971). If the federal district courts willingly implement their new mandate, they will develop a body of law which will fill the gaps presently existing in the patchwork of federal and state environmental protection statutes, stimulate more effective regulatory efforts, focus Congressional attention on neglected interstate environmental problems, supplant state law and state courts where they have inadequately dealt with interstate problems, and grant the states, their individual citizens and the federal government a new source of power to cope with environmental degradation.

The advisability of such a development in federal law was discussed favorably in the earlier ELR Comments. The pros and cons will not be further discussed here.¹ [2 ELR 10169] Rather, because the Supreme Court has already indicated that the district courts should apply federal common law in appropriate cases, this Comment will review the cases which involve the new theory and will discuss the possible scope of the new cause of action.

Interstate Pollution Cases: Facts, Holdings and Subsequent Developments

The first of the recent cases involving pollution disputes between a state and citizens of another state was Texas v. Pankey, 1 ELR 20089 (10th Cir. 1971). There the state of Texas sought an injunction in the New Mexico federal district court against eight New Mexico ranchers as representatives of a class that threatened to use a chlorinated camphene pesticide to control range caterpillars on their grazing lands. Texas alleged that the pesticide would be carried in the runoff from rainfall into the Canadian River and into Texas waters, thereby endangering the water supply or eleven Texas municipalities. The district court dismissed for lack of jurisdiction, but the Tenth Circuit reversed, finding that Texas's "quasi-sovereign ecological right" to be free from out-of-state pollution was based on federal common law, thus stating a cause of action arising under the laws of the United States over which federal district courts have jurisdiction. No further litigation followed the Tenth Circuit's decision remanding the case to the district court. As the Tenth Circuit noted, the disputed spraying had occurred by the time the circuit court ruled, and Texas, without an immediate threat against it, chose to abandon further proceedings.

About a month and a half after the Pankey decision, the Supreme Court decided Ohio v. Wyandotte Chemical Corp., 1 ELR 20124 (U.S. 1971). In that case, the state of Ohio moved to invoke the Court's original jurisdiction to hear a complaint against three non-resident corporations allegedly responsible for polluting Lake Erie and its feeder streams with mercury. While admitting that a suit between a state and citizens of another state falls within the ambit of its original jurisdiction, the Court declined jurisdiction, stating that it must protect its primary function as an appellate tribunal. The Court decided not to accept jurisdiction because (1) the issues in the case were bottomed on local law and did not raise serious questions of federal law; and (2) other adjudicatory and conciliatory bodies were actively grappling with the complex problems on a more practical basis. The Court did not discuss the Pankey decision nor did it consider the application of federal common law, although Mr. Justice Douglas's dissent noted the public importance of the case and its suitability for federal adjudication.

However, in the most recent decision in this area, Illinois v. City of Milwaukee, 2 ELR 20201 (U.S. 1972), the Supreme Court held that a federal claim based on common law could be pleaded in an interstate water pollution controversy. The state of Illinois moved to invoke the Court's original jurisdiction in a suit against several Wisconsin municipalities and agencies which allegedly were dumping raw or inadequately treated sewage into Lake Michigan. As in Wyandotte, the Court refused to hear the case in order to protect its primary function as an appellate court. But the Court distinguished Wyandotte as having been preoccupied with nuisance under local law and found that Illinois had stated a claim under federal common law, citing Georgia v. Tennessee Copper Co., 206 U.S. 230 (1906), and Texas v. Pakey, supra. Federal district courts have jurisdiction to hear such suits, the Court held, because the considerable federal interest in the purity of interstate waters puts the jurisdictional amount beyond question and because the word "laws" in 28 U.S.C. § 1331 (a) includes federal common law as well as federal statutes. The Court further noted that future federal regulation may pre-empt some of the federal common law of nuisance, but that existing federal statutes and regulations do not provide the only remedies. However, federal and state standards maybe used as guidelines in fashioning federal common law rules of decision for such controversies. Illinois v. City of Milwaukee, supra, at 20205.

Immediately after the Milwaukee decision Illinois filed suit in federal district court against the same defendants, Illinois v. City of Milwaukee, ELR Dig. [238] (N.D. Ill., filed May 19, 1972). The complaint contains a public nuisance count in accordance with the Supreme Court's Milwaukee opinion. Two other counts based upon state statutory and common law accompany the federal claim. There is as yet no decision in the case, but defendant Metropolitan Sewerage Commission of the County of [2 ELR 10170] Milwaukee has filed a motion to quash for improper service and to dismiss for lack of jurisdiction. ELR Dig. [238] Doc. C. The state of Michigan has moved to intervent as a party plaintiff alleging subject matter jurisdiction of its proposed complaint under 28 U.S.C. § 1331. ELR Dig. [238] Doc. B.

Illinois is suing three other foreign corporations to abate water pollution of Lake Michigan tributaries, but these actions have been brought in Illinois state court pursuant to Illinois environmental statutes and state common law. Illinois v. Youngstown Sheet & Tube Company, No. 71-CH-3818 (Cook County Circuit Court-Chancery filed Aug. 16, 1971); Illinois v. United States Steel Corporation, No. 72-CH-258 (Cook County Circuit Court-Chancery, 1972); Illinois v. Inland Steel Company, No. 72-CH-259 (Cook County Circuit Court-Chancery 1972).

