The State of Ohio filed a motion for leave to file a bill of
complaint invoking the Court's original jurisdiction against
defendant companies, incorporated in Michigan, Delaware, and
Canada, to abate an alleged nuisance resulting in the contamination
and pollution of Lake Erie from the dumping of mercury into its
tributaries. The Court declines to exercise its jurisdiction in
this case since the issues are bottomed on local law that the Ohio
courts are competent to consider; several national and
international bodies are actively concerned with the pollution
problems involved here; and the nature of the case requires the
resolution of complex, novel, and technical factual questions that
do not implicate important problems of federal law, which are the
primary responsibility of the Court. Pp. 401 U. S.
HARLAN, J., delivered the opinion of the Court, in which BURGER,
C.J., and BLACK, BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN,
JJ., joined. DOUGLAS, J., filed a dissenting opinion,
p. 401 U. S.
Page 401 U. S. 494
MR. JUSTICE HARLAN delivered the opinion of the Court.
By motion for leave to file a bill of complaint, Ohio seeks to
invoke this Court's original jurisdiction. Because of the
importance and unusual character of the issues tendered, we set the
matter for oral argument, inviting the Solicitor General to
participate and to file a brief on behalf of the United States, as
For reasons that follow, we deny the motion
for leave to file.
The action, for abatement of a nuisance, is brought on behalf of
the State and its citizens, and names as defendants Wyandotte
Chemicals Corp. (Wyandotte), Dow Chemical Co. (Dow America), and
Dow Chemical Company of Canada, Ltd. (Dow Canada). Wyandotte is
incorporated in Michigan and maintains its principal office and
place of business there. Dow America is incorporated in Delaware,
has its principal office and place of business in Michigan, and
owns all the stock of Dow Canada. Dow Canada is incorporated, and
does business, in Ontario. A majority of Dow Canada's directors are
residents of the United States.
The complaint alleges that Dow Canada and Wyandotte have each
dumped mercury into streams whose courses ultimately reach Lake
Erie, thus contaminating and polluting that lake's waters,
vegetation, fish, and wildlife, and that Dow America is jointly
responsible for the acts of its foreign subsidiary. Assuming the
Page 401 U. S. 495
ability to prove these assertions, Ohio seeks a decree: (1)
declaring the introduction of mercury into Lake Erie's tributaries
a public nuisance; (2) perpetually enjoining these defendants from
introducing mercury into Lake Erie or its tributaries; (3)
requiring defendants either to remove the mercury from Lake Erie or
to pay the costs of its removal into a fund to be administered by
Ohio and used only for that purpose; (4) directing defendants to
pay Ohio monetary damages for the harm done to Lake Erie, its fish,
wildlife, and vegetation, and the citizens and inhabitants of
Original jurisdiction is said to be conferred on this Court by
Art. III of the Federal Constitution. Section 2, cl. 1, of that
"The judicial Power shall extend . . . to Controversies . . .
between a State and Citizens of another State . . . and between a
State . . . and foreign . . . Citizens or Subjects."
Section 2, cl. 2, provides: "In all Cases . . . in which a State
shall be Party, the supreme Court shall have original
Jurisdiction." Finally, 28 U.S.C. § 1251(b) provides:
"The Supreme Court shall have original but not exclusive
jurisdiction of . . . (3) All actions or proceedings by a State
against the citizens of another State or against aliens."
While we consider that Ohio's complaint does state a cause of
action that falls within the compass of our original jurisdiction,
we have concluded that this Court should nevertheless decline to
exercise that jurisdiction.
That we have jurisdiction seems clear enough. [Footnote 1
] Beyond doubt, the complaint, on
its face, reveals the existence of a
Page 401 U. S. 496
genuine "case or controversy" between one State and citizens of
another, as well as a foreign subject. Diversity of citizenship is
absolute. Nor is the nature of the cause of action asserted a bar
to the exercise of our jurisdiction. While we have refused to
entertain, for example, original actions designed to exact
compliance with a State's penal laws, Wisconsin v. Pelican Ins.
Co., 127 U. S. 265
(1888), or that seek to embroil this tribunal in "political
questions," Mississippi v.
4 Wall. 475 (1867); Georgia v.
6 Wall. 50 (1868), this Court has often
adjudicated controversies between States and between a State and
citizens of another State seeking to abate a nuisance that exists
in one State yet produces noxious consequences in another. See
Missouri v. Illinois, 180 U. S. 208
(1901) (complaint filed), 200 U. S. 200
496 (1906) (final judgment); Georgia v. Tennessee Copper
Co., 206 U. S. 230
(1907); New York v. New Jersey, 256 U.
