On Remand from the United States Supreme Court, No. 80-126
Before Swygert, Circuit Judge, Wisdom, Senior Circuit Judge,*fn* and Bauer, Circuit Judge.
This case is before us for the second time, having been remanded by the United States Supreme Court. See Illinois v. Outboard Marine Corp., 619 F.2d 623 (7th Cir. 1980). The facts of the case and early history of the litigation appear in our prior opinion, and we do not repeat them here. 619 F.2d at 624-25. When the case was last before us we held, in No. 79-1341, that the federal common law of nuisance for water pollution, recognized in Illinois v. Milwaukee, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972) (Milwaukee I ), extended to Illinois's claim against an in-state industrial polluter of navigable waters, in this case Lake Michigan. 619 F.2d at 630. We also held, in No. 79-1725, that § 505(b)(1)(B) of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1365(b)(1)(B), gives Illinois a right to intervene in the Federal Government's action under the FWPCA. 619 F.2d at 632. The defendant, Outboard Marine Corp. (OMC), petitioned for a writ of certiorari in the United States Supreme Court. The Court granted the writ, Outboard Marine Corp. v. Illinois, 453 U.S. 917, 101 S. Ct. 3152, 69 L. Ed. 2d 1000 (1981) (mem.), vacating and remanding our judgment for further consideration in the light of Milwaukee v. Illinois, 451 U.S. 304, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (1981) (Milwaukee II ).
Milwaukee II held that the 1972 Amendments to the FWPCA, Pub.L.No.92-500, 86 Stat. 816, pre-empted Illinois's federal common law claims against Milwaukee for pollution of Lake Michigan. 451 U.S. at 317, 101 S. Ct. at 1792, 68 L. Ed. 2d at 126. Subsequently the Supreme Court decided Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981), in which it rejected a claim by a private organization seeking damages under the federal common law for pollution of coastal waters.*fn1 The Court based its conclusion on the broad statement that Milwaukee II "held that the federal common law of nuisance in the area of water pollution is entirely pre-empted" by the 1972 Amendments to the FWPCA. 451 U.S. at 22, 101 S. Ct. at 2627, 69 L. Ed. 2d at 452.
On remand, Illinois, and the United States as amicus curiae, concede that Milwaukee II governs claims against OMC for pollution occurring since the enactment of the 1972 Amendments. But they argue that Illinois retains its rights under federal common law to abate a nuisance resulting from the discharge of pollutants prior to 1972. OMC asks us to hold that the federal common law remedy for pre-1972 pollution of navigable waters is pre-empted under Milwaukee II. We agree with OMC.*fn2 OMC also invites us to reconsider our decision that Illinois has a right to intervene in the United States's suit against OMC. Because we find that nothing in Milwaukee II affects this issue, we leave our previous judgment on the intervention question intact.
Our consideration of the case on remand necessarily begins with a discussion of Milwaukee II. Illinois sued Milwaukee and its city and county sewerage commissions, seeking relief from pollution created by sewage discharges that overflowed into Lake Michigan. Illinois was concerned with both the level of pollutants in the sewage and the fact that the discharges occasionally-particularly in wet weather-overflowed directly into the lake. The cause of action was asserted under the federal common law of nuisance recognized in Milwaukee I.*fn3
In considering Illinois's claims, the Supreme Court first noted that "(federal) courts, unlike state courts, are not general common law courts", 451 U.S. at 312, 101 S. Ct. at 1790, 68 L. Ed. 2d at 123 (citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)), and that formulation of federal rules of law is a function more appropriate to the political than the judicial process. Id. at 313 & n.6, 101 S. Ct. at 1790, 68 L. Ed. 2d at 123-24 (quoting Hart, The Relations Between State and Federal Law, 54 Colum.L.Rev. 489, 497 (1954)). See also Hill, The Law-Making Power of the Federal Courts: Constitutional Pre-emption, 67 Colum.L.Rev. 1024, 1080 (1967). Federal common law, the Court reasoned, is thus appropriate only when a court is compelled to consider a federal question to which Congress has not provided an answer. The making of federal common law is an "unusual exercise", the need for which disappears when Congress addresses the question. 451 U.S. at 314, 101 S. Ct. at 1791, 68 L. Ed. 2d at 124.
