The State of Illinois has filed a motion for leave to file a
bill of complaint against four Wisconsin cities and two local
sewerage commissions for allegedly polluting Lake Michigan.
Illinois seeks to invoke the Court's original jurisdiction on the
ground that the defendants are instrumentalities of Wisconsin, and
that this suit is therefore one against the State that must be
brought in this Court under Art. III, § 2, cl. 2, of the
Constitution, which confers original jurisdiction on the Court
"[i]n all cases . . . in which a State shall be a party," and 28
U.S.C. § 1251(a)(1), which provides that the Court shall have
"original and exclusive jurisdiction of [all] controversies between
two or more States. . . ." Under 28 U.S.C. § 1251(b)(3), the Court
has "original but not exclusive" jurisdiction of actions by a State
against citizens of another State, and under § 1331(a), a district
court has original jurisdiction "of all civil actions wherein the
matter in controversy exceeds $10,000 . . . and [arises] under the
Constitution [or] laws . . . of the United States."
Held:
1. Though Wisconsin could be joined as a defendant here under
appropriate pleadings, it is not mandatory that it be made one, and
its political subdivisions are not "States" within the meaning of
28 U.S.C. § 1251(a)(1). If those subdivisions may be sued by
Illinois in a federal district court, this Court's original
jurisdiction under § 1251(b)(3) is merely permissible, not
mandatory. Pp.
406 U. S.
93-98.
2. In this case, the appropriate federal district court has
jurisdiction under 28 U.S.C. § 1331(a) to give relief against the
nuisance of interstate water pollution and is the proper forum for
litigation of the issues here involved. Pp.
406 U. S.
98-101.
(a) The jurisdictional amount requirement of § 1331(a) is
satisfied in this action involving the purity of interstate waters.
P.
406 U. S.
98.
(b) Pollution of interstate or navigable waters creates actions
under the "laws" of the United States within the meaning of
Page 406 U. S. 92
§ 1331(a), since the term "laws" embraces claims like the one
here involved founded on federal common law, as well as those of
statutory origin. Pp.
406 U. S.
99-100.
(c) Under § 1331(a), a State may sue a defendant other than
another State in a district court. Pp.
406 U. S.
100-101.
3. Federal common law applies to air and water in their ambient
or interstate aspects. Pp.
406 U. S. 101-108.
(a) The application of federal common law to abate the pollution
of interstate or navigable waters is not inconsistent with federal
enforcement powers under the Water Pollution Control Act. Pp.
406 U. S.
101-104.
(b) While federal environmental protection statute may be
sources of federal common law, they will not necessarily form the
outer limits of such law. Pp.
406 U. S. 103,
406 U. S.
107.
(c) State environmental quality standards are relevant, but not
conclusive, source of federal common law. P.
406 U. S.
107.
(d) Federal equity courts have a wide range of powers to grant
relief against pollution of this sort. Pp.
406 U. S.
107-108.
Motion denied.
DOUGLAS, J., delivered the opinion for a unanimous Court.
Page 406 U. S. 93
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a motion by Illinois to file a bill of complaint under
our original jurisdiction against four cities of Wisconsin, the
Sewerage Commission of the City of Milwaukee, and the Metropolitan
Sewerage Commission of the County of Milwaukee. The cause of action
alleged is pollution by the defendants of Lake Michigan, a body of
interstate water. According to plaintiff, some 200 million gallons
of raw or inadequately treated sewage and other waste materials are
discharged daily into the lake in the Milwaukee area alone.
Plaintiff alleges that it and its subdivisions prohibit and prevent
such discharges, but that the defendants do not take such actions.
Plaintiff asks that we abate this public nuisance.
I
Article III, § 2, cl. 2, of the Constitution provides: "In all
Cases . . . in which a State shall be Party, the supreme Court
shall have original Jurisdiction." Congress has provided in 28
U.S.C. § 1251 that "(a) the Supreme Court shall have original and
exclusive jurisdiction of: (1) All controversies between two or
more States."
It has long been this Court's philosophy that "our original
jurisdiction should be invoked sparingly."
