Seventh Circuit Interprets Federal Common Law of Nuisance To Authorize Municipalities to Sue for Damages

Until the early part of this decade, the federal common law of nuisance consisted of little more than a nebulous theory asserting the authority of the federal courts to remedy serious instances of interstate pollution. In 1972, Justice Douglas penned his landmark opinion in Illinois v. City of Milwaukee,¹ in which the Supreme Court announced that the federal question statute² conferred jurisdiction upon the district courts to entertain common law nuisance cases. Moreover, in resolving such cases federal judges were to create, develop, and apply a body of federal common law. Because, however, that decision was simply a dismissal of a petition to invoke its original jurisdiction, the Court declined to furnish the lower courts with concrete guidance as to its conception of the parameters or direction of the new doctrine. The fresh clay thus handed the lower courts was so soft that their attempts to formulate a coherent body of law were halting, inconsistent, and often imbued with a judicial conservatism at odds with the progressive and innovative spirit of Illinois.

The Seventh Circuit Court of Appeals, only months after its deliberate but forward-looking opinion on remand in Illinois,³ recently handed down another decision that represents a significant expansion of the federal common law doctrine which augurs for its extended availability to new classes of plaintiffs in a variety of new situations. In City of Evansville v. Kentucky Liquid Recycling, Inc.⁴ in which several municipalities sought damages for defendant's pollution of the Ohio River with toxic chemicals, the appeals court rejected the trial court's dismissal of the complaint on the ground that the doctrine was applicable only in litigation brought by sovereign states. Thus was discarded a tenet which has done much to restrict access to this form of judicial relief by victims of pollution. Of equal importance is the Seventh Circuit's ruling that plaintiffs had properly stated a claim for damages. This appears to open a door to future plaintiffs seeking relief from pollution which has long since ceased or is otherwise irremediable in equity. Moreover, it provides a powerful disincentive to unlawful pollution over and above that provided by existing statutory sanctions.

Background

On March 29, 1977, operators of Louisville, Kentucky's sewage treatment plant discovered that the plant had been contaminated by toxic organic chemicals and totally disabled. It required 10 weeks to remove the toxins and restore the plant's biological treatment systems to relative normalcy. During that period, approximately seven billion tons of raw sewage were channeled directly into the Ohio River, along with small amounts of toxic chemicals. Enforcement officials eventually traced the illegal discharges to Kentucky Liquid Recycling, Inc., a small pesticide manufacturer. The firm's president was subsequently convicted by a jury of violating §§ 301, 307, and 309 of the Federal Water Pollution Control Act⁵ (FWPCA), fined $50,000, and sentenced to two years in prison.⁶

This assault upon the Ohio River was disastrous in several respects, one of which was its effects upon water supplies downstream. Water suppliers were forced to undertake extraordinary and expensive measures to maintain drinking water at an acceptable quality. To recoup these added costs, Evansville and two other Indiana cities brought a class action for compensatory and punitive damages against Kentucky Liquid Recycling, Inc. Their claim was founded upon the Rivers and Harbors Act of 1899,⁷ the FWPCA,⁸ the Safe Drinking Water Act,⁹ and the federal common law of unisance.

The district court was unable to discern a valid cause of action and dismissed the complaint for lack of subject matter jurisdiction. While the defendant's discharge was arguably violative of § 13 of the Rivers and Harbors Act,¹⁰ the statute confers authority to institute enforcement litigation only upon the Attorney General, not upon victims of discharges.¹¹ Judge Holder gave short shrift to plaintiffs' assertions of an implied private right of action under § 13, despite the existence of a substantial disagreement among the courts on this question.¹²

[9 ELR 10169]

The citizen suit provision in the FWPCA provides an express cause of action,¹³ but plaintiffs had failed to comply with its 60-day notice requirement.¹⁴ The judge rejected plaintiffs' arguments that such a shortcoming is not a fatal jurisdictional defect and dismised the claim. Plaintiffs' claim under the Safe Drinking Water Act was dismissed for the same reason. Their final jurisdictional leg, the federal common law of nuisance, was hardly more substantial than the rest, in the opinion of the district court, in that it had never been relied upon successfully by a plaintiff other than a state. Rather than exploring the thicket of policy and principle that is the federal common law of nuisance, Judge Holder relied upon the sparse but comfortably unanimous case law¹⁵ to dismiss the claim and the suit.