(1921); New Jersey v. New York City,
283 U. S. 473
(1931). In short, precedent leads almost ineluctably to the
conclusion that we are empowered to resolve this dispute in the
first instance. [Footnote
Ordinarily, the foregoing would suffice to settle the issue
presently under consideration: whether Ohio should be granted leave
to file its complaint. For it is a time-honored
Page 401 U. S. 497
maxim of the Anglo-American common law tradition that a court
possessed of jurisdiction generally must exercise it.
6 Wheat. 264, 19 U. S. 404
(1821). Nevertheless, although it may initially have been
contemplated that this Court would always exercise its original
jurisdiction when properly called upon to do so, it seems evident
to us that changes in the American legal system and the development
of American society have rendered untenable, as a practical matter,
the view that this Court must stand willing to adjudicate all or
most legal disputes that may arise between one State and a citizen
or citizens of another, even though the dispute may be one over
which this Court does have original jurisdiction.
As our social system has grown more complex, the States have
increasingly become enmeshed in a multitude of disputes with
persons living outside their borders. Consider, for example, the
frequency with which States and nonresidents clash over the
application of state laws concerning taxes, motor vehicles,
decedents' estates, business torts, government contracts, and so
forth. It would indeed be anomalous were this Court to be held out
as a potential principal forum for settling such controversies. The
simultaneous development of "long-arm jurisdiction" means, in most
instances, that no necessity impels us to perform such a role. And
the evolution of this Court's responsibilities in the American
legal system has brought matters to a point where much would be
sacrificed, and little gained, by our exercising original
jurisdiction over issues bottomed on local law. This Court's
paramount responsibilities to the national system lie almost
without exception in the domain of federal law. As the impact on
the social structure of federal common, statutory, and
constitutional law has expanded, our attention has necessarily been
drawn more and more to such matters. We have no claim
Page 401 U. S. 498
to special competence in dealing with the numerous conflicts
between States and nonresident individuals that raise no serious
issues of federal law.
This Court is, moreover, structured to perform as an appellate
tribunal, ill-equipped for the task of factfinding, and so forced,
in original cases, awkwardly to play the role of factfinder without
actually presiding over the introduction of evidence. Nor is the
problem merely our lack of qualifications for many of these tasks
potentially within the purview of our original jurisdiction; it is
compounded by the fact that, for every case in which we might be
called upon to determine the facts and apply unfamiliar legal
norms, we would unavoidably be reducing the attention we could give
to those matters of federal law and national import as to which we
are the primary overseers.
Thus, we think it apparent that we must recognize
"the need [for] the exercise of a sound discretion in order to
protect this Court from an abuse of the opportunity to resort to
its original jurisdiction in the enforcement by States of claims
against citizens of other States."
Massachusetts v. Missouri, 308 U. S.
, 308 U. S. 19
(1939), opinion of Chief Justice Hughes. See also Georgia v.
Pennsylvania R. Co., 324 U. S. 439
324 U. S. 464
465 (1945), and id.
at 324 U. S.
-471 (dissenting opinion). [Footnote 3
] We believe, however, that
Page 401 U. S. 499
the focus of concern embodied in the above-quoted statement of
Chief Justice Hughes should be somewhat refined. In our opinion, we
may properly exercise such discretion, not simply to shield this
Court from noisome, vexatious, or unfamiliar tasks, but also, and
we believe principally, as a technique for promoting and furthering
the assumptions and value choices that underlie the current role of
this Court in the federal system. Protecting this Court, per
is, at best, a secondary consideration. What gives rise to
the necessity for recognizing such discretion is preeminently the
diminished societal concern in our function as a court of original
jurisdiction and the enhanced importance of our role as the final
federal appellate court. A broader view of the scope and purposes
of our discretion would inadequately take account of the general
duty of courts to exercise that jurisdiction they possess. Thus, at
this stage, we go no further than to hold that, as a general
matter, we may decline to entertain a complaint brought by a State
against the citizens of another State or country only where we can
say with assurance that (1) declination of jurisdiction would not
disserve any of the principal policies underlying the Article III
jurisdictional grant, and (2) the reasons of practical wisdom that
persuade us that this Court is an inappropriate forum are
consistent with the proposition that our discretion is legitimated
by its use to keep this aspect of the Court's functions attuned to
its other responsibilities.