Utah v. United
States, 394 U. S. 89,
394 U. S. 95. We
construe 28 U.S.C. § 1251(a)(1), a we do Art. III, § 2, cl. 2, to
honor our original jurisdiction but to make it obligatory only in
appropriate cases. And the question of what is appropriate
concerns, of course, the seriousness and dignity of the claim; yet,
beyond that, it necessarily involves the availability of another
forum where there is jurisdiction over the named parties, where the
issues tendered may be litigated, and where appropriate relief may
be had. We
Page 406 U. S. 94
incline to a sparing use of our original jurisdiction so that
our increasing duties with the appellate docket will not suffer.
Washington v. General Motors Corp., post, p.
406 U. S. 109.
Illinois presses its request for leave to file, saying that the
agencies named as defendants are instrumentalities of Wisconsin,
and therefore that this is a suit against Wisconsin which could not
be brought in any other forum. Under our decisions, there is no
doubt that the actions of public entities might, under appropriate
pleadings, be attributed to a State so as to warrant a joinder of
the State as party defendant. In
Missouri v. Illinois,
180 U. S. 208,
Missouri invoked our original jurisdiction by an action against the
State of Illinois and the Sanitary District of the City of Chicago,
seeking an injunction to restrain the discharge of raw sewage into
the Mississippi River. On a demurrer to the motion for leave to
file a bill of complaint, Illinois argued that the Sanitary
District was the proper defendant, and that Illinois should not
have been made a party. That argument was rejected:
"The contention . . . seems to be that, because the matters
complained of in the bill proceed and will continue to proceed from
the acts of the Sanitary District of Chicago, a corporation of the
State of Illinois, it therefore follows that the State, as such, is
not interested in the question, and is improperly made a
party."
"We are unable to see the force of this suggestion. The bill
does not allege that the Sanitary District is acting without or in
excess of lawful authority. The averment and the conceded facts are
that the corporation is an agency of the State to do the very
things which, according to the theory of the complainant's case,
will result in the mischief to be apprehended.
Page 406 U. S. 95
It is state action and its results that are complained of --
thus distinguishing this case from that of
Louisiana v.
Texas [
176 U.S.
1], where the acts sought to be restrained were alleged to be
those of officers or functionaries proceeding in a wrongful and
malevolent misapplication of the quarantine laws of Texas. The
Sanitary District of Chicago is not a private corporation, formed
for purposes of private gain, but a public corporation, whose
existence and operations are wholly within the control of the
State."
"The object of the bill is to subject this public work to
judicial supervision, upon the allegation that the method of its
construction and maintenance will create a continuing nuisance,
dangerous to the health of a neighboring State and its inhabitants.
Surely, in such a case, the State of Illinois would have a right to
appear and traverse the allegations of the bill, and, having such a
right, might properly be made a party defendant."
180 U.S. at
180 U. S.
242.
In
New York v. New Jersey, 256 U.
S. 296, the State of New York brought an original action
against the State of New Jersey and the Passaic Valley Sewerage
Commissioners, seeking an injunction against the discharge of
sewage into Upper New York Bay. The question was whether the
actions of the sewage agency could be attributed to New Jersey so
as to make that State responsible for them. The Court said:
"Also, for the purpose of showing the responsibility of the
State of New Jersey for the proposed action of the defendant, the
Passaic Valley Sewerage Commissioners, the bill sets out, with much
detail, the acts of the legislature of that State authorizing and
directing such action on their part. "
Page 406 U. S. 96
"Of this, it is sufficient to say that the averments of the
bill, quite undenied, show that the defendant sewerage
commissioners constitute such a statutory, corporate agency of the
State that their action, actual or intended, must be treated as
that of the State itself, and we shall so regard it."
256 U.S. at
256 U. S.
302.
The most recent case is
New Jersey v. New York,
345 U. S. 369. The
action was originally brought by the State of New Jersey against
the City and State of New York for injunctive relief against the
diversion of waters from Delaware River tributaries lying within
New York State. Pennsylvania was subsequently allowed to intervene.
The question presented by this decision was the right of the City
of Philadelphia also to intervene in the proceedings as a party
plaintiff. The issues raised were broad:
"All of the present parties to the litigation have formally
opposed the motion to intervene on grounds (1) that the
intervention would permit a suit against a state by a citizen of
another state in contravention of the Eleventh Amendment; (2) that
the Commonwealth of Pennsylvania has the exclusive right to
represent the interest of Philadelphia as
parens patriae;
and (3) that intervention should be denied, in any event, as a
matter of sound discretion."
