Note by John William Hite III
The State of Illinois filed a complaint against the City of Milwaukee in the United States Supreme Court (Milwaukee I) alleging that Milwaukee and several other Wisconsin cities had polluted Lake Michigan. Illinois sought abatement of the pollution as a public nuisance. The Supreme Court held that the federal common law of nuisance would govern, but declined original jurisdiction and remanded the case to federal district court. Illinois then brought an action in the United States District Court for the Northern District of Illinois. Illinois argued that the pollution was a public nuisance under federal law, a public nuisance under Illinois common law, and a violation of Illinois statutory environmental law. The district court, exercising jurisdiction over all three claims, found that the defendants substantially polluted Lake Michigan every year and, accordingly, granted Illinois' request for an injunction. On appeal, the Seventh Circuit, in Milwaukee 7th Circuit, ruled that federal common law, rather than state statutory or common law, was controlling. The Seventh Circuit declared that the federal common law doctrine of nuisance had not been preempted by the Federal Water Polution Control Act of 1972 (FWPCA) nor by its 1977 amendments. The Supreme Court granted certiorari (MilwaukeeII) and concluded that Congress has so completely occupied the field of interstate water pollution as to supplant federal common law. The Supreme Court did not rule on whether the FWPCA had also rendered state common law inapplicable. On remand, the Seventh Circuit reversed the district court and held that the FWPCA precluded the application of state statutory and common law. Illinois v. City of Milwaukee, 731 F.2d 403 (7th Cir. 1984), cert. denied, 105 S. Ct. 980 (1985).
About the Author
John William Hite III.
Citation
60 Tul. L. Rev. 407 (1985)