An interesting history followed the denial of original jurisdiction in Ohio v. Wyandotte Chemical Corp., supra. After being denied leave to file in the Supreme Court, Ohio decided to pursue its case in an Ohio state court because Mr. Justice Harlan had suggested that possibility and because at that time there was no Milwaukee precedent for federal district court jurisdiction. Ohio's state court complaint was grounded on nuisance and trespass theories; it sought a permanent injunction against mercury discharges, a mandatory injunction for removal of existing mercury (or as an alternative, a trust fund for that purpose), and punitive and compensatory damages. Ohio v. BASF Wyandotte Corp., ELR Dig. [234] (Court of Common Pleas, Cuyahoga County, Ohio filed March 22, 1972). Two of the defendants responded by petitioning for removal to federal district court on the ground that the complaint put federal law into issue since it involved the authority of United States courts to control activities of a Canadian corporation, questioned the viability of an extraterritorial injunctive decree, and implicated the Boundary Waters Treaty of 1909. ELR Dig. [234] Docs. E & F. The third defendant filed a separate answer alleging lack of jurisdiction and seeking dismissal of the complaint. ELR Dig. [234] Doc. G.

While the district court pondered these motions, the Supreme Court decided Illinois v. City of Milwaukee, supra. Then the district court remanded the BASF Wyandotte Corp. case to state court, finding that removal was improper for lack of federal court jurisdiction and for failure of all defendants to join in the removal. Ohio v. BASF Wyandotte Corp., 2 ELR 20338 (N.D. Ohio June 13, 1972). Although noting that interstate water pollution may be actionable under the laws of the United States, the court recognized the continued existence of cases for purely state or nonfederal pollution abatement, relying on the language in Milwaukee which distinguished the Ohio action as preoccupied with public nuisance under local law. Hence, the litigation will continue in Ohio state court.

In another response to Illinois v. City of Milwaukee, supra, the Department of Justice has indicated its intention to use the federal common law of nuisance in actions to abate air and water pollution. See Department of Justice press release of May 4, 1972. On February 17, 1972 the United States filed a complaint in Minnesota federal district court under the authority of 33 U.S.C. §§ 413 and 1160 (g) against the Reserve Mining Company for allegedly polluting Lake Superior with taconite tailings from its iron ore processing plant in Minnesota. The complaint alleged violations of the Federal Water Pollution Control Act and the Refuse Act. United States v. Reserve Mining Company, No. 5-72 Civ. 19 (D. Minn., filed Feb. 17, 1972). However, ten days after the Supreme Court announced the Milwaukee case, the United States amended its complaint in Reserve Mining to include a count based on federal common law principles. United States v. Reserve Mining Company, amended, No. 5-72 Civ. 19 (D. Minn., May 4, 1972). Moreover, the court has now granted leave to intervene to four additional plaintiffs and eleven additional defendants. The states of Wisconsin and Michigan were permitted to intervene in part because there were independent jurisdictional grounds to support their claims (citing Illinois v. City of Milwaukee, supra, and Texas v. Pankey, supra.). United States v. Reserve Mining Company, 2 ELR 20578, 4 ERC 1321 (D. Minn. 1972). Two other suits, recently filed by three United States attorneys for the Eastern and Southern Districts of New York and the District of New Jersey, include federal common law nuisance counts. In United States v. Lindsay, No. 72 Civ. 3039 (S.D.N.Y. filed July 18, 1972), injunctions are being sought against New York City and two corporations (as representatives of a class of New York City metal plating firms) for polluting New York Harbor with sanitary sewage and industrial wastes. In United States v. New Jersey, No. 72 Civ. 3040 (S.D.N.Y. filed July 18, 1972), nine state and local authorities are charged with failing to halt industrial discharges into New York Harbor. Both suits also contain counts alleging violations of the Rivers and Harbors Act of 1899, 33 U.S.C. § 402 et seq., as amended.

State attorneys general also have noted the Milwaukee principles in appraising their environmental powers, e.g. Smith, Present and Potential Powers of the Attorney General of Louisiana with Respect to Environmental Protection (Unpublished report to the Louisiana Attorney General, 1972), or common law of the environment generally, e.g. Committee on the Office of the Attorney General, Report on Environmental Control (July, 1971).

Scope

Although the Supreme Court indicated the direction in which the future development of federal environmental common law might proceed, it was conspicuously silent on specifics. The following analysis briefly describes the course of development which the new cause of action will probably take if it matures into a body of flexible, inclusive legal principles.

[2 ELR 10171]

The Types of Environmental Problems Reached under the Supreme Court's Decision

The Court in Illinois v. Milwaukee singled out pollution of "air or water in their ambient or interstate aspects" as foremost among the problems to which the new environmental common law may be applied. 2 ELR 20201, 20204. Air and water have been the focus of federal anti-pollution efforts for some time, and not just in their purely interstate aspects. It is to be expected that the new body of law would apply first and foremost to them; the question is how much more widely ought the new cause of action be applied.

