Committee for Consideration of Jones Falls Sewage System v. Train
| Decision Date | 16 July 1976 |
| Docket Number | No. 74-2076,74-2076 |
| Citation | 539 F.2d 1006 |
| Parties | , 6 Envtl. L. Rep. 20,703 COMMITTEE FOR the CONSIDERATION OF the JONES FALLS SEWAGE SYSTEM, an association of neighborhood and community organizations and persons, et al., Appellants, v. Russell E. TRAIN, Individually and as Administrator of the United States Environmental Protection Agency, et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Karin P. Sheldon, Washington, D. C. (Roisman, Kessler & Cashdan, Washington, D. C., on brief), for appellants.
Searle E. Mitnick, Baltimore, Md. (Charles B. Heyman, Kaplan, Heyman, Engelman & Belgrad, Baltimore, Md., on brief), for intervenor.
Harry S. Shapiro, Chief Asst. Sol. of Baltimore County, Towson, Md. , for appellees.
Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, sitting En Banc.
The question is whether there is a body of federal common law conferring rights upon private citizens to enjoin intra-state stream pollution which is not enjoinable under the Federal Water Pollution Control Act Amendments of 1972. 33 U.S.C.A. § 1251 et seq. We hold there is not.
Jones Falls Stream, which flows into the Patapsco River and thence into Baltimore Harbor, from time to time is polluted by untreated sewage flowing over the weir of the Jones Falls Sewage System treatment plant.
A group of citizens living near Jones Falls Stream or frequenting its banks joined as plaintiffs in this action seeking injunctive relief under the federal statute. It soon appeared, however, that they had no cause of action under the statute, for the city officials had submitted to the Maryland Department of Public Works a timely and properly supported application for a discharge permit under the provisions of § 1342(k). That section provides that, during the pendency of a timely and properly supported application, discharges shall not be in violation of the statute. Later, during the pendency of this litigation, the state agency, with the authorization of the Environmental Protection Agency, actually issued a permit since there was a finding that the present statutory standards were being met.
Permitting an interim discharge of pollutants is in accordance with the comprehensive regulatory scheme of the Federal Water Pollution Control Act Amendments of 1972. Its ultimate objective is the elimination of all water pollution. Purity however is not to be achieved or required instantaneously. Instead the Act establishes a series of steps which impose progressively stricter standards until the final elimination of all pollutant discharges is achieved, that being envisioned for the year 1985.
When it appeared that the plaintiffs might have no cause of action under the statute, they tendered an amended complaint alleging also a federal common law right of action to obtain an injunction against further connections to the sewer line emptying into the Jones Falls Stream. The amended complaint was rejected because the district court concluded there was no federal jurisdiction to consider the claim. We come to the same result, but we reach it on the merits, concluding that the amended complaint stated no claim upon which relief may be granted.
When the Supreme Court in 1938 decided Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, it reversed the course of earlier judicial history during which federal courts had fashioned their own substantive rules of law for application to controversies within the diversity jurisdiction. In halting that course, the Supreme Court declared, supra at 78, 58 S.Ct. at 822:
There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.
While Erie's doctrine has remained one of the fundamental ties of our federalist system of government, absolutisms seldom remain absolute. Since Erie, some federal common law has evolved.
This "new federal common law" 1 respecting waters 2 came into being as a necessary expedient in the resolution of interstate controversies. When ranchers in New Mexico used a pesticide which polluted streams in Texas upon which Texas citizens were dependent for drinking water, 3 or when cities and sewage commissions in Wisconsin cast insufficiently treated sewerage into Lake Michigan which polluted beaches in Illinois, 4 the federal courts were confronted with a dilemma. The law of the state whose citizens were subject to injuries by the interstate pollution ought not to govern the conduct of citizens and municipalities in another state, while to apply the law of the offending state would be a utilization of the laws of a state whose selfish interest was in the protection of the offenders, herself, her political subdivisions or her citizens. Of necessity, the Court of Appeals for the Tenth Circuit, in 1971, in Pankey, and the Supreme Court, in 1972, in Illinois v. Milwaukee, turned to a body of federal common law for the resolution of interstate pollution controversies when a state sought extra-territorial relief on behalf of her citizens. 5
We may thus take it as established that there is a body of federal common law by which a public nuisance in one state which infringes upon the environmental and ecological rights of another state may be abated. As thus applied, there is an acceptable accommodation of state and national interests. 6
Too, as the Supreme Court observed in Illinois v. Milwaukee, there is much federal interest in interstate and navigable waters. The existence of the Federal Water Pollution Control Act attests to the federal interest in interstate waters. Yet, the statute was largely designed to enlist the aid of the states and, through state action, to achieve the final objective of purity of waters. As the Congress stated in § 1251(b) of the Act:
It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, . . . .