345 U.S. at
345 U. S. 372.
We denied the City of Philadelphia's motion to intervene,
saying:
"The City of Philadelphia represents only a part of the citizens
of Pennsylvania who reside in the watershed area of the Delaware
River and its tributaries and depend upon those water. If we
undertook to evaluate all the separate interests within
Pennsylvania, we could, in effect, be drawn into an
Page 406 U. S. 97
intramural dispute over the distribution of water within the
Commonwealth. . . ."
"Our original jurisdiction should not be thus expanded to the
dimensions of ordinary class actions. An intervenor whose state is
already a party should have the burden of showing some compelling
interest in his own right, apart from his interest in a class with
all other citizens and creatures of the state, which interest is
not properly represented by the state."
345 U.S. at
345 U. S.
373.
We added:
"The presence of New York City in this litigation is urged as a
reason for permitting Philadelphia to intervene. But the argument
misconstrues New York City's position in the case. New York City
was not admitted into this litigation as a matter of discretion at
her request. She was forcibly joined as a defendant to the original
action since she was the authorized agent for the execution of the
sovereign policy which threatened injury to the citizens of New
Jersey. Because of this position as a defendant, subordinate to the
parent state as the primary defendant, New York City's position in
the case raises no problems under the Eleventh Amendment."
345 U.S. at
345 U. S.
374-375.
We conclude that, while, under appropriate pleadings, Wisconsin
could be joined as a defendant in the present controversy, it is
not mandatory that it be made one.
It is well settled that, for the purposes of diversity of
citizenship, political subdivisions are citizens of their
respective States. [
Footnote 1]
Bullard v. City of Cisco, 290 U.
S. 179;
Page 406 U. S. 98
Cowles v. Mercer
County, 7 Wall. 118,
74 U. S. 122. If a
political subdivision is a citizen for diversity purposes, then it
would make no jurisdictional difference whether it was the
plaintiff or defendant in such an action. That being the case, a
political subdivision in one State would be able to bring an action
founded upon diversity jurisdiction against a political subdivision
of another State.
We therefore conclude that the term "States," as used in 28
U.S.C. § 1251(a)(1), should not be read to include their political
subdivisions. That, of course, does not mean that political
subdivisions of a State may not be sued under the head of our
original jurisdiction, for 28 U.S.C. § 1251 provides that
"(b) 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. . . ."
If the named public entities of Wisconsin may, however, be sued
by Illinois in a federal district court, our original jurisdiction
is not mandatory.
It is to that aspect of the case that we now turn.
II
Title 28 U.S.C. § 1331(a) provides that
"[t]he district courts shall have original jurisdiction of all
civil actions wherein the matter in controversy exceeds the sum or
value of $10,000, exclusive of interest and costs, and arises under
the Constitution, laws, or treaties of the United States."
The considerable interests involved in the purity of interstate
waters would seem to put beyond question the jurisdictional amount
provided in § 1331(a).
See Glenwood Light & Water Co. v.
Mutual Light, Heat & Power Co., 239 U.
S. 121;
Mississippi & Missouri R.
Co. v. Ward, 2 Black 485,
67 U. S. 492;
Ronzio v. Denver & R. G. W. R. Co., 116 F.2d 604, 606;
C. Wright, The Law of Federal Courts 117-119 (2d ed.1970); Note, 73
Harv.L.Rev. 1369.
Page 406 U. S. 99
The question is whether pollution of interstate or navigable
waters creates actions arising under the "laws" of the United
States within the meaning of § 1331(a). We hold that it does; and
we also hold that § 1331(a) includes suits brought by a State.
MR. JUSTICE BRENNAN, speaking for the four members of this Court
in
Romero v. International Terminal Operating Co.,
358 U. S. 354,
358 U. S. 393
(dissenting and concurring), who reached the issue, concluded that
"laws," within the meaning of § 1331(a), embraced claims founded on
federal common law:
"The contention cannot be accepted that, since petitioner's
rights are judicially defined, they are not created by 'the laws .
. . of the United States' within the meaning of § 1331. . . . In
another context, that of state law, this Court has recognized that
the statutory word 'laws' includes court decisions. The converse
situation is presented here in that federal courts have an
extensive responsibility of fashioning rules of substantive law. .
. . These rules are as fully 'laws' of the United States as if they
had been enacted by Congress."
