406 U.S. 91 (1972), 49, Illinois v. City of Milwaukee

Docket Nº:No. 49, Orig.
Citation:406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712
Party Name:Illinois v. City of Milwaukee
Case Date:April 24, 1972
Court:United States Supreme Court

Page 91

406 U.S. 91 (1972)

92 S.Ct. 1385, 31 L.Ed.2d 712



City of Milwaukee

No. 49, Orig.

United States Supreme Court

April 24, 1972

Argued February 29, 1972



The State of Illinois has filed a motion for leave to file a bill of complaint [92 S.Ct. 1387] against four Wisconsin cities and two local sewerage commissions for allegedly polluting Lake Michigan. Illinois seeks to invoke the Court's original jurisdiction on the ground that the defendants are instrumentalities of Wisconsin, and that this suit is therefore one against the State that must be brought in this Court under Art. III, § 2, cl. 2, of the Constitution, which confers original jurisdiction on the Court "[i]n all cases . . . in which a State shall be a party," and 28 U.S.C. § 1251(a)(1), which provides that the Court shall have "original and exclusive jurisdiction of [all] controversies between two or more States. . . ." Under 28 U.S.C. § 1251(b)(3), the Court has "original but not exclusive" jurisdiction of actions by a State against citizens of another State, and under § 1331(a), a district court has original jurisdiction "of all civil actions wherein the matter in controversy exceeds $10,000 . . . and [arises] under the Constitution [or] laws . . . of the United States."


1. Though Wisconsin could be joined as a defendant here under appropriate pleadings, it is not mandatory that it be made one, and its political subdivisions are not "States" within the meaning of 28 U.S.C. § 1251(a)(1). If those subdivisions may be sued by Illinois in a federal district court, this Court's original jurisdiction under § 1251(b)(3) is merely permissible, not mandatory. Pp. 93-98.

2. In this case, the appropriate federal district court has jurisdiction under 28 U.S.C. § 1331(a) to give relief against the nuisance of interstate water pollution and is the proper forum for litigation of the issues here involved. Pp. 98-101.

(a) The jurisdictional amount requirement of § 1331(a) is satisfied in this action involving the purity of interstate waters. P. 98.

(b) Pollution of interstate or navigable waters creates actions under the "laws" of the United States within the meaning of

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§ 1331(a), since the term "laws" embraces claims like the one here involved founded on federal common law, as well as those of statutory origin. Pp. 99-100.

(c) Under § 1331(a), a State may sue a defendant other than another State in a district court. Pp. 100-101.

3. Federal common law applies to air and water in their ambient or interstate aspects. Pp. 101-108.

(a) The application of federal common law to abate the pollution of interstate or navigable waters is not inconsistent with federal enforcement powers under the Water Pollution Control Act. Pp. 101-104.

(b) While federal environmental protection statute may be sources of federal common law, they will not necessarily form the outer limits of such law. Pp. 103, 107.

(c) State environmental quality standards are relevant, but not conclusive, source of federal common law. P. 107.

(d) Federal equity courts have a wide range of powers to grant relief against pollution of this sort. Pp. 107-108.

Motion denied.

DOUGLAS, J., delivered the opinion for a unanimous Court.

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DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

This is a motion by Illinois to file a bill of complaint under our original jurisdiction against four cities of Wisconsin, the Sewerage Commission of the City of Milwaukee, and the Metropolitan Sewerage Commission of the County of Milwaukee. The cause of action alleged is pollution by the defendants of Lake Michigan, a body of interstate water. According to plaintiff, some 200 million gallons of raw or inadequately treated sewage and other waste materials are discharged daily into the lake in the Milwaukee area alone. Plaintiff alleges that it and its subdivisions [92 S.Ct. 1388] prohibit and prevent such discharges, but that the defendants do not take such actions. Plaintiff asks that we abate this public nuisance.


Article III, § 2, cl. 2, of the Constitution provides: "In all Cases . . . in which a State shall be Party, the supreme Court shall have original Jurisdiction." Congress has provided in 28 U.S.C. § 1251 that "(a) the Supreme Court shall have original and exclusive jurisdiction of: (1) All controversies between two or more States."