The Seventh Circuit's Opinion

Statutory Claims

Before reaching plaintiffs' common law claims, Judge Tone of the Seventh Circuit turned to the asserted statutory bases for the suit. He affirmed in summary fashion the trial court's ruling that § 13 of the Rivers and Harbors Act does not permit suits by private litigants and cursorily rejected plaintiffs' assertion that defendant's conduct could be construed as a violation of the Safe Drinking Water Act.

The court noted that at least two circuits had ruled a plaintiff's failure under § 505 of the FWPCA to give 60-days notice of the suit not to be a fatal jurisdictional barrier.¹⁷ In those cases, however, plaintiffs had sued federal officials and thus could establish an independent cause of action under § 10 of the Administrative Procedure Act.¹⁸ This option was obviously foreclosed in the instant case because the defendant was a private corporation.¹⁹ In addition, the court found three other independent grounds for denying review under the Act: § 505, which authorizes suit against a party "alleged to be in violation of an effluent standard or limitation," (1) does not apply to past violations; (2) does not permit the bringing of class actions; and (3) does not authorize the courts to award damages.

Having thus buried plaintiffs' claim of an express congressionally authorized right to bring the suit, the court analyzed the same three statutes to determine if they should be read to authorize reliance on an implied private right of action. Applying the standards most recently articulated by the United States Supreme Court,²⁰ Judge Tone determined that there was little support for plaintiffs' assertion of an implied right of action under the Rivers and Harbors Act. He found no indication that the Act had been intended to confer any particular benefit on municipalities or any other class of potential victims of pollution, since it was designed primarily to benefit the federal government's control over navigable waterways.²¹ Not only was the legislative history devoid of any suggestion that private suits had been contemplated by Congress, but by explicitly giving enforcement authority to the Attorney General²² Congress could reasonably be understood to have foreclosed other types of enforcement activities. After balancing the relevant factors, the court concluded that the Rivers and Harbors Act should not be read to authorize citizen suits of any kind.

Judge Tone's search for an implied right of action in the FWPCA has complicated by the fact that the Act confers an express right of action in its citizen suit provision.²³ Judge Tone found no references in the Act or in its legislative history indicating that other types of citizen litigation had been contemplated by Congress. He also viewed the creation of a detailed and carefully circumscribed citizen enforcement mechanism within § 505 to demonstrate an intent to channel all citizen litigation into that format and thus to preclude alternative avenues [9 ELR 10170] of litigation. Were an implied cause of action available in addition to the citizen suit provision, the court explained, plaintiffs could disregard the § 505 requirements at will, thereby rendering them meaningless and disrupting the legislative scheme generally. In sum, the Seventh Circuit's view was that recovery for the injuries sustained by the plaintiff municipalities simply fell within the interstices of the federal water pollution laws. If they were to establish an actionable right to relief in the federal courts, it could derive only from federal common law.

The Federal Common Law of Nuisance

It is within and in a sense because of the interstices in the federal legislative regime that the federal common law of nuisance operates as a doctrine of substantive law. It has its roots in the relationship between the states as "quasi-sovereigns,"²⁴ the Supreme Court's exclusive and original jurisdiction to hear suits between states,²⁵ and the federal courts' obligation to protect legal rights for which no remedy has been created legislatively.²⁶ As distinguished from the traditional British and state law concepts of private and public nuisance, the federal doctrine is a newcomer to American jurisprudence. This is because it was not until the rise of the industrial revolution in this country that pollution began to be produced in sufficient quantities and of sufficient toxicity to have substantial environmental effects across interstate boundaries. When controversies over the impact of such pollution started appearing in the courts, federal jurists realized what the drafters of the Constitution had already anticipated: legal disputes between the states, particularly where natural resources are concerned, cannot be resolved in state courts by reference to state law. They must be decided at a higher level within the federal system, i.e., the federal courts. It follows that if there is no congressional enactment addressing the issues, the judiciary must fashion a body of decisional law in the traditional manner.

