City of Milwaukee v. Illinois, 451 U.S. 304 (1981)

Milwaukee Combined Sewer Outlet at Becher, photographed in 1931. The original can be found at Urban Milwaukee in their story "How The Sewerage District Came of Age"



City of Milwaukee v. Illinois


Illinois v. Milwaukee was decided months before the modern Clean Water Act was adopted in 1972. The rematch, City of Milwaukee v. Illinois was decided in 1981 - could Illinois still rely on its federal common law nuisance claims against Milwaukee despite the massive new federal regulatory program?

The Facts

Milwaukee has a lot of sewers that discharge into Lake Michigan not too far from the Illinois border. Milwaukee has some sewers that are separated - there are pipes for rain water and pipes for poop-sewage - and some that are combined - there’s one set of pipes for both rain water and poop sewage. Both sewers are susceptible to overflowing - being purposefully re-routed to empty directly into Lake Michigan - but combined sewers are especially likely to overflow because the influx of rainwater or snow melt can overwhelm the system’s capacity.
Sewage contains pathogens (especially bacteria and viruses) that can make swimmers or (god forbid) drinkers very sick. Sewage also has a lot of phosphorus, nitrogen, and other fertilizers that can change water chemistry, allow algae to grow, and crash dissolved oxygen in lake water - making it impossible for many fish and other aquatic organisms to live.
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As the courts below found, the sewer systems operated by petitioners include some 239 bypass or overflow points from which raw sewage is discharged directly into Lake Michigan or into rivers that flow into the lake. In a single month in 1976, discharge from 11 of the 239 discrete overflow points amounted to some 646 million gallons of untreated sewage. The trial court determined that these untreated fecal wastes, containing billions of pathogenic bacteria and viruses, are periodically transported by prevailing currents into the Illinois waters of Lake Michigan. The court further found that the presence of these pathogens in Illinois waters poses a significant risk of injury to Illinois residents, threatening to contaminate drinking water supplies and infect swimmers.(451 U.S. 351)
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On April 24, 1972, Illinois v. Milwaukee I was decided in the Supreme Court, sending Illinois’ federal common law nuisance claim to district court. On May 19, 1972, largely concerned about Milwaukee’s poop’s impact on Chicago beaches, Illinois filed its claim against Milwaukee in the Northern District of Illinois; five months later, Congress passed the Clean Water Act of 1972. In 1977, the District Court finally ruled that Illinois had proved a nuisance and ordered a remedy that went considerably beyond Milwaukee’s Clean Water Act permit. 
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The court ordered petitioners to eliminate all overflows and to achieve specified effluent limitations on treated sewage. A judgment order entered on November 15 specified a construction timetable for the completion of detention facilities to eliminate overflows. Separated sewer overflows are to be completely eliminated by 1986; combined sewer overflows by 1989. The detention facilities to be constructed must be large enough to permit full treatment of water from any storm up to the largest storm on record for the Milwaukee area. (451 U.S. 311-312)
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The Seventh Circuit suggested that the District Court had perhaps gone a little far, but ruled that common law claims for nuisance were not precluded by the Clean Water Act. The Supreme Court took the case to determine what effect, if any, the Clean Water Act had on federal common law claims like nuisance.

The Law

In law school, everyone is made to read the 1938 Supreme Court case Erie Railroad Company v. Tompkins. The upshot of Erie - to the extent that it’s upshotabe - is that federal courts cannot create common law in diversity cases, they must apply the state common law that is most applicable to the dispute. So in Erie, where poor Tompkins, a Pennsylvania resident, was hit by a train in Pennsylvania, the District Court had to apply Pennsylvania law, not general federal common law.

Federal courts, unlike state courts, are not general common-law courts and do not possess a general power to develop and apply their own rules of decision. The enactment of a federal rule in an area of national concern, and the decision whether to displace state law in doing so, is generally made not by the federal judiciary, purposefully insulated from democratic pressures, but by the people through their elected representatives in Congress. Erie recognized as much in ruling that a federal court could not generally apply a federal rule of decision, despite the existence of jurisdiction, in the absence of an applicable Act of Congress. (451 U.S. 312-313)
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Here, the Court needed to decide a different - but to some justices, related - question: Whether the federal common law that exists exists alongside the new comprehensive Clean Water Act, or whether the act displaces it.

The Majority Opinion

Six justices - Rehnquist (writing), Brennan, Stewart, White, Powell, and Chief Justice Burger - formed the majority opinion. Their central conclusion is that federal common law is subject to the paramount authority of congress, and federal common law exits in the spaces between federal statutes. By passing a new and comprehensive statute, congress displaces the federal common law in that area.

We have always recognized that 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 law-making by federal courts disappears. (451 U.S. 313-314)



Were federal common law to persist in place of a competing federal statute, the courts would unacceptably seize Congress’s power to make laws while retaining their own power to interpret the law; that would be a serious separation of powers issue.

