Lexis Nexis - Case Brief

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Law School Case Brief

Milwaukee v. Illinois - 451 U.S. 304, 101 S. Ct. 1784 (1981)


When Congress has not spoken to a particular issue, however, and when there exists a significant conflict between some federal policy or interest and the use of state law, the court has found it necessary, in a few and restricted instances, to develop federal common law. Federal common law is subject to the paramount authority of Congress. It is resorted to in absence of an applicable Act of Congress, and because the court is compelled to consider federal questions, which cannot be answered from federal statutes alone. Federal common law is a "necessary expedient," and when Congress addresses a question previously governed by a decision rested on federal common law the need for such an unusual exercise of lawmaking by federal courts disappears.


In original proceedings brought by respondent State of Illinois, alleging that petitioners, the city of Milwaukee, its Sewerage Commission, the Milwaukee County's Metropolitan Sewerage Commission, and other Wisconsin cities, were polluting Lake Michigan because of overflows of untreated sewage from their sewer systems and discharges of inadequately treated sewage from their treatment plants, the United States Supreme Court recognized the existence of a federal "common law" which could give rise to a claim for abatement of a nuisance caused by interstate water pollution, but declined to exercise original jurisdiction because of the availability of a lower court action. Accordingly, Illinois filed suit (and respondent State of Michigan intervened) in Federal District Court seeking abatement, under federal common law, of the public nuisance petitioners were allegedly creating by their discharges. Five months later, Congress passed the Federal Water Pollution Control Act (Act) Amendments of 1972, which established a new system of regulation making it illegal to discharge pollutants into the Nation's waters except pursuant to a permit that incorporated as conditions regulations of the Environmental Protection Agency (EPA) establishing specific effluent limitations. Permits are issued either by the EPA or a qualifying state agency, and petitioners operated their sewer systems under permits issued by the Wisconsin Department of Natural Resources (DNR). While the federal-court action was pending, DNR brought an action in a Wisconsin state court to compel compliance with the permits' requirements, and the state court entered a judgment requiring discharges from the treatment plants to meet effluent limitations in the permits and establishing a timetable for additional construction to control sewage overflows. Thereafter, the District Court found that the existence of a federal common-law nuisance had been proved and entered a judgment specifying effluent limitations for treated sewage and a construction timetable to eliminate overflows that went considerably beyond the terms of petitioners' permits and the state court's enforcement order. The Court of Appeals, ruling that the 1972 Amendments of the Act had not preempted the federal common law of nuisance, upheld the District Court's order as to elimination of overflows, but reversed insofar as the District Court's effluent limitations on treated sewage were more stringent than those in the petitioners' permits and applicable EPA regulations.


Did the Court of Appeals err in holding that the Federal Water Pollution Control Act did not preempt the federal common law of nuisance?




The Court held that Act established an all-encompassing program of water pollution regulation and preempted federal common law. The Act thoroughly addressed the problem of effluent limitations, and there was no basis for the lower court to impose more stringent limitations than those imposed under the regulatory regime.

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