The federal common law of nuisance had its doctrinal beginnings in two early 20th century decisions of the Supreme Court. In Missouri v. Illinois,²⁷ the Court asserted and exercised the power to resolve on the merits plaintiffs' suit for an injunction against the City of Chicago's discharges of sewage into the Illinois River. In Georgia v. Tennessee Copper Co.,²⁸ the Court awarded plaintiff an injunction against the release of noxious gases from defendant's smelter, which was located in Tennessee. There being at the time no applicable legal standards, in both cases the Court spoke of the right which inheres in a sovereign to sue to protect its ecological resources from outside pollution and held that such cases are to be decided at the federal level.²⁹ It was not until 1971, however, that these themes coalesced into a unified theory of federal common law of nuisance. In Texas v. Pankey,³⁰ the Tenth Circuit ruled that developments subsequent to Missouri v. Illinois and Georgia v. Tennessee Copper Co. permitted elevation of the "quasi-sovereign ecological rights" discussed therein to the status of federal common law rights:

[W]e think the legal concepts and developments which have occurred since the time of the Tennessee Copper decision would presently call for [such an "ecological right"] to be viewed as … a right entitled to have existence under federal common law …. Until the field has been made the subject of comprehensive legislation or authorized administrative standards, only a federal common law basis can provide an adequate means for dealing with such claims ….³¹

The court deemed it "self-evident" that its general jurisdictional grant over federal questions encompassed such claims. Thus, while Texas could have brought the case in the Supreme Court by virtue of its status as a sovereign, the district court had full authority to hear the case, not by virtue of the status of the parties but because of the nature of the legal claims at bar.

One year later, in Illinois v. City of Milwaukee,³² the Supreme Court approved the Tenth Circuit's precocious law making, reaching the same result on essentially similar grounds. The difference between Illinois and Texas v. Pankey was that in Illinois the plaintiff sought to invoke the Court's original jurisdiction. The Court declined to entertain the case based on its determination that the suit was equally within the jurisdiction of the district courts, and remanded it to the district court for resolution as a federal common law unisance action. Erasing in one stroke any remaining doubts as to the validity of the doctrine, Justice Douglas declared expansively: "[w]hen we deal with air or water in their ambient or interstate aspects, there is a federal common law."³³

Justice Douglas also took pains to dispel the notion that the doctrine arose from the simple fact that a state [9 ELR 10171] was party to the litigation. On the contrary, he pointed out that disputes over rights in interstate streams had long been recognized as presenting questions of federal common law, not necessarily because of the location of the waters, but because of the nature of the issues:

[W]here there is an overriding federal interest in the need for a uniform rule of decsion or where the controversy touches basic interests of federalism, we have fashioned federal common law.³⁴

Illinois placed the lower courts in a quandry. While they had been served notice that they were to commence deciding common law nuisance cases, they had been given no guidance in determining the contours of this new region of the law. When faced with questions of first or early impression, some courts rose to the occasion to give recognition to their broad mandate, while others followed a wooden approach, refusing to apply the doctrine beyond the facts in Illinois. The courts have thus split on the questions whether it authorizes suits by parties other than states,³⁵ and whether the body of water involved must be interstate rather than simply navigable.³⁶

In City of Evansville v. Kentucky Liquid Recycling, Inc.³⁷ the Seventh Circuit skipped over much of this mixed bag of precedent, instead drawing support directly from the Supreme Court's decision in Illinois and the sources cited therein. As to whether the plaintiff municipalities were entitled to invoke federal common law despite their nonsovereign status, Judge Tone made out a strong case that it should afford a right of action to private parties, but he stopped short of making such a broad declaration. Rather, he explained that because the plaintiffs were municipal corporations authorized to spend public monies, a state interest much like that of the plaintiff in Illinois was "implicated" in the controversy. Taking advantage of this conceptual stepping stone, the court reversed the trial court's ruling that the claim must be dismissed because the plaintiffs were not states.

The court also rejected the defendant's argument that because plaintiffs had sought damages rather than injunctive relief they had failed to state a cognizable claim. While noting the absence of decisional authority restricting the availability of damages, Judge Tone emphasized that the remedy sought in a given case has no bearing on either the validity of the underlying claim or the court's jurisdiction, adding that the "remedies appropriate for the violation of duties imposed under the federal common law of water pollution will necessarily depend upon the facts in a particular case."³⁸ Once again, however, the court stopped short of declaring flatly that the doctrine authorizes recovery of damages, stating only that by seeking damages the plaintiffs had not precluded the court's exercise of jurisdiction. But, given that the court was limited to reviewing the lower court's dismissal of the complaint, it could hardly have expressed more clearly its interpretation of the federal common law of nuisance to embrace compensatory relief.