The Court relied heavily on Arizona v. California, 373 U.S. 546, 83 S. Ct. 1468, 10 L. Ed. 2d 542 (1963), and Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978). In Arizona v. California several western states engaged in a dispute concerning their respective rights to the water of the Colorado River. The Supreme Court held the judicial doctrine of equitable apportionment inapplicable to the case, because Congress had enacted a method for allocating the water. In Higginbotham the Court refused to allow damages for "loss of society" under the general maritime law, because such damages were unavailable under the Death on the High Seas Act, 46 U.S.C. § 761 et seq. Drawing on the language and reasoning of these two cases, the Court in Milwaukee II concluded that Congress can displace otherwise valid federal common law by enacting legislation in the area. This pre-emption does not depend on whether Congress has "affirmatively proscribed the use of federal common law". 451 U.S. at 315, 101 S. Ct. at 1791, 68 L. Ed. 2d at 125. Rather, the question is whether Congress has "addressed the problem". Id.
Turning to the claims before it, the Supreme Court found relief under federal common law unavailable, because Congress had "occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency". Id. at 316, 101 S. Ct. at 1792, 68 L. Ed. 2d at 126. The Court studied the legislative history and found considerable evidence that the 1972 Amendments were intended as a comprehensive-and by implication exclusive-solution to the problem of water pollution. Id. at 316-319, 101 S. Ct. at 1792-93, 68 L. Ed. 2d at 127-28. More specifically, the Court also found that the FWPCA directly addressed the precise problems for which Illinois sought relief. The effluent limitations established by the Environmental Protection Agency under the Act, see § 301, 33 U.S.C. § 1311, and incorporated into Milwaukee's sewage discharge permits, see § 402(b)(1), 33 U.S.C. § 1342(b) (1), set the federal standards for legal levels of pollutants in discharged sewage, and, the Court found, made common law standards unnecessary. 451 U.S. at 318-319, 101 S. Ct. at 1793-94, 68 L. Ed. at 128. Sewage overflows into Lake Michigan presented no different problem, the Court said, since they are governed by the same permit scheme as the discharges themselves. Id.
Nothing in the Court's opinion in Milwaukee II implies that Congress could not choose to preserve federal common law, even while enacting a parallel legislative solution. The Court considered this possibility, but was not persuaded that Congress intended to do this in the FWPCA. Id. at 324-332, 101 S. Ct. at 1796-1800, 68 L. Ed. 2d at 132-36.*fn4 Since Congress had "addressed the problem", and had not chosen to preserve federal common law remedies, the Court concluded that Illinois had no such remedy available.
Against this background we must consider whether the 1972 Amendments to the FWPCA displaced the federal common law remedy for nuisances resulting from discharges of pollutants into navigable waters before 1972. Illinois and the United States argue that the common law action survives Milwaukee II, because the 1972 Amendments do not address this particular problem. OMC argues that several provisions of the 1972 Amendments do address pre-1972 pollution. Specifically, OMC refers to the provision that authorizes the Administrator of the EPA, in cooperation with the Secretary of the Army, to arrange for removal of in-place toxic pollutants, and appropriates funds for this purpose, § 115, 33 U.S.C. § 1265.*fn5 In addition, OMC relies on the provision authorizing the EPA to enter into agreements with states and municipalities to demonstrate the feasibility and practicality of removing pollutants from the Great Lakes, § 108(a), 33 U.S.C. § 1258(a); the provision directing the EPA to develop practical methods for eliminating "the effects of pollutants from in-place or accumulated sources", § 105(a), 33 U.S.C. § 1255(a); and the provision authorizing federal funds for state cleanup projects under EPA guidelines, § 314, 33 U.S.C. § 1324. These provisions, according to OMC, represent Congress's solution to the problem of pre-1972 pollution, and displace any federal common law solution.
The issue between the parties is thus how broadly to define the "question" that Congress must "address" to displace federal common law. Illinois and the United States invite us to consider that Congress has not addressed the narrow problem of requiring a polluter to abate the nuisance he created before 1972. OMC argues that Congress has "addressed the question", since it has addressed the broader problem ...