In applying this analysis to the facts here presented, we
believe that the wiser course is to deny Ohio's motion for leave to
file its complaint.
Page 401 U. S. 500
Two principles seem primarily to have underlain conferring upon
this Court original jurisdiction over cases and controversies
between a State and citizens of another State or country. The first
was the belief that no State should be compelled to resort to the
tribunals of other States for redress, since parochial factors
might often lead to the appearance, if not the reality, of
partiality to one's own. Chisholm v.
2 Dall. 419, 2 U. S. 475
(1793); Wisconsin v. Pelican Ins. Co.,
127 U.S. at
127 U. S. 289
The second was that a State, needing an alternative forum, of
necessity had to resort to this Court in order to obtain a tribunal
competent to exercise jurisdiction over the acts of nonresidents of
the aggrieved State.
Neither of these policies is, we think, implicated in this
lawsuit. The courts of Ohio, under modern principles of the scope
of subject matter and in personam
jurisdiction, have a
claim as compelling as any that can be made out for this Court to
exercise jurisdiction to adjudicate the instant controversy, and
they would decide it under the same common law of nuisance upon
which our determination would have to rest. In essence, the State
has charged Dow Canada and Wyandotte with the commission of acts,
albeit beyond Ohio's territorial boundaries, that have produced
and, it is said, continue to produce, disastrous effects within
Ohio's own domain. While this Court, and doubtless Canadian courts,
if called upon to assess the validity of any decree rendered
against either Dow Canada or Wyandotte, would be alert to ascertain
whether the judgment rested upon an even-handed application of
justice, it is unlikely that we would totally deny Ohio's
competence to act if the allegations made here are proved true.
See, e.g., International Shoe Co. v. Washington,
326 U. S. 310
Page 401 U. S. 501
United States v. Aluminum Co. of America,
148 F.2d 416
(CA2 1945); ALI, Restatement of the Foreign Relations Law of the
United States 2d § 18. And while we cannot speak for Canadian
courts, we have been given no reason to believe they would be less
receptive to enforcing a decree rendered by Ohio courts than one
issued by this Court. Thus, we do not believe exercising our
discretion to refuse to entertain this complaint would undermine
any of the purposes for which Ohio was given the authority to bring
Our reasons for thinking that, as a practical matter, it would
be inappropriate for this Court to attempt to adjudicate the issues
Ohio seeks to present are several. History reveals that the course
of this Court's prior efforts to settle disputes regarding
interstate air and water pollution has been anything but smooth. In
Missouri v. Illinois, 200 U. S. 496
200 U. S.
-522 (1906), Justice Holmes was at pains to
underscore the great difficulty that the Court faced in attempting
to pronounce a suitable general rule of law to govern such
controversies. The solution finally grasped was to saddle the party
seeking relief with an unusually high standard of proof and the
Court with the duty of applying only legal principles "which [it]
is prepared deliberately to maintain against all considerations on
the other side," id.
at 200 U. S. 521
an accommodation which, in cases of this kind, the Court has found
necessary to maintain ever since. [Footnote 4
] See, e.g., New
Page 401 U. S. 502
York v. New Jersey,
256 U.S. at 256 U. S. 309
Justice Clarke's closing plea in New York v. New Jersey,
at 256 U. S. 313
strikingly illustrates the sense of futility that has accompanied
this Court's attempts to treat with the complex technical and
political matters that inhere in all disputes of the kind at
"We cannot withhold the suggestion, inspired by the
consideration of this case, that the grave problem of sewage
disposal presented by the large and growing populations living on
the shores of New York Bay is one more likely to be wisely solved
by cooperative study and by conference and mutual concession on the
part of representatives of the States so vitally interested in it
than by proceedings in any court however constituted."
The difficulties that ordinarily beset such cases are severely
compounded by the particular setting in which this controversy has
reached us. For example, the parties have informed us, without
contradiction, that a number of official bodies are already
actively involved in regulating the conduct complained of here. A
Michigan circuit court has enjoined Wyandotte from operating its
mercury cell process without judicial authorization. The company
is, moreover, currently utilizing a recycling process specifically
approved by the Michigan Water Resources Commission, and remains
subject to the continued scrutiny of that agency. Dow Canada
reports monthly to the Ontario Water Resources Commission on its
compliance with the commission's order prohibiting the company from
passing any mercury into the environment.