Discussion

It is clear from the Seventh Circuit's opinion in Evansville that the court found plaintiffs' status as municipalities quite convenient. It relied on the fact that they exercise powers delegated by the state to hold them entitled to the privileges accorded sovereign states in federal court. Although such an approach is not without appeal, the traditional federal common law doctrine indicates no support for according special privileges to municipal corporations. As the court had observed previously, the doctrine is to be applied because of the interstate character of the waters in question, not the political stature of the plaintiff.³⁹ Although the Illinois decision relied largely on prior cases that were between states, those decisions do not suggest a basis for recognizing in municipalities the attributes of sovereignty which might enhance their access to relief under the common law.

Just as there are no grounds for observing a nexus between states and municipalities in this context, neither is there a justification for distinguishing municipalities from private plaintiffs in terms of their right to common law relief. There is support in the case law and the authorities for extending the doctrine to private plaintiffs,⁴⁰ perhaps the strongest of which may be found in Illinoits itself.⁴¹ Considering further the often expressed dictum that federal environmental legislation may provide useful guidelines for determining the reach of the doctrine,⁴² the FWPCA's heavy reliance on citizen enforcement [9 ELR 10172] suits in the federal courts should weigh in on the side of a private right of action under the common law.

The Evansville court explained its apparent extension of the federal common law of nuisance to encompass actions for damages by relying on the inherent power of the courts to devise common law remedies appropriate to the facts in each case.⁴³ This ruling reveals a perceptive awareness that at this early stage in the evolution of the doctrine, courts should not establish rigid limits on its scope without experience in applying it to the wide range of situations in which it will inevitably arise. For example, in cases like Evansville, in which the pollution source complained of has long since been abated, an injunction against further discharges would be at best symbolic. Damages provide the only meaninful means of making the plaintiffs whole. Moreover, the "equitable" doctrine of nuisance has in the past recognized other situations in which monetary damages provide the most appropriate remedy.⁴⁴

Two other relatively uncharted areas of the federal common law of nuisance will merit some attention after Evansville. First, what is the scope of the waters to which it applies? The case law supports a range of positions, from limiting the law solely to interstate waters to extending its reach to all navigable waters of the United States.⁴⁵ The latter approach is consistent with the policies underlying the Federal Water Pollution Control Act, which extends to all navigable waters subject to Congress' powers under the Commerce Clause,⁴⁶ and is therefore entitled to some presumptive weight.⁴⁷ However, a limitation on the common law strictly to interstate waters appears more reflective of the history and policies of the doctrine. Specifically, such an interpretation is based on the recognition that there will inevitably be conflicts between neighboring states regarding differing standards of environmental quality. Such conflicts should be resolved by a neutral arbiter applying uniform standards. Where pollution occurs within one state, on the other hand, it is preferable to have that state apply its own standards. There is thus no compelling justification for extending the federal common law of nuisance to all navigable waters.

Another unexplored (and potentially explosive) issue is whether the new federal common law should apply to interstate air pollution. Advocates of such an extension⁴⁸ have considerable support not only within the text of Justice Douglas' opinion in Illinois,⁴⁹ but in other decisions as well.⁵⁰ Indeed, the facts in the seminal case of Georgia v. Tennessee Copper Co.⁵¹ dealt solely with air pollution. While air pollution and water pollution may present courts with different problems, such problems do not refute the persuasive legal and policy arguments favoring application of the federal common law of muisance to air pollution. They simply show that in such cases the courts, sitting as courts of equity, will have to determine violations and administer relief with the utmost sensitivity and forethought.

Conclusion

In time, City of Evansville v. Kentucky Liquid Recycling, Inc. may come to be viewed as marking a turning point in the federal law of pollution control.First, the opinion significantly restricts the prospects for citizen litigation based on implied causes of action under the federal water pollution laws. The Seventh Circuit was the first to address the implications of the Supreme Court's recent pronouncements on implied causes of action, and insofar as it places increased emphasis on the question of whether the plaintiff is among the specifically intended beneficiaries of the statute relied upon, it raises even higher the barricades to such suits in the environmental area. Additionally, the court seems to have laid the foundation for a presumption that statutes featuring citizen suit provisions do not support implied private rights of action. The opinion treads old, if still disputed, ground in denying plaintiffs' right to sue under the Rivers and Harbors Act, but the decision is a watershed of sorts in denying the right to seek damages, class actions, or redress for past pollution under the FWPCA.