Additional areas of environmental concern arguably include a federal interest sufficiently strong to merit the application of federal common law principles, e.g., pesticides, noise, airport and power plant siting, etc. In still other areas, such as aesthetics or visual pollution and land use, a federal interest justifying the application of federal common law may be harder to establish until Congress speaks, although there is Supreme Court authority for the proposition that certain subject-areas may be held by a court to be federally pre-empted until Congress acts, and Congress may disaffirm the Court's judgment. See Freund, The Supreme Court of the United States 94 (citing the offshore oil cases of the late'40s and early'50s).

Federal common law is easiest to apply to the close analogs of air and water pollution. Thus interstate noise, or offensive land-use practices along the far banks of a river which defines an interstate boundary, can probably be reached by the federal common law power. Yet by focusing attention upon instances where a medium — air or water — carries a polluting substance into another state, Illinois v. Milwaukee may force the scope of the new federal common law into a conceptual strait jacket.² However, the same basic reasoning which enabled the Court to apply federal common law to air and water pollution should enable district courts to reach unregulated environmental abuses of many other facets of interstate commerce. Many areas of concern of course will already be pre-empted, and difficult problems will arise in resolving issues concerning alleged restraints on interstate commerce. Nevertheless, to borrow a phrase from the case law on the Commerce Clause, the "stream of commerce" is at present the most potent area for the application of federal common law. A few examples include traffic in the skins, hides and furs of endangered species, environmentally destructive interstate land sales, and the shipment of non-returnable containers.

There is no reason to fear the excesses of courts in fashioning new rules in this area. The courts will provide much-needed coordination in areas where states are unable to achieve workable compromises themselves and will thus help identify areas of environmental concern for future legislative action. As noted above, Congress can later pre-empt the common law if it is dissatisfied with the court-made rules, and it is also free to decide that the area is the exclusive domain of the state legislatures.

Federal Common Law vs. Federal and State Statutory Standards: Legislative Pre-emption

The Court in Illinois v. Milwaukee of course did not intend for federal common law to displace existing federal statutory standards; rather, the new law was supposed to fill the gaps in the patchwork of federal and state laws and provide coordination where states were in conflict over disparate standards of environmental quality. Yet Illinois v. Milwaukee implicitly adopts a narrow definition of legislative pre-emption, especially when read in conjunction with Texas v. Pankey.

In Illinois v. Milwaukee, Mr. Justice Douglas goes to great lengths to show a strong continuing federal interest in water quality. He cites a plethora of federal legislation affecting water quality, from the Refuse Act of 1899 to the National Environmental Policy Act of 1969. In fact, he risks proving too much by citing the various provisions for state and federal action which might preempt a common law approach. Nevertheless, he finds that the remedy sought by Illinois is not within the "precise scope" of existing federal statutory remedies, including the standards set under the Federal Water Pollution Control Act, its conference provisions, and its provision for the Attorney General to bring suit for pollution abatement. 2 ELR 20201, 20203-04.

The Tenth Circuit decision in Texas v. Pankey supports this narrow view of pre-emption and suggests that a mere intent to pre-empt, demonstrated by the passage of legislation, is not enough to bar the application of federal common law. The Tenth Circuit stated that federal common law should apply "until the field has been made the subject of comprehensive legislation or authorized administrative standards." (emphasis added) 1 ELR 20090. Thus if Congress has legislated a federal regulatory program, until its implementation takes place through fully approved administrative standards, federal common law will still be available. The facts in both Illinois v. Milwaukee and Texas v. Pankey support this view. Existing federal and state water pollution control and pesticide legislation was not enough to pre-empt the field. See ELR Comment, 1 ELR 10020.

A similar argument applies to air pollution. In Washington v. General Motors Corp., 2 ELR 20183 (U.S. April 24, 1972), decided the same day as Illinois v. Milwaukee, the Court, in declining to allow the suit to be brought in the Supreme Court's original jurisdiction, said that the 18 states complaining of a conspiracy among automobile manufacturers to restrain the development of motor vehicle air pollution control devices could renew their attempts to obtain federal common law relief in the parallel suits which they had filed in federal district courts. 2 ELR 20184, 20185. Writing for the Court, Mr. Justice Douglas cited the patchwork of state/federal preemption [2 ELR 10172] that has already occurred but found that even after Congress's flurry of activity in recent years, as a matter both of law and practical necessity air pollution remedies "necessarily must be considered in the context of localized situations." 2 ELR 20185. Federal common law remedies presumably cover such situations.

Ohio vy. Wyandotte, 1 ELR 20124 (U.S. 1971), might be viewed as holding that various federal, state and international initiatives had pre-empted common law relief in the case of Lake Erie. Such a view overlooks the fact that the Court was trying to decide whether to exercise its original jurisdiction (which it had already said it intended to exercise sparingly) in a situation where so much was already being done that the Court could play only a marginal additional role:

… granting Ohio's motion for leave to file would, in effect, commit this Court's resources to the task of trying to settle a small piece of a much larger problem that many competent adjudicatory and conciliatory bodies are actively grappling with on a more practical basis. 1 ELR 20124, 20127.

A different set of considerations would apply to the federal district court, should Ohio bring its suit there.

