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SCOTT v. CITY OF HAMMOND

June 24, 1981

WILLIAM J. SCOTT, ON HIS OWN BEHALF AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFF,
v.
CITY OF HAMMOND, INDIANA; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; DOUGLAS M. COSTLE, ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, HAMMOND-MUNSTER SANITARY DISTRICT, DEFENDANTS. PEOPLE OF THE STATE OF ILLINOIS AND THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, A MUNICIPAL CORPORATION, PLAINTIFFS, V. THE SANITARY DISTRICT OF HAMMOND, A MUNICIPAL CORPORATION; JOSEPH A. PERRY; THOMAS C. CONLEY; GILBERT DELANCY; THEODORE DUNAJESKI; AND THE CITY OF HAMMOND, INDIANA, A MUNICIPAL CORPORATION, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This matter comes before the court on defendants' motions to dismiss. For the reasons stated below, those motions are denied.

These two lawsuits (among others) arose from the pollution of Lake Michigan and the fouling of many Chicago public beaches last summer. Both complaints allege that the City of Hammond and the Sanitary District of Hammond (collectively, "Hammond") discharged large quantities of raw and inadequately treated sewage into Lake Michigan which was carried by the currents onto Chicago's beaches. Each complaint asserts several causes of action based upon federal common law of nuisance, Illinois common and statutory law of nuisance, Illinois common law of trespass, and Illinois statutory environmental law. In light of City of Milwaukee v. Illinois, ___ U.S. ___, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) ("Milwaukee II"), the federal common law counts must be dismissed.*fn1 The issue presented here, then, is whether the causes of action based on Illinois law state claims for which relief may be granted against these non-Illinois defendants.

For this court, the first question presented by this issue is the effect of a Seventh Circuit decision that appears to be squarely on point in support of Hammond's position that federal law is the exclusive source of remedy for Illinois, Scott and the Metropolitan Sanitary District of Greater Chicago ("MSD"). In City of Evansville v. Kentucky Liquid Recycling, 604 F.2d 1008 (7th Cir. 1979), the Indiana municipality sought damages from several Ohio defendants under state and federal laws governing discharges into waterways. Among other rulings, the court affirmed the dismissal of plaintiff's state law claims. Although the dismissal holding is unequivocal, the basis for that decision is not altogether clear. The rationale provided for the dismissal is only a quote from the court's earlier opinion in Illinois v. City of Milwaukee, 599 F.2d 151, 177 n. 53 (7th Cir. 1979), vacated, ___ U.S. ___, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) ("Milwaukee (7th Cir.)"): "[I]t is federal common law and not state statutory or common law that controls in this case."*fn2

Illinois and Scott argue separate theories contending the Evansville holding is no longer controlling, while Hammond, of course, submits that Evansville is both valid and binding. Illinois maintains that a more recent Seventh Circuit opinion than Evansville clarifies the issue in this Circuit. In Illinois v. Outboard Marine Corp., 619 F.2d 623 (7th Cir. 1980), the court held that Illinois can maintain a federal common law cause of action against an in-state pollution source to prevent pollution of interstate or navigable waters. Within that opinion, the court reasoned that there should be uniform federal law governing the federal tort of polluting federal waters. 619 F.2d at 628. In a footnote reference, the court stated that the uniformity it and Illinois v. City of Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), ("Milwaukee I") envisioned was a uniform floor. Therefore, a state could "undertake more stringent pollution control than that offered by federal statute or common law [under] its own statutes and common law." 619 F.2d at 628 n. 16. Illinois argues that this language, being the most recent language of the court, supercedes Evansville and establishes the right to bring these state law claims here.

Scott presents an entirely different argument as to why Evansville is not binding on the court. His argument is premised on the assertion that because the only foundation for the Evansville decision is the Milwaukee (7th Cir.). decision, Evansville's validity is dependent on the continuing validity of Milwaukee (7th Cir.). Milwaukee II vacated and remanded Milwaukee (7th Cir.). Scott's theory, then, is that the whole Seventh Circuit opinion, including footnote 53, is no longer in existence and cannot be precedent for any other decision. Therefore, Scott argues, Evansville is no longer valid and the issue of application of state law to out-of-state pollutants is unresolved in this Circuit.*fn3