However, after limiting the availability of remedies derived from statutory law, the opinion went on to expand dramatically the opportunity to obtain complete relief under the rubric of federal common law. The decision thus sets the stage for the creation of an alternate set of legal rights and remedies, to be applied with all the [9 ELR 10173] flexibility inherent in the tradition of equity, with which to fill the gaps in the patchwork of federal pollution control statutes. Naturally, if and when Congress expands existing legislation to cover these gaps, it will supplant the common law:

But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance ….⁵²

To the extent that any new legislation provides less than comprehensive protection from pollution-caused injuries, the federal common law of nuisance may serve as a potent legal tool for those seeking auxiliary relief.

1. 406 U.S. 91, 2 ELR 20201 (1972).

2. 28 U.S.C. § 1331(a).

3. 599 F.2d 151, 9 ELR 20347 (7th Cir. Apr. 26, 1979), aff'g in part and rev'g in part Illinois v. City of Milwaukee, __ F. Supp. __, 8 ELR 20503 (N.D. Ill. 1978), petition for cert. filed, 48 U.S.L.W. 3155 (U.S. Sept. 11, 1979) (No. 79-408). See generally, Comment, Illinois v. City of Milwaukee Revisited: Seventh Circuit Charts Important Role for Federal Common Law of Nuisance, 9 ELR 10087 (May 1979).

4. __ F.2d __, 9 ELR 20679 (7th Cir. Aug. 9, 1979), aff'g in part and rev'g in part City of Evansville v. Kentucky Liquid Recycling, Inc., No. EV 77-76-C (S.D. Ind. 1978) (unreported opinion). A copy of the full text of the district court's opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1188).

5. 42 U.S.C. §§ 1311, 1317, 1319, ELR STAT. & REG. 42123-30.

6. United States v. Distler, 9 ELR 20700 (W.D. Ky. Sept. 14, 1979).

7. 33 U.S.C. §§ 401-466n, ELR STAT. & REG. 41141.

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

9. 42 U.S.C. §§ 300f-300j-10, ELR STAT. & REG. 41301.

10. 33 U.S.C. § 407, ELR STAT. & REG. 41142.

11. Section 17, 33 U.S.C. § 413, ELR STAT. & REG. 41143.

12. The courts are sharply divided on the question of whether § 13 authorizes a private right of action. Decisions answering the question in the affirmative include: Alameda Conservation Ass'n v. California, 437 F.2d 1087, 1 ELR 20097 (9th Cir. 1971); Puente de Reynosa v. McAllen, 357 F.2d 453 (5th Cir. 1956); People ex rel. Scott v. Hoffmann, 425 F. Supp. 71, 7 ELR 20287 (S.D. Ill. 1977); Potomac River Ass'n, Inc. v. Lundeberg Maryland Seamanship School, Inc., 402 F. Supp. 344, 5 ELR 20389 (D. Md. 1975) (implied right of action under § 10 of Act); Sierra Club v. Morton, 400 F. Supp. 610 (N.D. Cal. 1975) (implied right of action under §§ 9 and 10 of Act). Contra, Connecticut Action Now v. Roberts Plating Co., 457 F.2d 81, 2 ELR 20157 (2d Cir. 1972), aff'g 330 F. Supp. 65, 1 ELR 20370 (D. Conn. 1971); Red Star Towing & Transp. Co. v. Dep't of Transp., 423 F.2d 104 (3d Cir. 1970); Township of Long Beach v. City of New York, 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 7 ELR 20149 (D. Conn. 1976).

13. FWPCA § 505, 33 U.S.C. § 1365, ELR STAT. & REG. 42147.

14. Section 505(b), 33 U.S.C. § 1365(b), ELR STAT. & REG. 42147.

15. On the date of the district court's decision, one other court had upheld a municipality's right to sue under the federal common law of nuisance. Township of Long Beach v. City of New York, 445 F. Supp. 1203, 1314, 8 ELR 20453, 20457 (D.N.J. 1978). The Evansville court may not have been aware of this ruling, however, in that it was issued only six weeks earlier and not reported for several months.