Once a strong federal interest supporting the application of federal common law has been shown to exist, common law principles applied by the courts will displace or assimilate state statutes and common law in the same area. See Hinderlider v. La Plata Co., 304 U.S. 92, 110 (1938), cited in Illinois v. Milwaukee at 2 ELR 20204. This is also true if a matter governed by federal common law is raised in state court.³

The narrow definition of pre-emption which governs federal common law cases will have a healthy effect on the body of federal environmental law by supplementing federal statutory law, resolving interstate disputes, and prodding Congress toward more effective federal legislation by drawing attention to specific areas of actual controversy within broad fields of federal environmental concern.

Who May Sue

Suits by states against citizens of other states were the focus of the Supreme Court's opinion in Illinois v. Milwaukee. A problem may be thought to arise if defendant argues that his state is indispensable to the action and must be joined as a defendant, thus suggesting that the case should be heard by the Supreme Court because it has exclusive jurisdiction of suits between states. However, the Federal Rules of Civil Procedure will not allow joinder to be used as a procedural device to frustrate the jurisdiction of the court. See Fed. R. Civ. P. Rule 19 (a). Rule 19 (b) sets out various equitable considerations which may require the court to dismiss the action where joinder is not feasible yet the absent person is indispensable. (Quaere whether a state is a "person" under the Rules.)

Defendant will frequently be a subdivision of the state, such as a state agency responsible for regulating water or air pollution. The defendant may therefore argue that the suit is actually against the state and must be brought in the original jurisdiction of the Supreme Court. The Court reached this question in Illinois v. Milwaukee, because Illinois argued that the Wisconsin agencies named as defendants were instrumentalities of Wisconsin so that the Court had to take jurisdiction. The Court concluded that while under appropriate pleadings Wisconsin could be joined as a defendant, it was not mandatory that it be made one. 2 ELR 20201, 20202.

A particularly important issue is whether a private party may avail himself of the federal common law in suits against citizens of another state. The emphasis here is not upon jurisdiction; federal district court jurisdiction is readily available on diversity grounds. Rather, the key question is whether the significant body of new law may be applied at the instance of the private citizen. There is no reason why it should not, as long as the matter plaintiff complains of involves interstate environmental degradation.

It is clear that federal common law is available to private litigants when the rights and titles of the parties are dependent upon state boundaries or upon agreements between states. See Moore's Federal Practice, Vol. 1A § 0.320 (2d ed. 1965), especially the cases cited in footnote 5. State boundary disputes and interstate agreements involve the ironing out of interstate problems which are quite similar to the environmental problems which the new common law will help resolve. While it is true that some of the language in the cases which prescribe the development of federal common law indicates that the state's remaining "quasi-sovereign" interests give it a special interest in obtaining relief in its own name, nevertheless the concrete interests of citizens in environmental quality are at least as important as the abstract interest of the state in vindicating its residual sovereignty. There is no reason to limit relief to suits brought in the name of the state. Citizens who are particularly affected by interstate pollution should have access to all sources of law which afford them protection.⁴

Sources of Substantive Principles Which the District Courts May Apply

An earlier ELR Comment said that the foundations for [2 ELR 10173] the development of environmental legal principles based on common law had been laid in Texas v. Pankey. The Supreme Court's decision in Illinois v. Milwaukee reinforces this viewpoint. The following discussion inquires into what the nature or content of those principles might be.

Equitable Principles Derived from Nuisance Doctrine

The Court in Illinois v. Milwaukee clearly intended to create a new class of litigation in which the federal district courts would balance the equities on a case-by-case basis and thus evolve a "federal common law of nuisance." The Court's discussion of nuisance is limited to the key concept of equitable balancing, which is the crux of the common law cause of action. There was no apparent intention to import other doctrine-encrusted elements of the tort into the newly created field of litigation. "There are no fixed rules that govern; these will be equity suits in which the informed judgment of the chancellor will largely govern." And again, "the applicable federal common law depends upon the facts peculiar to the particular case." 2 ELR 20205. Elsewhere, the Court speaks of the federal courts' being empowered to "appraise the equities" and approves the principles set out in Texas v. Pankey, supra. It also cites language with a similar intent from Georgia v. Tennessee Copper Co., 206 U.S. 230 (1906) ("reasonable demands"), and Nebraska v. Wyoming, 325 U.S. 589 (1945) ("the delicate adjustment of interests").

In Texas v. Pankey, upon which Mr. Justice Douglas relies heavily in his own opinion, the Tenth Circuit never characterizes the new cause of action as "nuisance." Rather, the court refers repeatedly to "ecological" rights, conditions and controversies and describes the federal common law as the basis for uniform treatment of "quasisovereign ecological rights" and "environmental rights." 1 ELR 20090. Other language suggests that the Tenth Circuit felt that the Supreme Court in the Tennessee Copper case, upon which Pankey expressly relies, was groping for a way to characterize the rights involved and hit, imprecisely, upon nuisance. The phrases used by Mr. Justice Holmes in the Tennessee Copper case, such as injury "analogous to torts" ad "abatement of outside nuisances," put the cause of action on what the Pankey decision calls an "indefinite basis," which the Pankey court makes more definite with the benefit of hindsight.