(Citations omitted.)
Lower courts have reached the same conclusion.
See, e.g.,
Murphy v. Colonial Federal Savings & Loan Assn., 388 F.2d
609, 611-612 (CA2 1967);
Stokes v. Adair, 265 F.2d 662
(CA4 1959);
Mater v. Holley, 200 F.2d 123 (CA5 1952);
American Law Institute, Study of the Division of Jurisdiction
Between State and Federal Courts 180-182 (1969).
Judge Harvey M. Johnsen, in
Texas v. Pankey, 441 F.2d
236, 240, stated the controlling principle:
"As the field of federal common law has been given necessary
expansion into matters of federal concern and relationship (where
no applicable federal
Page 406 U. S. 100
statute exists, as there does not here), the ecological rights
of a State in the improper impairment of them from sources outside
the State's own territory, now would and should, we think, be held
to be a matter having basis and standard in federal common law and
so directly constituting a question arising under the laws of the
United States."
Chief Judge Lumbard, speaking for the panel in
Ivy
Broadcasting Co. v. American Tel. & Tel. Co., 391 F.2d
486, 492, expressed the same view as follows:
"We believe that a cause of action similarly 'arises under'
federal law if the dispositive issues stated in the complaint
require the application of federal common law. . . . The word
'laws' in § 1331 should be construed to include laws created by
federal judicial decisions, as well as by congressional
legislation. The rationale of the 1875 grant of federal question
jurisdiction -- to insure the availability of a forum designed to
minimize the danger of hostility toward, and specially suited to
the vindication of, federally created rights -- is as applicable to
judicially created rights as to rights created by statute."
(Citations omitted.)
We see no reason not to give "laws" its natural meaning,
see
Romero v. International Terminal Operating Co., supra, at
358 U. S. 393
n. 5 (BRENNAN, J., dissenting and concurring) , and therefore
conclude that § 1331 jurisdiction will support claims founded upon
federal common law, as well as those of a statutory origin.
As respects the power of a State to bring an action under §
1331(a),
Ames v. Kansas, 111 U. S. 449,
111 U. S.
470-472, is controlling. There, Kansas had sued a number
of corporations in its own courts, and, since federal rights were
involved, the defendants had the cases removed to the federal
court. Kansas resisted, saying that the federal court lacked
jurisdiction because of Art. III,
Page 406 U. S. 101
§ 2, cl. 2, of the Constitution, which gives this Court
"original Jurisdiction" in "all Cases . . . in which a State shall
be Party." The Court held that, where a State is suing parties who
are not other States, the original jurisdiction of this Court is
not exclusive (
id. at
111 U. S.
470), and that those suits "may now be brought in or
removed to the Circuit Courts [now the District Courts] without
regard to the character of the parties." [
Footnote 2]
Ibid. We adhere to that
ruling.
III
Congress has enacted numerous laws touching interstate waters.
In 1899, it established some surveillance by the Army Corps of
Engineers over industrial pollution, not including sewage, Rivers
and Harbors Act of March 3, 1899, 30 Stat. 1121, a grant of power
which we construed in
United States v. Republic Steel
Corp., 362 U. S. 482, and
in
United States v. Standard Oil Co., 384 U.
S. 224.
The 1899 Act has been reinforced and broadened by a complex of
laws recently enacted. The Federal Water Pollution Control Act, 62
Stat. 1155, as amended, 33 U.S.C. § 1151, tightens control over
discharges into navigable waters so as not to lower applicable
water quality standards. By the National Environmental Policy Act
of 1969, 83 Stat. 862, 42 U.S.C. § 4321
et seq., Congress
"authorizes and directs" that
"the policies, regulations, and public laws of the United States
shall be interpreted and administered in accordance with the
policies set forth in this Act,"
and that
"all agencies of the Federal Government shall . . . identify and
develop methods and procedures . . . which will insure that
presently unquantified environmental amenities and values
Page 406 U. S. 102
may be given appropriate consideration in decisionmaking along
with economic and technical considerations."
Sec. 102, 42 U.S.C. § 4332. Congress has evinced increasing
concern with the quality of the aquatic environment as it affects
the conservation and safeguarding of fish and wildlife resources.