16. The Safe Drinking Water Act, 42 U.S.C. §§ 300f-300j-10, ELR STAT. & REG. 41301, authorizes the Administrator of the Environmental Protection Agency to prescribe maximum contaminant levels in drinking water and appropriate treatment techniques. The court held that the statute did not "even arguably" support plaintiffs' claimed cause of action. 9 ELR at 20682.

17. Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 5 ELR 20640 (2d Cir. 1975); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 792, 5 ELR 20046, 20696 (D.C. Cir. 1975); Conservation Soc'y of Southern Vermont, Inc. v. Secretary of Transp., 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974), vacated on other grounds, 423 U.S. 809, 6 ELR 20068 (1975).

18. 5 U.S.C. § 706, ELR STAT. & REG. 41005.

19. The court made it clear, however, that it would continue to adhere to its decision in City of Highland Park v. Train, 519 F.2d 681, 5 ELR 20408 (7th Cir. 1975) (failure to comply with notice requirement deprives plaintiff of cause of action), cert. denied, 424 U.S. 927 (1976).

20. In Cort v. Ash, 422 U.S. 66 (1975), the Supreme Court set out a four-part test for determining whether there is an implied private right of action to enforce a federal statute which does not on its face authorize such suits. Under that formula, a private party asserting an implied right of action must show that:

(1) he or she belongs to the class for whose especial benefit the provision was enacted,

(2) the legislative history supports the existence of private enforcement suits,

(3) such suits are consistent with the overall legislative scheme, and

(4) the nature of the litigation is not such that it has traditionally been or is appropriately brought in state court. 422 U.S. at 78. [Emphasis in original.]

In two cases decided this year, the Court reaffirmed the validity of the four-part test established in Cort, but applied it in a noticeably restricted manner. See Touche Ross & Co. v. Redington, __ U.S. __, 47 U.S.L.W. 4732 (1979); Cannon v. Univ. of Chicago, __ U.S. __, 47 U.S.L.W. 4549 (1979).

21. See Wyandotte Transp. Co. v. United States, 389 U.S. 191, 201 (1967).

22. Rivers and Harbors Act § 17, 33 U.S.C. § 413, ELR STAT. & REG. 41143.

23. FWPCA § 505, 33 U.S.C. § 1365, ELR STAT. & REG. 42147. As noted supra, plaintiffs had been held unable to sue directly under this provision for failure to comply with its 60-day notice requirement.

24. In Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1906), Justice Holmes described the interest of each state in protecting the quality of its environment in its capacity as a "quasi-sovereign":

In that capacity the State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.

25. U.S. CONST. art. III, § 2, cl. 2; 28 U.S.C. § 1251(a)(1). See Illinois v. City of Milwaukee, 406 U.S. 91, 93, 2 ELR 20201-02 (1972).

26. See Bell v. Hood, 327 U.S. 678, 684 (1946):

[W]here federally-protected rights have been invaded, it has been the rule since the beginning that courts will be alert to adjust their remedies to grant the necessary relief.

27. 200 U.S. 496 (1906).

28. 206 U.S. 230 (1907).

29. Missouri v. Illinois, 200 U.S. at 520; Georgia v. Tennessee Copper Co., 206 U.S. at 238.

30. 441 F.2d 236, 1 ELR 20089 (10th Cir. 1971) (suit by State of Texas for injunctive relief from contamination of water supplies due to pesticide runoff from New Mexican ranches).

31. Id. at 236, 1 ELR at 20090.

32. 406 U.S. 91, 2 ELR 20201 (1972).

33. Id. at 103, 2 ELR at 20204. The doctrine of Erie R.R. v. Tompkins, 304 U.S. 64 (1938) is widely acknowledged to be inapposite to substantive issues arising under the federal common law of nuisance. See Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U.L. REV. 383, 405 (1964). See also Illinois v. City of Milwaukee, 406 U.S. at 405 n.7, 2 ELR at 20204 n.7; Hinderlider v. La Plata Co., 304 U.S. 92, 110 (1938) (decided same day as Erie; apportionment of the waters of an interstate stream involves questions of "federal common law upon which neither the statutes of either state can be conclusive").

34. 406 U.S. at 405 n.6, ELR at 20204 n.6.