Additionally, Ohio and Michigan are both participants in the
Lake Erie Enforcement Conference, convened a year ago by the
Secretary of the Interior pursuant to the Federal Water Pollution
Control Act, 62 Stat. 1155,
Page 401 U. S. 503
as amended. The Conference is studying all forms and sources of
pollution, including mercury, infecting Lake Erie. The purpose of
this Conference is to provide a basis for concerted remedial action
by the States or, if progress in that regard is not rapidly made,
for corrective proceedings initiated by the Federal Government. 33
U.S.C. § 466g (1964 ed. and Supp. V). And the International Joint
Commission, established by the Boundary Waters Treaty of 1909
between the United States and Canada, 36 Stat. 2448, issued on
January 14, 1971, a comprehensive report, the culmination of a
six-year study carried out at the request of the contracting
parties, concerning the contamination of Lake Erie. That document
makes specific recommendations for joint programs to abate these
environmental hazards and recommends that the UC be given authority
to supervise and coordinate this effort.
In view of all this, 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.
The nature of the case Ohio brings here is equally
disconcerting. It can fairly be said that what is in dispute is not
so much the law as the facts. And the factfinding process we are
asked to undertake is, to say the least, formidable. We already
know, just from what has been placed before us on this motion, that
Lake Erie suffers from several sources of pollution other than
mercury; that the scientific conclusion that mercury is a serious
water pollutant is a novel one; that whether and to what extent the
existence of mercury in natural waters can safely or reasonably be
tolerated is a question for which there is presently no firm
answer; and that virtually no published research is available
Page 401 U. S. 504
how one might extract mercury that is in fact contaminating
water. Indeed, Ohio is raising factual questions that are
essentially ones of first impression to the scientists. The notion
that appellate judges, even with the assistance of a most competent
Special Master, might appropriately undertake at this time to
unravel these complexities is, to say the least, unrealistic. Nor
would it suffice to impose on Ohio an unusually high standard of
proof. That might serve to mitigate our personal difficulties in
seeking a just result that comports with sound judicial
administration, but would not lessen the complexity of the task of
preparing responsibly to exercise our judgment, or the serious
drain on the resources of this Court it would entail. Other factual
complexities abound. For example, the Department of the Interior
has stated that eight American companies are discharging, or have
discharged, mercury into Lake Erie or its tributaries. We would,
then, need to assess the business practices and relative
culpability of each to frame appropriate relief as to the one now
Finally, in what has been said, it is vitally important to
stress that we are not called upon by this lawsuit to resolve
difficult or important problems of federal law, and that nothing in
Ohio's complaint distinguishes it from any one of a host of such
actions that might, with equal justification, be commenced in this
Court. Thus, entertaining this complaint not only would fail to
serve those responsibilities we are principally charged with, but
could well pave the way for putting this Court into a quandary
whereby we must opt either to pick and choose arbitrarily among
similarly situated litigants or to devote truly enormous portions
of our energies to such matters.
To sum up, this Court has found even the simplest sort of
interstate pollution case an extremely awkward vehicle to manage.
And this case is an extraordinarily complex one both because of the
novel scientific issues of
Page 401 U. S. 505
fact inherent in it and the multiplicity of governmental
agencies already involved. Its successful resolution would require
primarily skills of factfinding, conciliation, detailed
coordination with -- and perhaps not infrequent deference to --
other adjudicatory bodies, and close supervision of the technical
performance of local industries. We have no claim to such expertise
or reason to believe that, were we to adjudicate this case and
others like it, we would not have to reduce drastically our
attention to those controversies for which this Court is a proper
and necessary forum. Such a serious intrusion on society's interest
in our most deliberate and considerate performance of our paramount
role as the supreme federal appellate court could, in our view, be
justified only by the strictest necessity, an element which is
evidently totally lacking in this instance.
What has been said here cannot, of course, be taken as
denigrating in the slightest the public importance of the
underlying problem Ohio would have us tackle. Reversing the
increasing contamination of our environment is manifestly a matter
of fundamental import and utmost urgency. What is dealt with above
are only considerations respecting the appropriate role this Court
can assume in efforts to eradicate such environmental blights. We
mean only to suggest that our competence is necessarily limited,
not that our concern should be kept within narrow bounds.
