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PEOPLE OF ST. OF ILL. EX REL. v. CITY OF MILWAUKEE

November 1, 1973

PEOPLE OF THE STATE OF ILLINOIS, EX REL. WILLIAM J. SCOTT, ATTORNEY GENERAL OF THE STATE OF ILLINOIS, PLAINTIFF, PEOPLE OF THE STATE OF MICHIGAN, INTERVENING PLAINTIFF,
v.
CITY OF MILWAUKEE, WISCONSIN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the motion of the defendants City of Milwaukee, the Sewage Commission of the City of Milwaukee, the Metropolitan Sewage Commission of the County of Milwaukee, and the City of South Milwaukee to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

The plaintiff, the People of the State of Illinois, consists of the more than 11 million residents of Illinois, a sovereign state of the United States of America. Plaintiff alleges that it has a vital concern with matters of environmental quality affecting its air, land and water and in this regard has enacted comprehensive environmental legislation (the Illinois Environmental Protection Act of 1970, Ill.Rev.Stat. 1971, Ch. 111 1/2, § 1001 et seq.), which legislation includes concern over pollution of the water of the State of Illinois, whether such pollution occurs as a result of discharges within or outside of Illinois. The People of the State of Michigan join in this action as an intervening plaintiff.

The defendants, City of Milwaukee, City of Kenosha, City of Racine, City of South Milwaukee are municipalities incorporated under the laws of the State of Wisconsin, political subdivisions thereof, and hence citizens of that State; the defendant Sewage Commission of the City of Milwaukee is charged by law with the duty of collecting, transmitting and disposing of the City's sewage; while the defendant Metropolitan Sewage Commission of the County of Milwaukee has the responsibility for the transmission, treatment, and disposal of sewage from territory located within its drainage area.

The plaintiff in the complaint alleges that the People of the State of Illinois are being injured by the defendant's practice of depositing raw sewage in Lake Michigan thereby causing pollution of Illinois' territorial waters of Lake Michigan. The plaintiff seeks an injunction against defendants prohibiting the complained of practice. This action is based on a federal question and diversity of citizenship jurisdiction pursuant to §§ 1331(a) and 1332. The plaintiff, in its complaint, alleges an action based on: (1) federal common law nuisance involving interstate waters; (2) violations of the Illinois Environmental Protection Act, 111 1/2 Ill.Rev.Stat. § 1001; and (3) state common law nuisance. The Supreme Court of the United States has previously declined to exercise jurisdiction in this cause, holding that pollution of interstate or navigable water could be abated under a federal common law claim based on nuisance and that such action was one "arising under" the laws of the United States within the meaning of 28 U.S.C. § 1331(a) and within the jurisdiction of the federal district courts. Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1927).

The defendants, in support of their instant motion, contend that the federal common law nuisance action has been preempted by the Federal Water Pollution Control Act, 33 U.S.C. § 1151, et seq., as amended by P.L. 92-500, October 18, 1972. The plaintiff in opposition to the instant motion contends that the instant cause of action has not been preempted by the 1972 amendments to the Federal Water Pollution Control Act (Water Pollution Prevention and Control Act of 1972, 33 U.S.C. § 1251, et seq., P.L. 92-500).

It is the opinion of this Court that the defendants' motion is without merit.

  I.  THE FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. § 1551,
      et seq., AS AMENDED BY P.L. 92-500, OCTOBER 18,
      1972 DOES NOT PREEMPT THE STATE OF ILLINOIS' RIGHT TO
      SEEK ABATEMENT IN FEDERAL DISTRICT COURT OF A FEDERAL
      COMMON LAW NUISANCE IN INTERSTATE OR NAVIGABLE WATERS.

A. Pre-1972 Amendments

To properly understand the historical development of the 1972 amendments to the Federal Water Pollution Control Act, one must first examine the status of the law as it existed prior to those amendments. Prior to the 1972 amendments, the Supreme Court and other courts repeatedly rejected the contention that the Federal Water Pollution Control Act preempted the right of states to seek common law nuisance relief from water pollution in state or federal courts. This consistent rejection was made in response to the specific argument that the Federal Water Pollution Control Act was a congressional attempt to create a comprehensive and uniform federal control program. See Illinois v. Milwaukee, supra; Ohio v. Wyandotte Chemical Company, 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971); United States v. Bushey, 346 F. Supp. 145 (D.C.Vt. 1972).

The application of federal common law to abate a public nuisance in interstate or navigable waters is not inconsistent with the Federal Water Pollution Control Act. Illinois v. Milwaukee, supra. The federal scheme is not pre-emptive of state action. Section 1(b) of the Federal 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 of that act 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," 33 U.S.C. § 1160(b) (1971 ed.). The Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42 U.S.C. § 4371 (1970 ed.), while stating the general policy of Congress is 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.). Under federal law in 1970, states did indeed have primary responsibility for setting water quality standards; the federal agencies only set water quality standards for a state if the state defaulted. 33 U.S.C. § 1160(c) (1970 ed.).

Where Congress specifically intends that its exercise of statutory powers should preempt all other remedies it has expressly so stated that it is preempting such remedies. For example, 33 U.S.C. § 1163(f) expressly prohibits action beyond the terms of the Federal Water Pollution Control Act with respect to the regulation of marine sanitation devices. In contrast, other sections of the Federal Water Pollution Control Act, e. g. 33 U.S.C. § 1151(b), 1151(c), indicate that much residual authority was left apart from the provisions of the Federal Water Pollution Control Act.*fn1

B. The 1972 Amendments

An analysis of the 1972 amendments of the Federal Water Pollution Control Act clearly shows that Congress in no way intended to destroy any remedies available to the states prior to the passage of the 1972 amendments. Thus, in ยง 101(b), the Congress adopts a statement ...


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