The Supreme Court has thus given the federal district courts a wide mandate to fashion common law relief on a theory of reasonableness akin to the balance-of-equities test of the common law nuisance action. However, a problem may arise with this new mandate if the district courts import the restrictive elements of traditional nuisance into this new cause of action. The Supreme Court did not intend for the district courts to respond by trying the new cases as if they were ordinary diversity actions in which the states' doctrine-encrusted case law had to be applied. As Mr. Justice Holmes said in the Tennessee Copper case, "there is no pretence that this is a nuisance of the simple kind that was known to the older common law." 200 U.S. 496, 522.

The Court intended for the district courts to appraise the defendant's conduct in view of the harm done plaintiff and a range of other pertinent considerations, defined on a case-for-case basis. Hence it does not appear to be by accident, nor through embarrassment with the short-comings of nuisance as a basis for the new cause of action, that the Court refrained from further discussion of the elements of the tort. The Court did not think it necessary to comment upon the deep roots of nuisance in property law, nor did it indicate any difficulty in including in the balance of equities the personal injury caused by air and water pollution. Nor did the Court comment upon case law distinctions between continuous and temporary nuisances, between remediable and irreversible injury, between public and private nuisances, and between different interpretations of the balance-of-interests test as developed in such often-cited state cases as Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Ten. 331, 83 S.W. 658 (1904), Hulbert v. California Portland Cement Co., 161 Cal. 239, 119 P. 928 (1911), and Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312 (1970). Further, no mention was made of the traditional defenses to nuisance actions; prescription, "coming to the nuisance," laches, nuclean hands, etc.⁵

The Supreme Court apparently intended for the district courts to decide the new cases as matters of first impression, such as the Supreme Court itself must decide cases in its original jurisdiction.⁶ The district [2 ELR 10174] courts may draw upon state case law where state decisions offer viable legal principles for incorporation into the federal common law, but the district courts are also free to reject state law where it would impose inequitable, outmoded results. Because the applicable law has yet to be determined, it seems clear that the Supreme Court has put the district courts in the position of not being able to dispose of the new actions without examining the merits, except in rare instances. Interferences with a state's environment in its interstate aspects must be examined on the facts; there is as yet very little law to apply.

The foregoing discussion should suffice to show that the Court did not intend to limit the sources of law to which the federal district courts might turn for partial guidance in forging new common law principles. Thus the common law of trespass, negligence, absolute liability, liability for hazardous activity, products liability, etc. may also contribute under the right circumstances.

It should again be stressed that the Supreme Court did not intend for the district courts to decide the new causes of action as if they were hearing routine tort cases in their diversity jurisdiction. The decision in Illinois v. Milwaukee was not a mere doctrinal exercise, the upshot of which was that states were to be treated as if they were citizens so that they could bring suit in the diversity jurisdiction under 28 U.S.C. § 1332. The Court long ago forbade such a result, Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482 (1894), and has recently indicated that it has not changed its mind. Dacey v. Florida Bar, Inc., 414 F.2d 195 (5th Cir. 1969), cert. denied 397 U.S. 909 (1970). The Supreme Court, rather than seeking such a transparent result, intended for the district courts to take jurisdiction because the subject matter was governed by the common law of the United States. Thus neither the law of the state in which the offending behavior originated, nor the law of the state in which the offending behavior had its impact, nor the law of the forum state is entitled to deference. The court must take each new case on its facts and adapt existing legal doctrine to its new mandate.⁷

Existing Federal Common Law

Cases decided by the Supreme Court in its original jurisdiction are also a potential source of guidance for the district courts. The Supreme Court appears to apply federal common law to all cases to which a state is a party, although it has not specifically so held. See C. Wright, Law of Federal Courts, § 109, at 504 (2d ed. 1970). Four pollution cases decided by the Supreme Court over the past half-century may afford some direct guidance to the district courts as they set about trading equities and defining standards. Several other original-jurisdiction cases involving water resources offer guidance by analogy. Particularly useful in the water-resources cases is the Court's choice of factors to be weighted in the balance. Beyond these two classes of cases, other decisions in the original jurisdiction offer additional limited guidance because they illuminate how the Supreme Court had undertaken to weight factors and trade them off, although such factors are not at all related to the environment.⁸

In Missouri v. Illinois, 180 U.S. 208 (1901), relief denied 200 U.S. 496 (1906), Missouri sought an injunction against the upstream dumping of raw sewage into the Mississippi River. The Sanitary District of Chicago proposed to channel Chicago's sewage, which had previously been dumped into Lake Michigan, into a newly constructed drainage ditch which emptied into the Des Plaines and Illinois Rivers, tributaries of the Mississippi, from which St Louis and other cities in Missouri take their water supply. The Court heard evidence on the percentage increase in sewage borne by the Mississippi (75%), the extent of general bacterial contamination, the increase intyphoid contamination, the estimated dollar value of medical treatment and of life lost from water-borne disease, the effect of the additional sources of sewage along the Missouri bank of the Mississippi, etc. Both states conducted experiments to support their cases and introduced expert testimony. The Court concluded that Missouri had not adequately shown that Chicago's sewage was the cause of disease and other loss in St. Louis (particularly increases in typhoid fever), nor had Missouri been able to show a general decline in water quality in the Illinois River, nor had it been shown that the river had changed its basic character or appearance. The Court did, however, dismiss Missouri's bill without prejudice, so that subsequent evidence proving the bill of particulars might be presented to the Court.