Ohio's motion for leave to file its complaint is denied without
prejudice to its right to commence other appropriate judicial
It is so ordered.
The matter is well treated in the Solicitor General's
brief, which satisfactorily deals with a number of
considerations which we find it unnecessary to discuss in this
While we possess jurisdiction over Dow America and Wyandotte
simply on the basis of their citizenship, the problem with respect
to Dow Canada is quite different with regard to two major issues:
whether that foreign corporation has "contacts" of the proper sort
sufficient to bring it personally before us, and whether service of
process can lawfully be made upon Dow Canada. Were we to decide to
entertain this complaint, however, it seems reasonably clear that
the better course would be to reserve this aspect of the
jurisdictional issue pending ascertainment of additional facts,
rather than to resolve it now. Thus, for purposes of ruling on
Ohio's motion for leave to file its complaint, we treat the
question of jurisdiction over all three defendants as a unitary
In our view, the federal statute, 28 U.S.C. § 1251(b)(3),
providing that our original jurisdiction in cases such as these is
merely concurrent with that of the federal district courts,
reflects this same judgment. However, this particular case cannot
be disposed of by transferring it to an appropriate federal
district court, since this statute, by itself, does not actually
confer jurisdiction on those courts, see
Federal Courts 502 (2d ed.1970), and no other statutory
jurisdictional basis exists. The fact that there is diversity of
citizenship among the parties would not support district court
jurisdiction under 28 U.S.C. § 1332 because that statute does not
deal with cases in which a State is a party. Nor would federal
question jurisdiction exist under 28 U.S.C. § 1331. So far as it
appears from the present record, an action such as this, if
otherwise cognizable in federal district court, would have to be
adjudicated under state law. Erie R. Co. v. Tompkins,
304 U. S. 64
Justice Holmes' analysis appears to rest, in part, on the fact
that, in the case before him, the conduct complained of was the act
of a sovereign State. However, we see no reason why the
determination to impose a high standard of proof would not be
equally compelling in a case such as the one before us. Arguably,
the necessity for applying virtually unexceptionable legal
principles does not obtain where conduct never previously subjected
to state law scrutiny is involved, but this is not the case here.
MR. JUSTICE DOUGLAS, dissenting.
The complaint in this case presents basically a classic type of
case congenial to our original jurisdiction. It is
Page 401 U. S. 506
to abate a public nuisance. Such was the claim of Georgia
against a Tennessee company which was discharging noxious gas
across the border into Georgia. Georgia v. Tennessee Copper
Co., 206 U. S. 230
"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
of persons beyond its control, that the crops and orchards on its
hills should not be endangered from the same source."
at 206 U. S.
Dumping of sewage in an interstate stream, Missouri v.
Illinois, 200 U. S. 496
towing garbage to sea only to have the tides carry it to a State's
beaches, New Jersey v. New York City, 283 U.
, have presented analogous situations which the
Court has entertained in suits invoking our original jurisdiction.
The pollution of Lake Erie or its tributaries by the discharge of
mercury or compounds thereof, if proved, certainly creates a public
nuisance of a seriousness and magnitude which a State, by our
historic standards, may prosecute or pursue as parens
The suit is not precluded by the Boundary Waters Treaty of 1909,
36 Stat. 2448. Article IV provides that the "boundary waters . . .
shall not be polluted on either side to the injury of health or
property on the other." But there is no machinery for direct
enforcement of Art. IV.
Article VIII empowers the International Joint Commission to
"pass upon all cases involving the use or obstruction or
diversion of the waters with respect to which under Articles III
and IV . . . the approval of this Commission is required."
Those Articles specifically describe the type of projects for
which approval is required. For
Page 401 U. S. 507
example, Art. IV states that the
"[p]arties . . . will not permit the construction or maintenance
. . . of any remedial or protective works or any dams or other
obstructions . . . the effect of which is to raise the natural
level of waters on the other side of the boundary unless . . .
approved by the . . . Commission."
Significantly, the proscription of pollution, which immediately
follows this provision in Art. IV, does not mention approval or
action by the International Joint Commission.
Article X does vest the Commission with power to render binding
decisions on matters referred by consent of both parties. But Art.