35. Compare Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 6 ELR 20703 (4th Cir. 1976) (private parties may not sue under federal common law of nuisance) with Stream Pollution Control Bd. v. United States Steel Corp., 512 F.2d 1036, 5 ELR 20261 (7th Cir. 1975) (suit by private party under federal common law not "wholly insubstantial and frivolous"); Township of Long Beach v. City of New York, 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978) (municipality entitled to invoke doctrine). See also United States v. Stoeco Homes, Inc., 498 F.2d 597, 4 ELR 20390 (3d Cir. 1974) (United States may sue under federal common law); accord, United States v. United States Steel Corp., 356 F. Supp. 556, 3 ELR 20204 (D. Ill. 1973).

36. Compare Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 5 ELR 20596 (8th Cir. 1975); Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006,3 ELR 20703 (4th Cir. 1973); Parsell v. Shell Oil Co., 421 F. Supp. 1275, 7 ELR 20149 (D. Conn. 1976) (interstate effects must be alleged) with United States v. Ira S. Bushey & Sons, Inc., 363 F. Supp. 110, 4 ELR 20071 (D. Vt. 1973) (federal common law applies to navigable, intrastate waters).

37. __ F.2d __, 9 ELR 20679 (7th Cir. Aug. 9, 1979).

38. 9 ELR at 20684.

39. 9 ELR at 20683. See Illinois v. City of Milwaukee, 406 U.S. at 105 n.6, 2 ELR at 20205 n.6.

40. See Township of Long Beach v. City of New York, 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978), decided one year prior to the Seventh Circuit's opinion in Evansville, in which the district court ruled that the plaintiff municipality had stated a valid claim under federal common law of nuisance. See also Comment, The Expansion of Federal Common Law and Federal Question Jurisdiction to Interstate Pollution, 10 HOUS. L. REV. 121, 130 (1972); Note, Environmental Law — Cause of Action Under Federal Common Law for Pollution of Interstate Waters, 77 DICK. L. REV. 451 (1973); note, Jurisdiction — Federal Common Law Under § 1331 (a), 52 NEB. L. REV. 301 (1973).

41. See note 39, supra.

42. In Illinois the Court advised the lower courts to look to federal legislation when determining the scope of the federal common law:

While the various federal environmental protection statutes will not mark the outer bounds of the federal common law, they may provide useful guidelines in fashioning such rules of decision.

406 U.S. at 103 n.5, 2 ELR at 20204 n.5. Pursuant to these instructions, the lower courts have relied on the FWPCA in shaping the substantive content of the doctrine:

In applying the federal common law of nuisance in a water pollution case, a court should not ignore the [FWPCA] but should look to its policies and principles for guidance.

Illinois v. City of Milwaukee, 599 F.2d 151, 164, 9 ELR 20347, 20353 (7th Cir. 1979). See also Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006, 1013, 6 ELR 20703, 20706 (4th Cir. 1976) (Butzner, J., dissenting). Moreover, the Act specifically provides that its citizens suit provision is not to displace common law actions. FWPCA § 505(e), 33 U.S.C. § 1365(e), ELR STAT. & REG. 42147.

43. 9 ELR at 20684.

44. See Boomer v. Atlantic Cement Co., 26 N.Y.2d 309, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970); Comment, Federal Jurisdiction and Federal Common Law — Environmental Law — Public Nuisance Suits Concerning Interstate Water Pollution, 49 DENVER L.J. 609, 618 (1973).

45. See note 36, supra.

46. Leslie Salt Co. v. Froehlke, 578 F.2d 742, 755, 8 ELR 20480, 40485-87 (9th Cir. 1978); United States v. Phelps Dodge Corp., 391 F. Supp. 1181, 5 ELR 20318 (D. Ariz. 1975).

47. See note 42, supra.

48. See, e.g., W. RODGERS, ENVIRONMENTAL LAW § 2.12 at 152 (1977).

49. 406 U.S. at 103, 2 ELR at 20204.

50. See Washington v. General Motors Corp., 409 U.S. 109, 2 ELR 20183 (1972), stating that "[a]ir pollution is, of course, one of the most notorious types of public nuisance in modern experience," 2 ELR 20184, and that the plaintiffs were free, on remand, to challenge defendants' emissions of noxious industrial fumes as nuisances under the federal common law of nuisance. 2 ELR at 20184 n.2. See also Texas v. Pankey, 441 F.2d 236, 240, 241, 1 ELR 20089, 20090 (10th Cir. 1971).

51. 206 U.S. 230 (1907).

52. Illinois v. City of Milwaukee, 406 U.S. at 107, 2 ELR at 20205.