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U.S. Supreme Court


406 U.S. 91

No. 49, Orig.
Argued February 29, 1972
Decided April 24, 1972

The State of Illinois has filed a motion for leave to file a bill of complaint 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." Held:

Motion denied.

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

Fred F. Herzog argued the cause for plaintiff. With him on the briefs was William J. Scott, Attorney General of Illinois.

Harry G. Slater argued the cause for defendants. With him on the brief for defendant City of Milwaukee were John J. Fleming and Richard F. Maruszewski. Michael S. Fisher and Burton A. Scott filed a brief for defendant City of Kenosha. Jack Harvey, Edward A. Krenzke, and Louis J. Roshar filed a brief for defendant City of Racine. Mr. Fleming and Harvey G. Odenbrett filed a brief for defendant Sewerage Commission of the City of Milwaukee. Ewald L. Moerke, Jr., filed a brief for defendant Metropolitan Sewerage Commission of the County of Milwaukee. [406 U.S. 91, 93]  

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 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), as 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 [406 U.S. 91, 94]   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:

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:

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:

We denied the City of Philadelphia's motion to intervene, saying:

We added:

We conclude that while, under appropriate pleadings, Wisconsin could be joined as a defendant in the present controversy, it is not mandatory that it be made one.

It is well settled that for the purposes of diversity of citizenship, political subdivisions are citizens of their respective States. 1 Bullard v. City of Cisco, 290 U.S. 179 ; [406 U.S. 91, 98]   Cowles v. Mercer County, 7 Wall. 118, 122. If a political subdivision is a citizen for diversity purposes, then it would make no jurisdictional difference whether it was the plaintiff or defendant in such an action. That being the case, a political subdivision in one State would be able to bring an action founded upon diversity jurisdiction against a political subdivision of another State.

We therefore conclude that the term "States" as used in 28 U.S.C. 1251 (a) (1) should not be read to include their political subdivisions. That, of course, does not mean that political subdivisions of a State may not be sued under the head of our original jurisdiction, for 28 U.S.C. 1251 provides that "(b) the Supreme Court shall have original but not exclusive jurisdiction of: (3) all actions or proceedings by a State against the citizens of another State . . . ."

If the named public entities of Wisconsin may, however, be sued by Illinois in a federal district court, our original jurisdiction is not mandatory.

It is to that aspect of the case that we now turn.


Title 28 U.S.C. 1331 (a) provides that "[t]he district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."

The considerable interests involved in the purity of interstate waters would seem to put beyond question the jurisdictional amount provided in 1331 (a). See Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121 ; Mississippi & Missouri R. Co. v. Ward, 2 Black 485, 492; Ronzio v. Denver & R. G. W. R. Co., 116 F.2d 604, 606; C. Wright, The Law of Federal Courts 117-119 (2d ed. 1970); Note, 73 Harv. L. Rev. 1369. [406 U.S. 91, 99]   The question is whether pollution of interstate or navigable waters creates actions arising under the "laws" of the United States within the meaning of 1331 (a). We hold that it does; and we also hold that 1331 (a) includes suits brought by a State.

MR. JUSTICE BRENNAN, speaking for the four members of this Court in Romero v. International Terminal Operating Co., 358 U.S. 354, 393 (dissenting and concurring), who reached the issue, concluded that "laws," within the meaning of 1331 (a), embraced claims founded on federal common law:

Lower courts have reached the same conclusion. See, e. g., Murphy v. Colonial Federal Savings & Loan Assn., 388 F.2d 609, 611-612 (CA2 1967); Stokes v. Adair, 265 F.2d 662 (CA4 1959); Mater v. Holley, 200 F.2d 123 (CA5 1952); American Law Institute, Study of the Division of Jurisdiction Between State and Federal Courts 180-182 (1969).

Judge Harvey M. Johnsen in Texas v. Pankey, 441 F.2d 236, 240, stated the controlling principle:

Chief Judge Lumbard, speaking for the panel in Ivy Broadcasting Co. v. American Tel. & Tel. Co., 391 F.2d 486, 492, expressed the same view as follows:

We see no reason not to give "laws" its natural meaning, see Romero v. International Terminal Operating Co., supra, at 393 n. 5 (BRENNAN, J., dissenting and concurring), and therefore conclude that 1331 jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.