X states that any joint reference
"on the part of the United States . . . will be by and with the
advice and consent of the Senate, and on the part of His Majesty's
Government with the consent of the Governor General in
In other words, so far as pollution is concerned, the Treaty
contains no provision for binding arbitration. Thus, it does not
evince a purpose on the part of the national governments of the
United States and Canada to exclude their States and Provinces from
seeking other remedies for water pollution. Indeed, Congress, in
later addressing itself to water pollution in the Federal Water
Pollution Control Act, 33 U.S.C. § 1151 (1970 ed.), said in §
"Nothing in this chapter shall be construed as impairing or in
any manner affecting any right or jurisdiction of the States with
respect to the waters (including boundary waters
) of such
This litigation, as it unfolds, will, of course, implicate much
federal law. The case will deal with an important portion of the
federal domain -- the navigable streams and the navigable inland
waters which are under the sovereignty of the Federal Government.
It has been clear
Page 401 U. S. 508
since Pollard's Lessee v.
3 How. 212, decided in 1845, that navigable
waters were subject to federal control. That paramount federal
dominion extends into the oceans beyond low tide. United States
v. California, 332 U. S. 19
Congress has enacted numerous laws reaching that domain. One of
the most pervasive is the Rivers and Harbors Act of 1899, 30 Stat.
1121, as amended, 33 U.S.C. § 403, which was before us in
United States v. Republic Steel Corp., 362 U.
. In that case, we read § 13 of the 1899 Act, 33
U.S.C. § 407, which forbids discharge of
"any refuse matter of any kind or description whatever other
than that flowing from streets and sewers and passing therefrom in
a liquid state"
as including particles in suspension. Id.
362 U. S.
In the 1930's, fish and wildlife legislation was enacted
granting the Secretary of the Interior various heads of
jurisdiction over the effects on fish and wildlife of "domestic
sewage, mine, petroleum, and industrial wastes, erosion silt, and
other polluting substances." See, e.g.,
16 U.S.C. § 665.
Among other things, the Secretary of the Interior through the Fish
and Wildlife Service gave advice to the Corps of Engineers as
respects the effects which proposed dredging or filling of
estuaries would have on fish or wildlife. [Footnote 2/1
Since that time, other changes have been made in the design of
the federal system of water control. The Federal Water Pollution
Control Act, as amended, 33 U.S.C. § 1151 (1970 ed.), gives broad
powers to the Secretary to take action respecting water pollution
on complaints of States, and other procedures to secure federal
abatement of the pollution. Ibid.
Page 401 U. S. 509
Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4331
(1964 ed., Supp. V), gives elaborate ecological directions to
federal agencies and supplies procedures for their enforcement.
On December 23, 1970, the President issued an Executive Order
] which correlates the
duties of the Corps of Engineers and the Administrator of the new
Environmental Protection Agency under the foregoing statutes. Under
that Executive Order, the Corps, in order "to regulate the
discharge of pollutants and other refuse matter into the navigable
waters of the United States or their tributaries," is directed
after consultation with the Administrator to amend its regulations
concerning issuance of permits. While the Corps is responsible for
granting or denying permits, § 2(a)(2), it must accept the findings
of the Administrator respecting "water quality standards," §
2(a)(2)(A). On December 31, 1970, the Corps gave notice of its new
proposed rules to govern discharges or deposits into navigable
waters. [Footnote 2/3
Yet the federal scheme is not preemptive of state action.
Section 1(b) of the Water Pollution Control Act declares that the
policy of Congress is "to recognize, preserve, and protect the
primary responsibilities and rights of the States in preventing and
controlling water pollution." 33 U.S.C. § 1151(b) (1970 ed.).
Section 10 provides that, except where the Attorney General has
actually obtained a court order of pollution abatement on behalf of
the United States, "State and interstate action to abate pollution
of . . . navigable waters . . . shall not . . . be displaced by
Federal enforcement action." § 10(b), 33 U.S.C. § 1160(b) (1970
The new Environmental Quality Improvement Act of 1970, 84 Stat.
114, 42 U.S.C. § 4371 (1970 ed.),
Page 401 U. S. 510
while stating the general policy of Congress in protecting the
environment, also states: "The primary responsibility for
implementing this policy rests with State and local governments."
42 U.S.C. § 4371(b)(2) (1970 ed.).
There is much complaint that, in spite of the arsenal of federal
power, little is being done. [Footnote
] That, of course, is not our problem. But it is our concern
that state action is not preempted by federal law. Under existing
federal law, the States do indeed have primary responsibility for
setting water quality standards; the federal agency only sets water
quality standards for a State if the State defaults. 33 U.S.C. §
1160(c) (1970 ed.).