Regarding applicable legal principles, the Court observed that ordinary common law nuisance was not involved, but that nevertheless a proper causal nexus must be shown ("real and immediate danger"), and that rules of prescription applicable to a private party as against his state do not apply to a sister state, but that it would be contradicting a "fundamental principle of human nature" not to allow effect of the passage of time.

In Geogia v. Tennessee Copper, 206 U.S. 230 (1906), in which Mr. Justice Holmes relies upon his opinion in Missouri v. Illinois, supra, the Court held the other way in ordering an injunction to issue restraining the defendant's smelter in Tennessee from polluting the air of five Georgia counties with sulphur dioxide. Unlike the [2 ELR 10175] Missouri case, proof of injury was easily made out and required "but few words." 206 U.S. 230, 238.

On the issue of how the equities were to be treated, however, the Court had a great deal to say:

The states, by entering the Union, did not sink to the position of private owners, subject to one system of private law. This Court has not quite the same freedom to balance the harm that will be done by an injunction against that of which the plaintiff complains, that it would have in deciding between two subjects of a single political power. Without excluding the considerations that equity always takes into account, we cannot give the weight that was given them in argument to a comparison between the damage threatened to the plaintiff and the calamity of a possible stop to the defendant's business, the question of health, the character of the forests as a first or second growth, the commercial possibility or impossibility of reducing the fumes to sulphuric acid, the special adaptation of the business to the place. 206 U.S. 230, 237-8.

Mr. Justice Holmes attaches special weight to a state's desires in such a case because of its position in the union as a quasi-sovereign state. Special merit attaches to the state's claim because it gave up the alternative of self-help through force when it joined the union. 206 U.S. 230, 237. He concludes:

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act or persons beyond its control, that the crops and orchards on its hills should not be endangered by the same source. If any such demand is to be enforced this must be notwithstanding the hesitation that we might feel if the suit were between private parties …. 206 U.S. 230, 238.

Mr. Justice Harlan, concurring, urges that the same equities and balancing apply as in suits between private parties, because it is the capacity of Georgia as a party, not as a state, which entitles it to relief. 206 U.S. 230, 239-40.

In New York v. New Jersey, 256 U.S. 296 (1921), New York sued New Jersey and the Passiac Valley Sewerage Commissioners to enjoin a project which would convey the sewage of the Passiac Valley into New York Harbor. The sewer system allegedly would discharge its contents so that Atlantic tides and the currents of the Hudson and East Rivers would carry it to the city shoreline, fouling docks and wharves, preventing bathing, damaging ships and killing fish and shellfish. The Court dismissed New York's bill without prejudice, finding that a sufficient causal connection did not exist. 256 U.S. 296, 312. The Court was influenced by the signing in 1910 of an agreement between the United States and the Passiac Commissioners designed to protect federal navigation rights in New York Harbor. That agreement included provisions for modification of the sewer system which would afford additional protection to the interests which New York sought to protect in its suit. The Court cited its earlier decision in Missouri v. Illinois for the proposition that the "threatened invasion of rights must be of a serious magnitude and it must be established by clear and convincing evidence" (256 U.S. 296, 309) before the "extraordinary power" to control one state at the suit of another will be exercised. Nevertheless, as in Missouri v. Illinois, plaintiff state's suit was dismissed without prejudice, so that it could refile if convincing additional evidence accumulated.

In New Jersey v. City of New York, 283 U.S. 473 (1931), the shoe was on the other foot, and petitioner prevailed. The Court approved the findings of its Special Master, Edward K. Campbell, showing that the City of New York created a nuisance in New Jersey by dumping garbage in the ocean so that some of it eventually washed up on New Jersey's bathing beaches. The Court found that other sources dumped their garbage at sea and that this garbage also contributed to New Jersey's problem, but that the quantities involved were "negligible" and would not affect the order. The Court in balancing the equities was influenced by New York's unreasonable delay in making provision for incineration of its garbage. Finally, relief was available although New York was complying with applicable New York Law and had obtained a federal permit to dump under the Act of June 29, 1888 (33 U.S.C. §§ 441, 443, 449, 451.)

The Supreme Court has handled many water resources and apportionment cases in its original jurisdiction, and some of them may afford additional guidance to the district courts.⁹ For example, the articulation of relevant factors in the North Platte River apportionment case may be useful:

Priority of appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former — these are all relevant factors. They are merely an illustrative, not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made. Nebraska v. Wyoming, 325 U.S. 589, 618 (1945).

Other cases afford similar guidance. See Kansas v. Colorado, 206 U.S. 46 (1907) (Colorado's appropriation system allowed greater depletion than was allowed under downstream Kansas's riparian system); North Dakota v. Minnesota, 263 U.S. 365 (1921) (Bois de Sioux River flooded farms in Minnesota because North Dakota allegedly speeded run-off); Wyoming v. Colorado, 259 U.S. 419 (1922); Wisconsin v. Illinois, 278 U.S. 367 (1929) (drainage of Lake Michigan affected water levels in [2 ELR 10176] Wisconsin).