As respects the power of a State to bring an action under 1331 (a), Ames v. Kansas, 111 U.S. 449, 470 -472, is controlling. There Kansas had sued a number of corporations in its own courts and, since federal rights were involved, the defendants had the cases removed to the federal court. Kansas resisted, saying that the federal court lacked jurisdiction because of Art. III, [406 U.S. 91, 101]   2, cl. 2, of the Constitution, which gives this Court "original Jurisdiction" in "all Cases . . . in which a State shall be Party." The Court held that where a State is suing parties who are not other States, the original jurisdiction of this Court is not exclusive (id., at 470) and that those suits "may now be brought in or removed to the Circuit Courts [now the District Courts] without regard to the character of the parties." 2 Ibid. We adhere to that ruling.


Congress has enacted numerous laws touching interstate waters. In 1899 it established some surveillance by the Army Corps of Engineers over industrial pollution, not including sewage, Rivers and Harbors Act of March 3, 1899, 30 Stat. 1121, a grant of power which we construed in United States v. Republic Steel Corp., 362 U.S. 482 , and in United States v. Standard Oil Co., 384 U.S. 224 .

The 1899 Act has been reinforced and broadened by a complex of laws recently enacted. The Federal Water Pollution Control Act, 62 Stat. 1155, as amended, 33 U.S.C. 1151, tightens control over discharges into navigable waters so as not to lower applicable water quality standards. By the National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. 4321 et seq., Congress "authorizes and directs" that "the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act" and that "all agencies of the Federal Government shall . . . identify and develop methods and procedures . . . which will insure that presently unquantified environmental amenities and values [406 U.S. 91, 102]   may be given appropriate consideration in decisionmaking along with economic and technical considerations." Sec. 102, 42 U.S.C. 4332. Congress has evinced increasing concern with the quality of the aquatic environment as it affects the conservation and safeguarding of fish and wildlife resources. See, e. g., Fish and Wildlife Act of 1956, 70 Stat. 1119, 16 U.S.C. 742a; the Act of Sept. 22, 1959, 73 Stat. 642, authorizing research in migratory marine game fish, 16 U.S.C. 760e; and the Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 16 U.S.C. 661.

Buttressed by these new and expanding policies, the Corps of Engineers has issued new Rules and Regulations governing permits for discharges or deposits into navigable waters. 36 Fed. Reg. 6564 et seq.

The Federal Water Pollution Control Act in 1 (b) declares that it is federal policy "to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution." But the Act makes clear that it is federal, not state, law that in the end controls the pollution of interstate or navigable waters. 3 While the States are given time to establish water quality standards, 10 (c) (1), if a State fails to do so the federal administrator 4 promulgates one. 10 (c) (2). Section 10 (a) makes pollution of interstate or navigable waters subject "to abatement" when it "endangers the health or welfare of any persons." [406 U.S. 91, 103]   The abatement that is authorized follows a long-drawn-out procedure unnecessary to relate here. It uses the conference procedure, hoping for amicable settlements. But if none is reached, the federal administrator may request the Attorney General to bring suit on behalf of the United States for abatement of the pollution. 10 (g).

The remedy sought by Illinois is not within the precise scope of remedies prescribed by Congress. Yet the remedies which Congress provides are not necessarily the only federal remedies available. "It is not uncommon for federal courts to fashion federal law where federal rights are concerned." Textile Workers v. Lincoln Mills, 353 U.S. 448, 457 . When we deal with air and water in their ambient or interstate aspects, there is a federal common law, 5 as Texas v. Pankey, 441 F.2d 236, recently held. [406 U.S. 91, 104]  

The application of federal common law to abate a public nuisance in interstate or navigable waters is not inconsistent with the Water Pollution Control Act. Congress provided in 10 (b) of that Act that, save as a court may decree otherwise in an enforcement action, "[s]tate and interstate action to abate pollution of interstate or navigable waters shall be encouraged and shall not . . . be displaced by Federal enforcement action."