See, e.g., Fish and Wildlife Act of 1956, 70 Stat. 1119,
16 U.S.C. § 742a; the Act of Sept. 22, 159, 73 Stat. 642,
authorizing research in migratory marine game fish, 16 U.S.C. §
760e; and the Fish and Wildlife Coordination Act, 48 Stat. 401, as
amended, 16 U.S.C. § 661.
Buttressed by these new and expanding policies, the Corps of
Engineers has issued new Rules and Regulations governing permits
for discharges or deposits into navigable waters. 36 Fed.Reg. 6564
et seq.
The Federal Water Pollution Control Act, in § 1(b), declares
that it is federal policy "to recognize, preserve, and protect the
primary responsibilities and rights of the States in preventing and
controlling water pollution." But the Act makes clear that it is
federal, not state, law that, in the end, controls the pollution of
interstate or navigable waters. [
Footnote 3] While the States are given time to establish
water quality standards, § 10(c)(1), if a State fails to do so, the
federal administrator [
Footnote
4] promulgates one. § 10(c)(2). Section 10(a) makes pollution
of interstate or navigable waters subject "to abatement" when it
"endangers the health or welfare of any persons."
Page 406 U. S. 103
The abatement that is authorized follows a long drawn-out
procedure unnecessary to relate here. It uses the conference
procedure, hoping for amicable settlements. But if none is reached,
the federal administrator may request the Attorney General to bring
suit on behalf of the United States for abatement of the pollution.
§ 10(g).
The remedy sought by Illinois is not within the precise scope of
remedies prescribed by Congress. Yet the remedies which Congress
provides are not necessarily the only federal remedies available.
"It is not uncommon for federal courts to fashion federal law where
federal rights are concerned."
Textile Workers v. Lincoln
Mills, 353 U. S. 448,
353 U. S. 457.
When we deal with air and water in their ambient or interstate
aspects, there is a federal common law, [
Footnote 5] as
Texas v. Pankey, 441 F.2d 236,
recently held.
Page 406 U. S. 104
The application of federal common law to abate a public nuisance
in interstate or navigable waters is not inconsistent with the
Water Pollution Control Act. Congress provided in § 10(b) of that
Act that, save as a court may decree otherwise in an enforcement
action,
"[s]tate and interstate action to abate pollution of interstate
or navigable waters shall be encouraged and shall not . . . be
displaced by Federal enforcement action."
The leading air case is
Georgia v. Tennessee Copper
Co., 206 U. S. 230,
where Georgia filed an original suit in this Court against a
Tennessee company whose noxious gases were causing a wholesale
destruction of forests, orchards, and crops in Georgia. The Court
said:
"The caution with which demands of this sort, on the part of a
State, for relief from injuries analogous to torts, must be
examined, is dwelt upon in
Missouri v. Illinois,
200 U. S.
496,
200 U. S. 520,
200 U. S.
521. But it is plain that some such demands must be
recognized, if the grounds alleged are proved. When the States, by
their union, made the forcible abatement of outside nuisances
impossible to each, they did not thereby agree to submit to
whatever might be done. They did not renounce the possibility of
making reasonable demands on the ground of their still remaining
quasi-sovereign interests; and the alternative to force is
a suit in this court.
Missouri v. Illinois, 180 U. S.
208,
180 U. S. 241."
206 U.S. at
206 U. S.
237.
The nature of the nuisance was described as follows:
"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
Page 406 U. S. 105
the crops and orchards on its hill should not be endangered from
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, and the doubt whether for the
injuries which they might be suffering to their property they
should not be left to an action at law."
Id. at
206 U. S.
238.
Our decisions concerning interstate waters contain the same
theme. Rights in interstate streams, like questions of boundaries,
"have been recognized as presenting federal questions." [
Footnote 6]
Hinderlider v. La Plata
Co., 304 U. S. 92,
304 U. S. 110.
The question of apportionment of interstate waters is a question of
"federal common law" upon which State statutes or decisions are not
conclusive. [
Footnote 7]
Ibid.
In speaking of the problem of apportioning the waters of an
interstate stream, the Court said in
Kansas v. Colorado,
206 U. S. 46,
206 U. S. 98,
that,
"through these successive disputes and decisions, this court is
practically building up what may not improperly be called
interstate common
Page 406 U. S. 106
law."
And see Texas v. New Jersey, 379 U.
