Ohio v. Wyandotte Chemicals Corp./Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The complaint in this case presents basically a classic type of case congenial to our original jurisdiction. It is to abate a public nuisance. Such was the claim of Georgia against a Tennessee company which was discharging noxious gas across the border into Georgia. Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038. The Court said:

'It is a fair and reasonable demand on the part of a     sovereign that the air over its territory should not be      polluted on a great scale by sulphurous acid gas, that the      forests on its mountains, be they better or worse, and      whatever domestic destruction they have suffered, should not      be further destroyed or threatened by the act of persons      beyond its control, that the crops and orchards on its hills      should not be endangered from the same source.' Id., at 238,      27 S.Ct., at 619.

Dumping of sewage in an interstate stream, Missouri v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572, or towing garbage to sea only to have the tides carry it to a State's beaches, New Jersey v. New York City, 283 U.S. 473, 51 S.Ct. 519, 75 L.Ed. 1176, have presented analogous situations which the Court has entertained in suits invoking our original jurisdiction. The pollution of Lake Erie or its tributaries by the discharge of mercury or compounds thereof, if proved, certainly creates a public nuisance of a seriousness and magnitude which a State by our historic standards may prosecute or pursue as parens patriae.

The suit is not precluded by the Boundary Waters Treaty of 1909, 36 Stat. 2448. Article IV provides that the 'boundary waters * *  * shall not be polluted on either side to the injury of health or property on the other.' But there is no machinery for direct enforcement of Art. IV.

Article VIII empowers the International Joint Commission to 'pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III and IV * *  * the approval of this Commission is required.' Those Articles specifically describe the type of projects for which approval is required. For example, Art. IV states that the '(p)arties * *  * will not permit the construction or maintenance *  *  * of any remedial or protective works or any dams or other obstructions *  *  * the effect of which is to raise the natural level of waters on the other side of the boundary unless *  *  * approved by the *  *  * Commission.' Significantly, the proscription of pollution, which immediately follows this provision in Art. IV, does not mention approval or action by the International Joint Commission.

Article X does vest the Commission with power to render binding decisions on matters referred by consent of both parties. But Art. X states that any joint reference 'on the part of the United States * *  * will be by and with the advice and consent of the Senate, and on the part of His Majesty's Government with the consent of the Governor General in Council.'

In other words, so far as pollution is concerned, the Treaty contains no provision for binding arbitration. Thus, it does not evince a purpose on the part of the national governments of the United States and Canada to exclude their States and Provinces from seeking other remedies for water pollution. Indeed, Congress in later addressing itself to water pollution in the Federal Water Pollution Control Act, 33 U.S.C. § 1151, (1970 ed.), said in § 1(c):

'Nothing in this chapter shall be construed as impairing or     in any manner affecting any right or jurisdiction of the      States with respect to the waters (including boundary waters)      of such States.' (Emphasis added.)

This litigation, as it unfolds, will, of course, implicate much federal law. The case will deal with an important portion of the federal domain-the navigable streams and the navigable inland waters which are under the sovereignty of the Federal Government. It has been clear since Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565, decided in 1845, that navigable waters were subject to federal control. That paramount federal dominion extends into the oceans beyond low tide. United States v. California, 332 U.S. 19, 67 S.Ct. 1658, 91 L.Ed. 1889.

Congress has enacted numerous laws reaching that domain. One of the most pervasive is the Rivers and Harbors Act of 1899, 30 Stat. 1121, as amended, 33 U.S.C. § 403, which was before us in United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903. In that case we read § 13 of the 1899 Act, 33 U.S.C. § 407, which forbids discharge of 'any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state' as including particles in suspension. Id., at 490, 80 S.Ct. at 889.

In the 1930's fish and wildlife legislation was enacted granting the Secretary of the Interior various heads of jurisdiction over the effects on fish and wildlife of 'domestic sewage, mine, petroleum, and industrial wastes, erosion silt, and other polluting substances.' See, e.g., 16 U.S.C. § 665. Among other things, the Secretary of the Interior through the Fish and Wildlife Service gave advice to the Corps of Engineers as respects the effects which proposed dredging or filling of estuaries would have on fish or wildlife.