Federal courts are often asked whether federal law preempts state law, and surely the reader can find another blog better suited to parse the millions of cases on federal preemption. The Rehnquist majority declines to use the test for federal preemption to determine whether the Clean Water Act preempts federal nuisance law. In federal preemption, courts accord weight to state law - state sovereignty requires that state law is only superseded if congress clearly and manifestly intended to do so. When deciding between federal statutes and federal common law, future courts will stat with the assumption that statues displace the overlapping common law.
Here, it’s easy for the Court to decide that Congress has “occupied the field” (confusingly worded, because that’s a term of art in federal preemption caselaw) because the Clean Water Act is a comprehensive statute administered by expert agencies. It is important that the act is comprehensive because it leaves no gap left for common law to fill; it is important that the statute is administered by expert agencies because courts are not sophisticated in water pollution science and would make less informed decisions than EPA or state environmental agencies.

We conclude that, at least so far as concerns the claims of respondents, Congress has not left the formulation of appropriate federal standards to the courts through application of often vague and indeterminate nuisance concepts and maxims of equity jurisprudence, but rather has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency. The 1972 Amendments to the Federal Water Pollution Control Act were not merely another law touching interstate waters of the sort surveyed in Illinois v. Milwaukee and found inadequate to supplant federal common law. Rather, the Amendments were viewed by Congress as a total restructuring and complete rewriting of the existing water pollution legislation considered in that case. Congress' intent in enacting the Amendments was clearly to establish an all-encompassing program of water pollution regulation. (541 U.S. 317-318)

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Here, the questions of how the Milwaukee system is allowed to discharge sewage and what pollutants it may discharge are governed by the Clean Water Act’s permitting system. Federal courts lack authority to impose more stringent effluent limitations under federal common law than those imposed under the Clean Water Act. 
The majority does not find arguments that Congress intended to preserve federal common law remedies persuasive. Section 510 of the act provides that nothing in the act precludes States from adopting and enforcing more stringent standards than those in the act, but there’s no reason to suppose this power also belongs to federal courts. Section 505(e) provides that nothing in §505 - the citizen suit provision - limits other remedies which might exist, but it’s not §505 that displaces federal common law remedies, its the entire Act’s comprehensive regulation of water pollution. 
It is interesting that this case, coming as it did before the rise of strict constructionism (or originalism, or whatever it is you want to call it), goes deep into the congressional record to consider statements by senators and representatives about what they think the Act was meant to do. I think neither side makes much ground against the other by doing this, and tend to agree with those who think legislative history isn’t probative into the meaning of a statute, so I won’t spend additional time talking about what Senator Muskie thought, or what Senator Hart’s concerns were. If the reader is interested, it’s there for you to read.

The Dissent

Three Justices - Blackmun (writing), Marshall and Stevens - dissented. They believed that Congress did not intend to extinguish federal common-law remedies like nuisance. They thought that the majority fails, first, to consider that federal common law is on firmer footing in disputes between states and, second, the frequently recognized ways that federal common law can complement congressional action. 
When one state sues another, it may be inappropriate to use either state’s laws to resolve the dispute. Here, Wisconsin and Illinois are both sovereign within their borders, and federal common law can help resolve these disputes fairly and consistently. Moreover, federal common law nuisance has existed for years, and federal regulation of water quality (as slipshod as it was) likewise existed for years - why should this act extinguish federal common law nuisance in the clean water context when it never explicitly claims to?
Since the dissent would have preserved the federal common law nuisance remedy for Illinois, they must decide wether the lower courts applied the common law reasonably. Justice Blackmun believed that they had.

The lower courts in this case carefully evaluated the regulatory systems developed by each State to deal with the overflow problem. It was determined that the standards promulgated under the Illinois regulatory scheme were more stringent than those developed by the Wisconsin agency or imposed on petitioners under the Wisconsin state-court judgment. The District Court's order imposed standards that reflected the more rigorous approach adopted in Illinois to restore and protect Illinois waters. The Court of Appeals noted that Wisconsin had allowed petitioners more time in which to eliminate or "correct" the overflow problem, but that petitioners conceded the feasibility of complying with the District Court's deadlines. In my view, the Court of Appeals acted responsibly and in a manner wholly consistent with the common-law jurisdiction envisioned by the Court in Illinois v. Milwaukee. (451 U.S. 352-353)

Interestingly, the dissent appears to believe that the Clean Water Act does not regulate combined sewer outfalls, whereas the majority believes they’re regulated like any other point source. While EPA has gone through additional lengths to regulate combined sewer systems, I don’t believe there is a defensible argument that Combined Sewer Outfalls are not point sources under the meaning of the Clean Water Act.
Finally, the dissent fears that the majority opinion will encourage forum shopping. They fear that states will turn to their own courts to try to avail themselves of state common law remedies to supplement the Clean Water Act. Please correct me if I’m wrong, but I don’t believe this has become a major problem.

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