S. 674 (escheat of intangible personal property);
Texas v. Florida, 306 U. S. 398,
306 U. S. 405
(suit by bill in the nature of interpleader to determine the true
domicile of a decedent as the basis of death taxes).
Equitable apportionment of the waters of an interstate stream
has often been made under the head of our original jurisdiction.
Nebraska v. Wyoming, 325 U. S. 589;
Kansas v. Colorado, supra; cf. Arizona v. California,
373 U. S. 546,
373 U. S. 562.
The applicable federal common law depends on the facts peculiar to
the particular case.
"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."
325 U.S. at
325 U. S.
618.
When it comes to water pollution this Court has spoken in terms
of "a public nuisance," [
Footnote
8]
New York v. New Jersey,
Page 406 U. S. 107
256 U.S. at
256 U. S. 313;
New Jersey v. New York City, 283 U.
S. 473,
283 U. S. 481,
482. In
Missouri v. Illinois, 200 U.
S. 496,
200 U. S.
520-521, the Court said,
"It may be imagined that a nuisance might be created by a State
upon a navigable river like the Danube, which would amount to a
casus belli for a State lower down, unless removed. If
such a nuisance were created by a State upon the Mississippi, the
controversy would be resolved by the more peaceful means of a suit
in this court."
It may happen that new federal laws and new federal regulations
may in time preempt the field of federal common law of nuisance.
But until that comes to pass, federal courts will be empowered to
appraise the equities of the suits alleging creation of a public
nuisance by water pollution. While federal law governs, [
Footnote 9] consideration of state
standards may be relevant.
Cf. Connecticut v.
Massachusetts, 282 U. S. 660,
282 U. S. 670;
Kansas v. Colorado, 185 U. S. 125,
185 U. S.
146-147. Thus, a State with high water quality standards
may well ask that its strict standards be honored, and that it not
be compelled to lower itself to the more degrading standards of a
neighbor. There are no fixed rules that govern; these
Page 406 U. S. 108
will be equity suits in which the informed judgment of the
chancellor will largely govern.
We deny, without prejudice, the motion for leave to file. While
this original suit normally might be the appropriate vehicle for
resolving this controversy, we exercise our discretion to remit the
parties to an appropriate district court [
Footnote 10] whose powers are adequate to resolve the
issue.
So ordered.
[
Footnote 1]
It is equally well settled that a suit between a State and a
citizen of another State is not a suit between citizens of
different States for the purposes of diversity of citizenship
jurisdiction.
Postal Telegraph Cable Co. v. Alabama,
155 U. S. 482,
155 U. S.
487.
[
Footnote 2]
See also H.R.Rep. No. 308, 80th Cong., 1st Sess., A 104
(1947):
"The original jurisdiction conferred on the Supreme Court by
Article 3, section 2, of the Constitution is not exclusive by
virtue of that provision alone. Congress may provide for or deny
exclusiveness."
[
Footnote 3]
The contrary indication in
Ohio v. Wyandotte Chemicals
Corp., 401 U. S. 493,
401 U. S. 498
n. 3, was based on the preoccupation of that litigation with public
nuisance under Ohio law, not the federal common law which we now
hold is ample basis for federal jurisdiction under 28 U.S.C. §
1331(a).
[
Footnote 4]
The powers granted the Secretary of the Interior under the
Federal Water Quality Act of 1965, 79 Stat. 903, were assigned by
the President to the Administrator of the Environmental Protection
Agency pursuant to Reorganization Plan No. 3 of 1970.
See
35 Fed.Reg. 15623.
[
Footnote 5]
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. What we said in another connection in
Textile Workers
v. Lincoln Mills, 353 U. S. 448,
353 U. S.
456-457, is relevant here:
"The question then is, what is the substantive law to be applied
in suits 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.
It 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."
(Citations omitted.)
See also Woods & Reed, The
Supreme Court and Interstate Environmental Quality: Some Notes on
the
Wyandotte Case, 12 Ariz.L.Rev. 691, 713-714; Note, 56
Va.L.Rev. 458.
[
Footnote 6]
Thus, it is not only the character of the parties that requires
us to apply federal law.
See Georgia v. Tennessee Copper
Co., 206 U. S. 230,
206 U. S. 237;
cf. Wisconsin v. Pelican Ins. Co., 127 U.
