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U.S. Supreme Court

City of Milwaukee v. Illinois, 451 U.S. 304 (1981)

City of Milwaukee v. Illinois

No. 7908

Argued December 2, 1980

Decided April 28, 1981

451 U.S. 304


In original proceedings brought by respondent State of Illinois, alleging that petitioners -- the city of Milwaukee, its Sewerage Commission, and Milwaukee County's Metropolitan Sewerage Commission -- and other Wisconsin cities were polluting Lake Michigan because of overflows of untreated sewage from their sewer systems and discharges of inadequately treated sewage from their treatment plants, this Court recognized the existence of a federal "common law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution, but declined to exercise original jurisdiction because of the availability of a lower court action. Illinois v. Milwaukee, 406 U. S. 91. Accordingly, Illinois filed suit (and respondent State of Michigan intervened) in Federal District Court seeking abatement, under federal common law, of the public nuisance petitioners were allegedly creating by their discharges. Five months later, Congress passed the Federal Water Pollution Control Act (Act) Amendments of 1972, which established a new system of regulation making it illegal to discharge pollutants into the Nation's waters except pursuant to a permit that incorporated as conditions regulations of the Environmental Protection Agency (EPA) establishing specific effluent limitations. Permits are issued either by the EPA or a qualifying state agency, and petitioners operated their sewer systems under permits issued by the Wisconsin Department of Natural Resources (DNR). While the federal court action was pending, DNR brought an action in a Wisconsin state court to compel compliance with the permits' requirements, and the state court entered a judgment requiring discharges from the treatment plants to meet effluent limitations in the permits and establishing a timetable for additional construction to control sewage overflows. Thereafter, the District Court found that the existence of a federal common law nuisance had been proved, and entered a judgment specifying effluent limitations for treated sewage and a construction timetable to eliminate overflows that went considerably beyond the terms of petitioners' permits and the state court's enforcement order. The Court of Appeals, ruling that the 1972 Amendments of the Act had not preempted the federal common law of nuisance, upheld the District Court's order as to elimination of overflows, but reversed insofar as the District chanrobles.com-red

Page 451 U. S. 305

Court's effluent limitations on treated sewage were more stringent than those in the petitioners' permits and applicable EPA regulations.


1. Federal common law in an area of national concern is resorted to in the absence of an applicable Act of Congress, and because the Court is compelled to consider federal questions which cannot be answered from federal statutes alone. As recognized in Illinois v. Milwaukee, supra, at 451 U. S. 107, when Congress addresses a question previously governed by a decision rested on federal common law, the need for such an unusual exercise of lawmaking by federal courts disappears. Unlike the determination of whether federal law preempts state law, which requires evidence of a clear and manifest congressional purpose to preempt state law, the determination of whether federal statutory or federal common law governs starts with the assumption that it is for Congress, not federal courts, to articulate appropriate standards to be applied as a matter of federal law. Pp. 451 U. S. 312-317.

2. No federal common law remedy was available to respondents in this case. Pp. 451 U. S. 317-332.

(a) At least so far as concerns respondents' claims, Congress, which viewed the 1972 Amendments of the Act as a "total restructuring" and "complete rewriting" of the existing water pollution legislation considered in Illinois v. Milwaukee, has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. Pp. 451 U. S. 317-319.

(b) As contemplated by Congress, the problem of effluent limitations for discharges from petitioners' treatment plants has been thoroughly addressed through the administrative scheme established by Congress, and thus there is no basis for a federal court, by reference to federal common law, to impose more stringent limitations. Similarly, the overflows of untreated sewage from petitioners' sewer system have been addressed by the regulatory regime established by the Act, through DNR's imposing conditions suited to further the Act's goals and bringing an enforcement action specifically addressed to the overflow problem. Nor does the absence of overflow effluent limitations in the permits and the state court enforcement order render federal common law available, since the relevant question is not what concentration of various pollutants will be permitted, but what degree of control will be required in preventing overflows and ensuring that the sewage undergoes treatment. Decision is to be made by the appropriate chanrobles.com-red

Page 451 U. S. 306

agency on a case-by-case basis, through the permit procedure, as was done here. Pp. 451 U. S. 319-324.

(c) When Illinois v. Milwaukee was decided, Illinois did not have any forum in which to protect its interests unless federal common law were created. However, in the 1972 Amendments, Congress provided ample opportunity for a State affected by decisions of a neighboring State's permit-granting agency to seek redress. Respondents did not avail themselves of the statutory procedures. Pp. 451 U. S. 325-326.

(d) Section 510 of the Act, which provides that nothing in the Act shall preclude States from adopting and enforcing limitations on the discharge of pollutants more stringent than those adopted under the Act, does not indicate congressional intent to preserve the federal common law remedy recognized in Illinois v. Milwaukee. Nothing in § 510 suggests that the States may call upon federal courts to employ federal common law to establish more stringent standards applicable to out-of-state discharges. Nor does a subdivision in the citizen suit provision of the Act -- § 505(e), which provides that nothing "in this section" shall limit any other remedies which might exist -- indicate congressional intent to preserve the federal common law remedy. It does not mean that the Act, as a whole, does not supplant formerly available federal common law actions, but means only that the particular section authorizing citizen suits does not do so. Pp. 451 U. S. 327-329.

(e) The legislative history of the 1972 Amendments with regard to certain discussions as to provisions relating to the effect of the amendments on pending lawsuits is not relevant. The discussions focused on suits brought under federal statutes, not federal common law, related to suits brought by or against the Federal Government, and did not suggest any intent concerning the continued validity of federal common law. Pp. 451 U. S. 329-332.

599 F.2d 151, vacated and remanded.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J.,and BRENNAN, STEWART, WHITE, and POWELL, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which MARSHALL and STEVENS, JJ., joined, post, p. 451 U. S. 332. chanrobles.com-red

Page 451 U. S. 307


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