In response to Illinois' argument, Hammond contends that the Outboard Marine decision applies only to an in-state polluter, which was the case before the court. Hammond submits that this limitation on Outboard Marine is particularly appropriate because the court never referred to Milwaukee (7th Cir.) or Evansville. In response to Scott's argument, Hammond asserts that Milwaukee II has a different effect on Milwaukee (7th Cir.). It maintains that based on the rationale of Milwaukee II, i.e., federal common law has been supplanted by federal statutory law, the vacating order means the Seventh Circuit must replace the remedies it upheld under common law with permissible federal statutory remedies. All other provisions of Milwaukee (7th Cir.), Hammond argues, remain valid law. Hammond further submits that this interpretation is buttressed by the Supreme Court's disposition of Illinois' cross-petition for certiorari on the issue of whether state law was available to Illinois. Hammond contends that if the Supreme Court had intended the Seventh Circuit to reconsider its decision on state law, the Court would have specifically directed reconsideration in light of Milwaukee II instead of simply denying certiorari at ___ U.S. ___, 101 S.Ct. 2313, 68 L.Ed.2d 839 (1981). For Hammond, the denial of certiorari means the Seventh Circuit's determination on state law remains the law.

Although all the parties have presented viable arguments on this somewhat knotty precedent issue, Scott's contentions are more persuasive. The denial of certiorari on Illinois' petition should not be attributed any significant meaning. Commentators and courts have continually recognized that denial of certiorari has no precedential weight. Further, as Scott suggests, the Court may have denied certiorari because it had already vacated the Milwaukee (7th Cir.) opinion and there was no longer a case for which to grant the petition. Milwaukee II must be interpreted as vacating the entire Milwaukee (7th Cir.) opinion, including footnote 53 which states that federal common law, not state law, is controlling. Because footnote 53 is the only rationale provided in Evansville for the decision that state law claims do not apply, Evansville is no longer binding precedent on that issue. Therefore, an independent analysis of the question is appropriate.

In recognizing the existence of federal common law, the Court in Milwaukee I analogized the pollution issue to the equitable apportionment of interstate streams and establishment of state boundaries. In those areas of law, federal common law had developed because they presented federal questions. Milwaukee I also quoted an earlier Tenth Circuit opinion which had recognized federal common law as governing water pollution nuisances. Milwaukee I, 406 U.S. at 107 n. 9, 92 S.Ct. at 1395 n. 9. That court concluded, "Federal common law and not the varying common law of the individual States is . . . 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." Texas v. Pankey, 441 F.2d 236, 241-42 (10th Cir. 1971).

Hammond argues that subsequent cases applying Milwaukee I further support its contention that federal law is the exclusive source of rights in this case. In Committee for the Consideration of the Jones Falls Sewage System v. Train, 539 F.2d 1006 (4th Cir. 1976), the Fourth Circuit sitting en banc stated that "the law of the state whose citizens were subject to injuries by the interstate pollution ought not to govern the conduct of citizens and municipalities in another state. . . ." 539 F.2d at 1008. In Stream Pollution Control Bd. of Indiana v. United States Steel Corp., 512 F.2d 1036 (7th Cir. 1975), the Seventh Circuit stated that the federal common law nuisance action raises "substantial questions which only a federal court may finally answer." 512 F.2d at 1040.

These themes were definitively reaffirmed, Hammond contends, in Milwaukee II. There the Court characterized as inconsistent Illinois' argument that both federal and state nuisance law applied: "If state law can be applied, there is no need for federal common law; if common law exists, it is because state law cannot be used." ___ U.S. at ___ n. 7, 101 S.Ct. at 1790 n. 7. Hammond submits, then, that even though federal common law is now displaced, its previous existence presupposed the inapplicability of state law. In any event, Hammond argues that the clear import of Milwaukee II is that the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (FWPCA), has replaced the federal common law and the same analysis continues to apply to the relationship of FWPCA and state law.

Hammond contends the reason federal law must be the plaintiffs' exclusive source of remedy stems from two important considerations. First, because every state may have different and conflicting pollution control standards, federal law must be exclusive to establish uniformity. Second, if state law applies and plaintiffs prevail, then Illinois and its citizens can dictate to another state's municipality how it should run its sanitary district. This ultimately could have a significant impact on the city's treasury and on local officials' ability to conduct their own affairs. Cf. McCulloch v. Maryland, 17 U.S. 316, 4 Wheat. 316, 4 L.Ed. 579 (1819).

As an alternative to its no state power argument, Hammond asserts that the FWPCA preempts extra-territorial application of state law. This contention is based on two premises. First, Milwaukee II described the FWPCA as "occup[ying] the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency." ___ U.S. at ___, 101 S.Ct. at 1792. Second, Hammond submits that Congress could not have intended to permit one state to apply its laws requiring stricter standards on an out-of-state discharger and thereby negate time, effort and money expended by the federal agency and ...


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