Although the Court in cases in its original jurisdiction stays close to the facts, some guidance for the district courts does emerge. For example, the Court briefly examined common law riparian concepts in the three water pollution cases. In several cases it has grappled with the hardy legal problems of causation, including multiple sources and intervening causes. It has characterized the balancing process ad skewed it in favor of a complaining state. It has accepted scientific experiments and evidence by affidavit or by testimony, and has utilized a Special Master. It has explored the articulation of relevant factors in the balancing process (aesthetics, epidemiology, social cost, economic impact, relative utility of defendant's conduct, etc.). It has also evaluated alternatives (incineration in New Jersey v. City of New York; reduction of sulphur dioxide gas to sulphuric acid in Tennessee Copper). The Court also has touched upon the doctrine of prescription, has ruled upon the effect of a federal permit to dump refuse, and has taken account of a regulatory scheme established by agreement between the United States and a defendant state.

Statutory Standards

Courts frequently turn to statutorily defined standards for guidance in determining how high to set the standard of conduct in a common law action. See Prosser, Law of Torts 191 (3d ed. 1964). Basically, the courts are seeking to further the legislative policy which they believe underlies the statute. Sometimes it appears that the courts do so by "legislating" additional relief which Congress failed to provide by express statutory provision. Sweeping Congressional statements to the effect that the public is to be given the maximum protection against broadly phrased harms of course encourages the courts to help carry out the statutory policy. Environmental legislation frequently fits this description, and thus the standards developed to implement the legislation are prime candidates for new applications in common law actions. Such applications would in no way depend upon the development of a federal common law such as we have been discussing in this Comment. Federal water quality standards, for example, could be used in pre-existing actions as the standard of conduct to be observed without any further developments in legal doctrine.¹⁰

If, however, federal common law is to be applied, statutory standards may be used to guide the formulation of the duty owed. As the Court in Illinois v. Milwaukee said:

While the various federal environmental protection statutes will not necessarily mark the outer bounds of the federal common law, they may provide useful guidelines in fashioning such rules of decision. 2 ELR 20201, 20204 (footnote 5).

Such a view comports well with the broad equitable powers which the Court intended to bestow upon the federal district courts. The Court goes on to cite its decision in Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-7, which describes quite well the process to be followed:

The question then is, what is the substantive law to be applied in suits brought under § 301 (a)? We conclude that the substantive law to apply in suits under § 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws. The Labor Management Relations Act expressly furnishes some substantive law. If points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. Federal interpretation of the federal law will govern, not state law. But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.

It is likely that in federal common law environmental lawsuits the court will not be faced with the problem of deciding whether to apply a federal standard nearly so often as it must decide whether to apply a state standard, and if so, which of two or more states' standards it should apply. Federal water and air legislation gives the states wide authority to determine standards or supervise implementation. Federal review is provided. Yet this "federal presence" in state administration of air and water programs does nothing to alleviate the problem of conflicting standards. Stated more generally, the problem comes to this: assuming that defendant is in compliance with his state's existing standards, which are lower than those applicable in the plaintiff state, should defendant be allowed to plead compliance with his state's standards as a complete defense, should the court work out an equitable compromise, or should plaintiff be allowed to impose its standards on defendant? In other words, should the lowerstate standard prevail, the higher, or should a compromise be made?

A convincing argument can be made that the higher standard should prevail. The Tennessee Copper case, supra, gives the reasons why a state should have the right to keep itself reasonably free from disturbances in its environment which, had it not renounced self-help by joining the Union, it might have chosen to abate by force. But even stronger reasons support the higher standard. In a period of declining environmental quality and of rising expectations of environmental improvement, mirrored in clearly expressed national declarations of intent to do everything possible to reverse this trend, acceptance of the "lowest common denominator" for interstate [2 ELR 10177] pollution makes little sense at all. Further, if all of the businesses and individuals in the complaining state are in fact being held to the higher standard, on balance it is equitable to impose that standard upon a limited number of out-of-state businesses in order not to frustrate the plaintiff state's pollution-control policies nor to discourage the efforts of its citizens who otherwise would find themselves held to standards which businesses in neighboring states could infringe with impunity.

1. See also the discussion of the relative merits of the new cause of action in Woods and Reed, The Supreme Court and Interstate Environmental Quality: Some Notes on the Wyandotte Case, 12 Ariz. L. Rev. 691 (1970); Note, Federal Common Law: Texas v. Pankey and Ohio v. Wyandotte, 50 Tex. L. Rev. 183 (1971); Note, State Ecological Rights Arising Under Federal Common Law: Texas v. Pankey, 1972 Wis. L. Rev. 574; Comment, The Federal Common Law, 82 Harv. L. Rev. 1512 (1969).