S. 265,
127 U. S. 289;
The Federalist No. 80 (A. Hamilton). As Mr. Justice Harlan
indicated for the Court in
Banco Nacional de Cuba v.
Sabbatino, 376 U. S. 398,
376 U. S.
421-427, where there is an overriding federal interest
in the need for a uniform rule of decision or where the controversy
touches basic interests of federalism, we have fashioned federal
common law.
See also Clearfield Trust Co. v. United
States, 318 U. S. 363;
D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp.,
315 U. S. 447; C.
Wright, The Law of Federal Courts 249 (2d ed 1970); Woods &
Reed,
supra, n 5, at
703-713; Note, 50 Texas L.Rev. 183. Certainly these same demands
for applying federal law are present in the pollution of a body of
water such as Lake Michigan, bounded, as it is, by four States.
[
Footnote 7]
Those who maintain that state law governs overlook the fact that
the
Hinderlider case was written by Mr. Justice Brandeis,
who also wrote for the Court in
Erie R. Co. v. Tompkins,
304 U. S. 64, the
two cases being decided the same day.
[
Footnote 8]
In
North Dakota v. Minnesota, 263 U.
S. 365,
263 U. S. 374,
the Court said:
"[W]here one State, by a change in its method of draining water
from lands within its border, increases the flow into an interstate
stream, so that its natural capacity is greatly exceeded and the
water is thrown upon the farms of another State, the latter State
has such an interest as
quasi-sovereign in the comfort,
health and prosperity of its farm owners that resort may be had to
this Court for relief. It is the creation of a public nuisance of
simple type for which a State may properly ask an injunction."
[
Footnote 9]
"Federal common law, and not the varying common law of the
individual States is, we think, entitled and necessary to be
recognized as a basis for dealing in uniform standard with the
environmental rights of a State against improper impairment by
sources outside its domain. The more would this seem to be
imperative in the present era of growing concern on the part of a
State about its ecological conditions and impairments of them. In
the outside sources of such impairment, more conflicting disputes,
increasing assertions and proliferating contentions would seem to
be inevitable. 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 as alleged federal rights. And the logic
and practicality of regarding such claims as being entitled to be
asserted within the federal question jurisdiction of § 1331(a)
would seem to be self-evident."
Texas v. Pankey, 441 F.2d 236, 241-242.
[
Footnote 10]
The rule of decision being federal, the "action . . . may be
brought only in the judicial district where all defendants reside,
or in which the claim arose," 28 U.S.C. § 1391(b), thereby giving
flexibility to the choice of venue.
See also 28 U.S.C. §
1407.
Whatever may be a municipality's sovereign immunity in actions
for damages,
see Van Alstyne, Governmental Tort Liability:
A Decade of Change, 1966 U.Ill.L.F. 919, 944-948; Note, 4 Suffolk
L.Rev. 832 (1970), actions seeking injunctive relief stand on a
different footing. The cases are virtually unanimous in holding
that municipalities are subject to injunctions to abate nuisances.
See cases collected in 17 E. McQuillin, The Law of
Municipal Corporations § 49.51
et seq. (3d rev. ed.1968).
See also Wis.Stat.Ann. § 59.96(6)(b) (1957) as respects
the suability of metropolitan sewerage commissions.
While the kind of equitable relief to be accorded lies in the
discretion of the chancellor (
Harrisonville v. Dickey Clay
Mfg. Co., 289 U. S. 334), a
State that causes a public nuisance is suable in this Court and any
of its public entities is suable in a federal district court having
jurisdiction:
"[I]t is generally held that a municipality, like a private
individual, may be enjoined from maintaining a nuisance. Thus, in a
proper case, a municipal corporation will be restrained by
injunction from creating a nuisance on private property, as by the
discharge of sewage or poisonous gases thereon, or, in some
jurisdictions, by the obstruction of drainage of waters, or by
discharging sewage or filth into a stream and polluting the water
to the damage of lower riparian owners, or by dumping garbage or
refuse, or by other acts. Likewise, a municipality may be enjoined
from creating or operating a nuisance, whether the municipality is
acting in a governmental or proprietary capacity, impairing
property rights. And, if a nuisance is established causing
irreparable injury for which there is no adequate remedy at law, it
may be enjoined irrespective of the resulting damage or injury to
the municipality."
17 McQuillin,
supra, § 49.55.