The leading air case is Georgia v. Tennessee Copper Co., 206 U.S. 230 , where Georgia filed an original suit in this Court against a Tennessee company whose noxious gases were causing a wholesale destruction of forests, orchards, and crops in Georgia. The Court said:

The nature of the nuisance was described as follows:

Our decisions concerning interstate waters contain the same theme. Rights in interstate streams, like questions of boundaries, "have been recognized as presenting federal questions." 6 Hinderlider v. La Plata Co., 304 U.S. 92, 110 . The question of apportionment of interstate waters is a question of "federal common law" upon which state statutes or decisions are not conclusive. 7 Ibid.

In speaking of the problem of apportioning the waters of an interstate stream, the Court said in Kansas v. Colorado, 206 U.S. 46, 98 , that "through these successive disputes and decisions this court is practically building up what may not improperly be called interstate common [406 U.S. 91, 106]   law." And see Texas v. New Jersey, 379 U.S. 674 (escheat of intangible personal property), Texas v. Florida, 306 U.S. 398, 405 (suit by bill in the nature of interpleader to determine the true domicile of a decedent as the basis of death taxes).

Equitable apportionment of the waters of an interstate stream has often been made under the head of our original jurisdiction. Nebraska v. Wyoming 325 U.S. 589 ; Kansas v. Colorado, supra; cf. Arizona v. California, 373 U.S. 546, 562 . The applicable federal common law depends on the facts peculiar to the particular case.

When it comes to water pollution this Court has spoken in terms of "a public nuisance," 8 New York v. New Jersey, [406 U.S. 91, 107]   256 U.S., at 313 ; New Jersey v. New York City, 283 U.S. 473, 481 , 482. In Missouri v. Illinois 200 U.S. 496, 520 -521, the Court said, "It may be imagined that a nuisance might be created by a State upon a navigable river like the Danube, which would amount to a casus belli for a State lower down, unless removed. If such a nuisance were created by a State upon the Mississippi the controversy would be resolved by the more peaceful means of a suit in this court."

It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution. While federal law governs, 9 consideration of state standards may be relevant. Cf. Connecticut v. Massachusetts, 282 U.S. 660, 670 ; Kansas v. Colorado, 185 U.S. 125, 146 -147. Thus, a State with high water-quality standards may well ask that its strict standards be honored and that it not be compelled to lower itself to the more degrading standards of a neighbor. There are no fixed rules that govern; these [406 U.S. 91, 108]   will be equity suits in which the informed judgment of the chancellor will largely govern.

We deny, without prejudice, the motion for leave to file. While this original suit normally might be the appropriate vehicle for resolving this controversy, we exercise our discretion to remit the parties to an appropriate district court 10 whose powers are adequate to resolve the issues.


[ Footnote 1 ] It is equally well settled that a suit between a State and a citizen of another State is not a suit between citizens of different States for the purposes of diversity of citizenship jurisdiction. Postal Telegraph Cable Co. v. Alabama, 155 U.S. 482, 487 .

[ Footnote 2 ] See also H. R. Rep. No. 308, 80th Cong., 1st Sess., A 104 (1947): "The original jurisdiction conferred on the Supreme Court by Article 3, section 2, of the Constitution is not exclusive by virtue of that provision alone. Congress may provide for or deny exclusiveness."

[ Footnote 3 ] The contrary indication in Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 498 n. 3, was based on the preoccupation of that litigation with public nuisance under Ohio law, not the federal common law which we now hold is ample basis for federal jurisdiction under 28 U.S.C. 1331 (a).

[ Footnote 4 ] The powers granted the Secretary of the Interior under the Federal Water Quality Act of 1965, 79 Stat. 903. were assigned by the President to the Administrator of the Environmental Protection Agency pursuant to Reorganization Plan No. 3 of 1970. See 35 Fed. Reg. 15623.

[ Footnote 5 ] While the various federal environmental protection statutes will not necessarily mark the outer bounds of the federal common law, they may provide useful guidelines in fashioning such rules of decision. What we said in another connection in Textile Workers v. Lincoln Mills, 353 U.S. 448, 456 -457, is relevant here: "The question then is, what is the substantive law to be applied in suits under 301 (a)? We conclude that the substantive law to apply in suits under 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws. The labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. Federal interpretation of the federal law will govern, not state law. But state law, if compatible with the purpose of 301, may be resorted to in order to find the rule that will best effectuate the federal policy. Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights." (Citations omitted.) See also Woods & Reed, The Supreme Court and Interstate Environmental Quality: Some Notes on the Wyandotte Case, 12 Ariz. L. Rev. 691, 713-714; Note, 56 Va. L. Rev. 458.