There is not a word in federal law that bars state action. If,
however, defendants had a permit from the Corps to discharge
mercury into federal waters, the question would be vastly
different. But they do not, and so far as appears, they are not
under any federal process, and are not parties to any federal
proceedings. In light of the history of water pollution control
efforts in this country, it cannot be denied that a vast residual
authority rests in the States. And there is no better established
remedy in state law than authority to abate a nuisance. [Footnote 2/5
Much is made of the burdens and perplexities of these original
actions. Some are complex, notably those involving water
Page 401 U. S. 511
The drainage of Lake Michigan, with the attendant lowering of
water levels, affecting Canadian as well as United States
interests, came to us in an original suit in which the Hon. Charles
E. Hughes was Special Master. This Court entered a decree,
Wisconsin v. Illinois, 278 U. S. 367
has, since that time, entered supplementary decrees. [Footnote 2/6
The apportionment of the waters of the Colorado between Arizona
and California was a massive undertaking entailing a searching
analysis by the Special Master, the Hon. Simon H. Rifkind. Our
decision was based on the record made by him and on exceptions to
his Report. Arizona v. California, 373 U.
The apportionment of the waters of the North Platte River among
Colorado, Wyoming, and Nebraska came to us in an original action in
which we named as Special Master Hon. Michael J. Doherty. We
entered a complicated decree which dissenters viewed with alarm,
Nebraska v. Wyoming, 325 U. S. 589
which has not demanded even an hour of the Court's time during the
26 years since it was entered.
If, in these original actions, we sat with a jury, as the Court
once did, [Footnote 2/7
would be powerful arguments for abstention in many cases. But the
practice has been to appoint a Special Master, which we certainly
would do in this case. We could also appoint -- or authorize the
Special Master to retain -- a panel of scientific advisers. The
problems in this case are simple compared with those in the water
cases discussed above. It is now known that metallic mercury
deposited in water is often transformed into a dangerous chemical.
This lawsuit would determine primarily the extent, if any, to which
the defendants are contributing to that contamination at the
Page 401 U. S. 512
time. It would determine, secondarily, the remedies within reach
-- the importance of mercury in the particular manufacturing
processes, the alternative processes available, the need for a
remedy against a specified polluter as contrasted to a basin-wide
regulation, and the like.
The problem, though clothed in chemical secrecies, can be
exposed by the experts. It would indeed be one of the simplest
problems yet posed in the category of cases under the head of our
The Department of Justice in a detailed brief tells us there are
no barriers in federal law to our assumption of jurisdiction.
] I can think of no
case of more transcending public importance than this one.
Hearings before the Subcommittee on Fisheries and
Wildlife Conservation of the House Committee on Merchant Marine and
Fisheries, Serial No. 90-3, p. 32 et seq.
Exec.Order No. 11574, 35 Fed.Reg.19627.
35 Fed.Reg. 20005. And see
36 Fed.Reg. 983 concerning
it proposed policy, practice, and procedure in that regard.
Polikoff, The Interlake Affair, Wash. Monthly, Vol.
3, No. 1, p. 7 (Mar.1971).
2 W. Blackstone, Commentaries *218 (Cooley 4th ed. 1899):
"[I]t is a nuisance to stop or divert water that used to run to
another's meadow or mill; to corrupt or poison a watercourse, by
erecting a dyehouse or a lime-pit for the use of trade, in the
upper part of the stream; or in short to do any act therein that,
in its consequences, must necessarily tend to the prejudice of
one's neighbour. So closely does the law of England enforce that
excellent rule of gospel morality, of 'doing to others as we would
they should do unto ourselves.'"
281 U. S. 281
179, 281 U. S. 696
289 U. S. 289
395; 309 U. S. 309
569; 311 U. S. 311
107; 313 U.S. 547; 388 U. S. 388
3 Dall. 1.
The case is therefore not an appropriate one for application of
the teaching of Massachusetts v. Mellon, 262 U.
, 262 U. S.
"[w]hile the State, under some circumstances, may sue (as
) for the protection of its citizens
(Missouri v. Illinois, 180 U. S. 208
, 180 U. S.
), it is no part of its duty or power to enforce
their rights in respect of their relations with the Federal
Government. In that field, it is the United States, and not the
State, which represents them as parens patriae
representation becomes appropriate, and to the former, and not to
the latter, they must look for such protective measures as flow
from that status."