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The burden upon a State of sustaining the allegations of its bill is much greater than that imposed upon a complainant in an ordinary suit between private parties. Before the United States Supreme Court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, the threatened invasion of rights must be of serious magnitude and it must be established by clear and convincing evidence.
New York brought this suit against New Jersey and the Passaic Valley Sewerage Commissioners, to enjoin the execution of a project to convey the sewage of the Passaic Valley through a sewer system and to discharge it into a part of New York Harbor, known as the Upper New York Bay. The plaintiffs alleged that the sewage would be carried by the currents and tides into the Hudson and East Rivers and be deposited on the bottom and shores of the Bay and upon and adjacent to the wharves and docks of New York City, and would so pollute the water as to render it a public nuisance, offensive and injurious to persons living near it or using it for bathing or for purposes of commerce, damaging to vessels using the waters, and so poisonous to fish and oysters in it as to render them unfit for food. The United States intervening opposed the plan as threatening, unnecessarily, obstruction of navigable channels, injury to the health of persons navigating the waters and of officials and employees at a navy yard, and damage to government property bordering on the Bay; but withdrew, without prejudice, upon the filing of a stipulation executed by its Attorney General, and by the defendant sewer commissioners acting under authority of an act of the New Jersey legislature, agreeing upon a modification of the method proposed for purifying and dispersing the sewage, specifying the results that must be secured thereby or through requisite additional lawful arrangements, allowing the Government full opportunity to inspect the workings of the sewer system and providing that compliance with the stipulation should be made a condition of any permit issued by the Government for construction, maintenance or operation.
Should New York’s injunction be granted?
The evidence introduced, as to increase of damaging chemical action upon the hulls of vessels by the proposed addition of sewage, and as to danger from air-borne diseases to persons using the water in boats and vessels or working or dwelling upon the shore of the Bay, is much too meager and indefinite to be seriously considered as ground for an injunction, and when it is considered that for many years all of the sewage from the great population of New York City and its environs and from the large cities on the New Jersey shore (estimated, in 1912, at 900 millions of gallons daily) has been discharged into the harbor, quite untreated, the evidence does not justify the conclusion that persons bathing in or that fish or oysters subsisting in such waters can sustain much further damage from the addition to them of the sewage of the Passaic Valley, after it has been treated in the manner proposed in the stipulation with the Government. The complainants have failed to show by the convincing evidence which the law requires that the sewage which the defendants intend to discharge into Upper New York Bay, even if treated only in the manner specifically described in the stipulation with the United States Government, would so corrupt the water of the Bay as to create a public nuisance by causing offensive odors or unsightly deposits on the surface or that it would seriously add to the pollution of it. The evidence taken in 1919 also discloses that other means than those specifically described in the Government stipulation may be resorted to, if needed, for the purpose of improving the character of the effluent from the sewer, viz.: slower and more prolonged sedimentation processes; additional screening; the aeration of the sewage before it reaches the treatment plant and again after treatment and before discharge into the tunnel conveying it to the Bay; and finally, if required, chemical treatment.