Ouellette v. International Paper Co.

No. 85-7506 (2d Cir. November 4, 1985)

The court affirms a district court decision, 15 ELR 20377, that the Federal Water Pollution Control Act authorizes a tort action by Vermont residents for pollution from a New York facility to be brought under Vermont law, that the suit is not barred by settlement agreements in an earlier suit brought by Vermont concerning the pollution, and that plaintiffs alleged sufficient special damages to state a claim for nuisance. The court adopts the reasoning of the district judge on all points except its conclusion that settlements between New York and Vermont were incapable of precluding plaintiff's suit since there was no judicial or congressional approval. The district court's alternative rationale, based on differences between the language of these settlements and others that held tort actions precluded in another case, is enough to support its decision.

Counsel for Plaintiffs-Appellees
Susan F. Eaton
Langrock, Sperry, Parker & Wool
15 S. Pleasant St., P.O. Drawer 351, Middlebury VT 05753-0351
(802) 388-6356

Counsel for Defendant-Appellant
James W. B. Benkard
Davis, Polk & Wardwell
One Chase Manhattan Plaza, New York NY 10005
(212) 530-4000

Before Kaufman, Pratt, and Miner, JJ.

[16 ELR 20012]

Per Curiam

By order dated February 5, 1985, the district court, Albert W. Coffrin, Chief Judge, denied defendant's motion pursuant to Fed. R. Civ. P. 12(c) and 56(b) to dismiss plaintiffs' cause of action concerning water pollution. Ouellette v. International Paper Co., 602 F. Supp. 264 (D. Vt. 1985). The district court held (i) that the Federal [16 ELR 20013] Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. authorizes this action involving interstate water pollution claims by owners of property in Vermont against an effluent producer located in New York to be maintained in the courts and under the common law of the State of Vermont, where the alleged injuries occurred; (ii) that neither the Two-Party Agreement nor the Four-Party Agreement entered into by the State of Vermont in settlement of Vermont v. New York, 419 U.S. 955 (1974), bars this suit; and (iii) that plaintiffs have alleged sufficient special damages to state a claim for nuisance.

We affirm the order appealed from, essentially for the reasons set forth in Chief Judge Coffrin's thorough opinion, which we adopt in all respects except one. Chief Judge Coffrin distinguished Badgley v. City of New York, 606 F.2d 358 (2d Cir. 1979), cert. denied, 447 U.S. 907 (1980), finding that the settlement contract at bar differed "in two important ways" from the settlement decree and compact there. Ouellette, 602 F. Supp. at 273-74. We view his second distinguishing reason, grounded in the scope, terms, and language of the respective agreements, and, particularly, the differences in their "saving clauses", to be sufficient to remove this case from the Badgley principle. We express no view on what weight, if any, should be given to the first distinguishing reason mentioned by Chief Judge Coffrin: that unlike the settlement order and compact in Badgley, the contractual resolution of the prior dispute here received neither congressional nor judicial approval.

Affirmed.