In a recent discussion of Texas v. Pankey and Ohio v. Wyandotte, it was suggested that the federal courts limit their common law roles in the environmental area to (1) creating remedies for violations of statutory standards where no common law remedy previously existed, and (2) incorporating statutory standards of conduct as the standard to be applied into pre-existing common law causes of action. See Note, Federal Common Law and Interstate Pollution, 85 Harv. L. Rev. 1439 (1972). Several problems with this viewpoint exist, not the least of which is that without the federal common law jurisdictional base supplied by the reasoning in Illinois v. Milwaukee, such federal court jurisdiction is unavailable if a state wishes to sue non-residents. The federal courts lack either diversity or subject-matter jurisdiction. The Note suggests that a plaintiff state should instruct its attorney-general or one of its incorporated instrumentalities to sue in order to obtain diversity jurisdiction, or that a congressional amendment allowing such action be sought, or that a constitutional argument based on Article III jurisdiction, "similar to the one advanced in Texas v. Pankey," be addvanced for the right of the state to have its case heard in a federal district court.

Special common law relief based on environmental statutes, or use of statutory standards in existing common law causes of action, would both certainly be welcome additional tools. Environmental statutes are notorious for their weak and cumbersome enforcement provisions. See Water Quality Studies in Private Nuisance Actions, 79 Yale L. Jour. 102, 106 (1969). However, the constitutional argument is clearly a weak reed; it probably would not prevail. Congressional amendment is a distant, laborious prospect with undesirable side effects. Diversity jurisdiction might possibly be available personally to a state's attorney-general or to an incorporated state instrumentality, but the closer the instigation of the suit can be associated with the entities which normally decide if a state should bring suit, the less likely the courts will countenance such a result. Thus, unfortunately, federal court jurisdiction without the basis afforded by Illinois v. Milwaukee and Texas v. Pankey is at present problematic.

Once into federal court, other problems arise; e.g., relief of the kind requested normally is available only to the state or the federal government, as the cases cited by the Note show. See Note, supra, p. 1454. Private parties would probably be denied the right to request such relief.

2. Significantly, the language in Texas v. Pankey is much broader.

3. See Hill, The Law-Making Power of the Federal Courts: Constitutional Pre-emption, 67 Colum L. Rev. 1024 (1967); Note, Federal Common Law and Interstate Pollution, 85 Harv. L. Rev. supra, 1439, 1444 (1972). The recent decision in Ohio v. BASF Wyandotte, supra, contains dicta that may be thought to be contra this view; however, in that case there was no conflicting federal common law to apply.

4. Nor should the new cause of action be compared with ordinary public nuisance, where under most state law, local or state government is the only allowable plaintiff. It may still be possible, however, that the injury sustained by, e.g., a riparian class, is sufficiently different in kind from the injury sustained by the state and its population at large to enable the riparians to sue for relief on a federal common law count.

5. A thorough discussion of the use of common law actions to defend the environment exists in the legal literature, which can be read for two distinct purposes, not necessarily made plain by the authors: (1) to evaluate whether or not the common law and the courts should be used at all for environmental control, when attractive alternatives exist through statutory and administrative regulation, and (2) to ascertain the requirements of various common law causes of action, their pitfalls, defenses to them, etc. In the event that environmental lawyers bring suits under Illinois v. Milwaukee, as a precaution they may want to read the literature cited below for the second of these purposes. This literature is not limited to nuisance and is therefore equally relevant to the common law theories discussed infra. See Comment, Environmental Law: New Legal Concepts in the Antipollution Fight, 36 Mo. L. Rev. 78 (1971); Davis, Theories of Water Pollution Litigation, 1971 Wis. L. Rev. 738; Juergensmeyer, Common Law Remedies and Protection of the Environment, 6 U.B.C.L. Rev. No. 1 (1971); Juergensmeyer, Control of Air Pollution Through Assertion of Private Rights, 1967 Duke L.J. 1126; Katz, The Function of Tort Liability in Technology Assessment, 38 U. Cinn. L. Rev. No. 4 (1969); Note, Private Remedies for Water Pollution, 70 Colum. L. Rev. 734 (1970); Note, Pollution and Common-law Relief, 25 Vand. L. Rev. 152 (1972); Note, Water Quality Standards in Private Nuisance Actions, 79 Yale L.J. 102 (1969).

6. "For decision of suits between states, federal, state and international law is considered and applied by this Court as the exigencies of the particular case may require" (emphasis added). Connecticut v. Massachusetts, 282 U.S. 660 (1901).

7. See the discussion, infra, for reasons why the higher standards governing plaintiff's behavior should be given great weight.

8. On the question of lawmaking in the Court's original jurisdiction generally, see Note, The Original Jurisdiction of the Supreme Court, 11 Stan. L. Rev. 665 (1959); Note, Federal Common Law, 82 Harv. L. Rev. 1514 (1969); Friendly, In Praise of Erie — and of the New Federal Common Law, 39 N.Y.U.L. Rev. 383 (1964); Note, Exceptions to Erie v. Tompkins: The Survival of Federal Common Law, 59 Harv. L. Rev. 966 (1946).

9. See Mr. Justice Douglas's praise of the Court's handling of its apportionment cases in the dissent in Ohio v. Wyandotte, 1 ELR 20124, 20129.

10. See Note, Water Quality Standards in Private Nuisance Actions, 79 Yale L.J. 102 (1969). See also Note, Federal Common Law and Interstate Pollution, 85 Harv. L. Rev. 1439, 1454 (1972).