[ Footnote 6 ] Thus, it is not only the character of the parties that requires us to apply federal law. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 ; cf. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 289 ; The Federalist No. 80 (A. Hamilton). As Mr. Justice Harlan indicated for the Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 -427, where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law. See also Clearfield Trust Co. v. United States, 318 U.S. 363 ; D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447 ; C. Wright, The Law of Federal Courts 249 (2d ed. 1970); Woods & Reed, supra, n. 5, at 703-713; Note, 50 Texas L. Rev. 183. Certainly these same demands for applying federal law are present in the pollution of a body of water such as Lake Michigan bounded, as it is, by four States.

[ Footnote 7 ] Those who maintain that state law governs overlook the fact that the Hinderlider case was written by Mr. Justice Brandeis who also wrote for the Court in Erie R. Co. v. Tompkins, 304 U.S. 64 , the two cases being decided the same day.

[ Footnote 8 ] In North Dakota v. Minnesota, 263 U.S. 365, 374 , the Court said: "[W]here one State, by a change in its method of draining water from lands within its border, increases the flow into an interstate stream, so that its natural capacity is greatly exceeded and the water is thrown upon the farms of another State, the latter State has such an interest as quasi-sovereign in the comfort, health and prosperity of its farm owners that resort may be had to this Court for relief. It is the creation of a public nuisance of simple type for which a State may properly ask an injunction."

[ Footnote 9 ] "Federal common law and not the varying common law of the individual States is, we think, entitled and necessary to be recognized as a basis for dealing in uniform standard with the environmental rights of a State against improper impairment by sources outside its domain. The more would this seem to be imperative in the present era of growing concern on the part of a State about its ecological conditions and impairments of them. In the outside sources of such impairment, more conflicting disputes, increasing assertions and proliferating contentions would seem to be inevitable. Until the field has been made the subject of comprehensive legislation or authorized administrative standards, only a federal common law basis can provide an adequate means for dealing with such claims as alleged federal rights. And the logic and practicality of regarding such claims as being entitled to be asserted within the federal-question jurisdiction of 1331 (a) would seem to be self-evident." Texas v. Pankey, 441 F.2d 236, 241-242.

[ Footnote 10 ] The rule of decision being federal, the "action . . . may be brought only in the judicial district where all defendants reside, or in which the claim arose," 28 U.S.C. 1391 (b), thereby giving flexibility to the choice of venue. See also 28 U.S.C. 1407. Whatever may be a municipality's sovereign immunity in actions for damages, see Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U. Ill. L. F. 919, 944-948; Note, 4 Suffolk L. Rev. 832 (1970), actions seeking injunctive relief stand on a different footing. The cases are virtually unanimous in holding that municipalities are subject to injunctions to abate nuisances. See cases collected in 17 E. McQuillin, The Law of Municipal Corporations 49.51 et seq. (3d rev. ed. 1968). See also Wis. Stat. Ann. 59.96 (6) (b) (1957) as respects the suability of metropolitan sewerage commissions. While the kind of equitable relief to be accorded lies in the discretion of the chancellor (Harrisonville v. Dickey Clay Mfg. Co., 289 U.S. 334 ), a State that causes a public nuisance is suable in this Court and any of its public entities is suable in a federal district court having jurisdiction: "[I]t is generally held that a municipality, like a private individual, may be enjoined from maintaining a nuisance. Thus in a proper case a municipal corporation will be restrained by injunction from creating a nuisance on private property, as by the discharge of sewage or poisonous gases thereon, or, in some jurisdictions, by the obstruction of drainage of waters, or by discharging sewage or filth into a stream and polluting the water to the damage of lower riparian owners, or by dumping garbage or refuse, or by other acts. Likewise, a municipality may be enjoined from creating or operating a nuisance, whether the municipality is acting in a governmental or proprietary capacity, impairing property rights. And, if a nuisance is established causing irreparable injury for which there is no adequate remedy at law it may be enjoined irrespective of the resulting damage or injury to the municipality." 17 McQuillin, supra, 49.55. [406 U.S. 91, 109]  

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