Perhaps with the exception of actions by the United States to abate public nuisances created in navigable waters by polluters, 7 but consistent with § 1251(b), the doctrine of Illinois v. Milwaukee has not been extended beyond the abatement of public nuisances in interstate controversies where the complainant is a state and the offenders are creating extra-territorial harm. 8 In controversies such as this one, there is present neither the reason nor the necessity for the invocation of a body of federal common law which was present in Illinois v. Milwaukee. This intrastate controversy is entirely local. The plaintiffs are Maryland citizens complaining of the conduct of public officials of the City and County of Baltimore, Maryland. It is not contended that the alleged pollution of Jones Falls Stream has any effect outside the State of Maryland, and no other state is complaining of it. Maryland law is perfectly adequate for the resolution of such disputes between some of her citizens and some of her public officials. To the extent there is a federal interest, it is expressed in the Federal Water Pollution Control Act Amendments of 1972, but the plaintiffs have no claim based upon that statute.
Indeed, it would be an anomaly to hold that there was a body of federal common law which proscribes conduct which the 1972 Act of Congress legitimates. The defendants are in compliance with the statute. They are operating under a permit issued in accordance with the statute and the authorization of the Environmental Protection Agency. The Congress and the Executive Department, acting through the Environmental Protection Agency, have declared their conduct lawful until the time for the application of more restrictive standards. While the state courts are free to apply state nuisance law more rigidly, 9 a federal court in such a local controversy may not turn to a supposed body of federal common law to impose stricter standards than the statute provides.
That the rule of Illinois v. Milwaukee is limited to interstate controversies in which the rights of a state are sought to be vindicated, is supported not only by the absence of any underlying reason and necessity for an extension of the rule but by the recent case of Reserve Mining Co. v. Environmental Protection Agency, 8 Cir., 514 F.2d 492, 520, 521 (En Banc). There the United States and the States of Michigan, Minnesota and Wisconsin were among the plaintiffs seeking to enjoin Reserve Mining's discharge of taconite tailings into Lake Superior. The Court of Appeals for the Eighth Circuit, while granting relief on other grounds, held that the rule of Illinois v. Milwaukee was inapplicable, notwithstanding the presence of the state plaintiffs, because no interstate effect was alleged.
Here, where the controversy is strictly local, where there is no claim of vindication of the rights of another state and where there is no allegation of any interstate effect, we conclude there is no body of federal common law to which the plaintiffs may resort in their effort to obtain judicial relief from discharges which the federal statute and the federal regulatory agency permit.
Since the amended complaint did not state a claim upon which relief...
To continue reading
Request your trial
-
Township of Long Beach v. City of New York
... ... Train, Administrator of the Environmental Protection ... Furthermore, in Committee for the Consideration of the Jones Falls Sewage ... ...
-
United States v. SOLVENTS RECOVERY SERV., ETC.
... ... Upon consideration of the statutory language, the legislative ... cause cell mutations, damage the nervous system and induce liver disorders. The nervous, ... (1979) (pollution of navigable waters); Committee for Consideration of Jones Falls Sewage System v. Train, 539 F.2d 1006, 1010 (4th Cir. 1976) (pollution ... ...
-
Bd. of Cnty. Commissioners of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc.
... ... decision, and remanded for further consideration in light of its decision in BP v. Mayor & City ... on other grounds by statute , The Jones Act, 45 U.S.C. 59, as recognized in Miles v ... an action provided at least one claim falls within original federal jurisdiction. 28 U.S.C ... intent, judicial power, and the federal system." Id. at 810, 106 S.Ct. 3229. And it has ... allegedly created by Lake Michigan sewage discharges. Id. at 310, 101 S.Ct. 1784. The ... v. Train , 539 F.2d 1006, 1008 (4th Cir. 1976) ). The ... ...
-
U.S. v. Hooker Chemicals & Plastics Corp.
... ... Petroleum Corp. & City of Niagara Falls, ... N.Y. ("S"-Area Landfill), Defendants, ... (d) to install a leachate collection system and destroy any leachate subsequently collected ... to the settlement, and after due consideration, the Department of Justice concluded that this ... has found support elsewhere, see, e.g., Committee for Consideration of Jones Falls Sewage Sys. v ... v. Train, 387 F.Supp. 526, 529-30 & n. 3 (D.Md.1975); ... ...
-
Interstate Water Pollution, Federal Common Law, and the Clean Water Act
...by a decision rested on federal common law the need 76. See , e.g. , Committee for Consideration of Jones Falls Sewage Sys. v. Train, 539 F.2d 1006, 1010, 6 ELR 20703 (4th Cir. 1976) (holding that a plaintiff could not use the federal common law of nuisance to address purely local problems)......