It has long been this Court's philosophy that "our original jurisdiction should be invoked sparingly." Utah v. United States, 394 U.S. 89, 95. We construe 28 U.S.C. § 1251(a)(1), a we do Art. III, § 2, cl. 2, to honor our original jurisdiction but to make it obligatory only in appropriate cases. And the question of what is appropriate concerns, of course, the seriousness and dignity of the claim; yet, beyond that, it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We

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incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer. Washington v. General Motors Corp., post, p. 109. Illinois presses its request for leave to file, saying that the agencies named as defendants are instrumentalities of Wisconsin, and therefore that this is a suit against Wisconsin which could not be brought in any other forum. Under our decisions, there is no doubt that the actions of public entities might, under appropriate pleadings, be attributed to a State so as to warrant a joinder of the State as party defendant. In Missouri v. Illinois, 180 U.S. 208, Missouri invoked our original jurisdiction by an action against the State of Illinois and the Sanitary District of the City of Chicago, seeking an injunction to restrain the discharge of raw sewage into the Mississippi River. On a demurrer to the motion for leave to file a bill of complaint, Illinois argued that the Sanitary District was the proper defendant, and that Illinois should not have been made a party. That argument was rejected:

The contention . . . seems to be that, because the matters complained of in the bill proceed and will continue to proceed from the acts of the Sanitary District of Chicago, a corporation of the State of Illinois, it therefore follows that the State, as such, is not interested in the question, and is improperly made a party.

We are unable to see the force of this suggestion. The bill does not allege that the Sanitary District is acting without or in excess of lawful authority. The averment and the conceded facts are that the corporation is an agency of the State to do the very things which, according to the theory of the complainant's case, will result in the mischief to be apprehended.

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It is state action and its results that are complained of -- thus distinguishing this case from that of Louisiana v. Texas [176 U.S. 1], where the acts sought to be restrained were alleged to be those of officers or functionaries proceeding in a wrongful and malevolent misapplication of the quarantine laws of Texas. The Sanitary District of Chicago is not a private corporation, formed for purposes of private gain, but a public corporation, whose existence and operations are wholly within the control of the State.

The object of the bill is to subject this public work to judicial supervision, upon the allegation that the method of its construction and maintenance will create a continuing nuisance, dangerous to the health of a neighboring State and its inhabitants. Surely, in such a case, the State of [92 S.Ct. 1389] Illinois would have a right to appear and traverse the allegations of the bill, and, having such a right, might properly be made a party defendant.

180 U.S. at 242.

In New York v. New Jersey, 256 U.S. 296, the State of New York brought an original action against the State of New Jersey and the Passaic Valley Sewerage Commissioners, seeking an injunction against the discharge of sewage into Upper New York Bay. The question was whether the actions of the sewage agency could be attributed to New Jersey so as to make that State responsible for them. The Court said:

Also, for the purpose of showing the responsibility of the State of New Jersey for the proposed action of the defendant, the Passaic Valley Sewerage Commissioners, the bill sets out, with much detail, the acts of the legislature of that State authorizing and directing such action on their part.

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Of this, it is sufficient to say that the averments of the bill, quite undenied, show that the defendant sewerage commissioners constitute such a statutory, corporate agency of the State that their action, actual or intended, must be treated as that of the State itself, and we shall so regard it.

256 U.S. at 302.

The most recent case is New Jersey v. New York, 345 U.S. 369. The action was originally brought by the State of New Jersey against the City and State of New York for injunctive relief against the diversion of waters from Delaware River tributaries lying within New York State. Pennsylvania was subsequently allowed to intervene. The question presented by this decision was the right of the City of Philadelphia also to intervene in the proceedings as a party plaintiff. The issues raised were broad:

All of the present parties to the litigation have formally opposed the motion to intervene on grounds (1) that the intervention would permit a suit against a state by a citizen of another state in contravention of the Eleventh Amendment; (2) that the Commonwealth of Pennsylvania has the exclusive right to represent the interest of Philadelphia as parens patriae; and (3) that intervention should be denied, in any event, as a matter of sound discretion.

345 U.S. at 372. We denied the City of Philadelphia's motion to intervene, saying:

The City of...

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