Since that time other changes have been made in the design of the federal system of water control. The Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1151 (1970 ed.), gives broad powers to the Secretary to take action respecting water pollution on complaints of States, and other procedures to secure federal abatement of the pollution. Ibid. The National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4331 (1964 ed., Supp. V), gives elaborate ecological directions to federal agencies and supplies procedures for their enforcement.

On December 23, 1970, the President issued an Executive Order which correlates the duties of the Corps of Engineers and the Administrator of the new Environmental Protection Agency under the foregoing statutes. Under that Executive Order the Corps in order 'to regulate the discharge of pollutants and other refuse matter into the navigable waters of the United States or their tributaries' is directed after consultation with the Administrator to amend its regulations concerning issuance of permits. While the Corps is responsible for granting or denying permits, § 2(a)(2), it must accept the findings of the Administrator respecting 'water quality standards,' § 2(a)(2)(A). On December 31, 1970, the Corps gave notice of its new proposed rules to govern discharges or deposits into navigable waters.

Yet the federal scheme is not preemptive of state action. Section 1(b) of the Water Pollution Control Act declares that the policy of Congress is 'to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water polution.' 33 U.S.C. § 1151(b) (1970 ed.). Section 10 provides that except where the Attorney General has actually obtained a court order of pollution abatement on behalf of the United States, 'State and interstate action to abate pollution of * *  * navigable waters *  *  * shall not *  *  * be displaced by Federal enforcement action.' § 10(b) 33 U.S.C. § 1160(b) (1971 ed.).

The new Environmental Quality Improvement Act of 1970, 84 Stat. 114, 42 U.S.C. § 4371 (1970 ed.), while stating the general policy of Congress in protecting the environment, also states: 'The primary responsibility for implementing this policy rests with State and local governments.' 42 U.S.C. § 4371(b)(2) (1970 ed.).

There is much complaint that in spite of the arsenal of federal power little is being done. That, of course, is not our problem. But it is our concern that state action is not pre-empted by federal law. Under existing federal law, the States do indeed have primary responsibility for setting water quality standards; the federal agency only sets water quality standards for a State if the State defaults. 33 U.S.C. § 1160(c) (1970 ed.).

There is not a word in federal law that bars state action. If, however, defendants had a permit from the Corps to discharge mercury into federal waters, the question would be vastly different. But they do not, and so far as appears they are not under any federal process and are not parties to any federal proceedings. In light of the history of water pollution control efforts in this country it cannot be denied that a vast residual authority rests in the States. And there is no better established remedy in state law than authority to abate a nuisance.

Much is made of the burdens and perplexities of these original actions. Some are complex, notably those involving water rights.

The drainage of Lake Michigan with the attendant lowering of water levels, affecting Canadian as well as United States interests, came to us in an original suit in which the Hon. Charles E. Hughes was Special Master. This Court entered a decree, Wisconsin v. Illinois, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426, and has since that time entered supplementary decrees.

The apportionment of the waters of the Colorado between Arizona and California was a massive undertaking entailing a searching analysis by the Special Master, the Hon. Simon H. Rifkind. Our decision was based on the record made by him and on exceptions to his Report. Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542.

The apportionment of the waters of the North Platte River among Colorado, Wyoming, and Nebraska came to us in an original action in which we named as Special Master, Hon. Michael J. Doherty. We entered a complicated decree, which dissenters viewed with alarm, Nebraska v. Wyoming, 325 U.S. 589, 65 S.Ct. 1332, 89 L.Ed. 1815, but which has not demanded even an hour of the Court's time during the 26 years since it was entered.

If in these original actions we sat with a jury, as the Court once did, there would be powerful arguments for abstention in many cases. But the practice has been to appoint a Special Master which we certainly would do in this case. We could also appoint-or authorize the Special Master to retain-a panel of scientific advisers. The problems in this case are simple compared with those in the water cases discussed above. It is now known that metallic mercury deposited in water is often transformed into a dangerous chemical. This lawsuit would determine primarily the extent, if any, to which the defendants are contributing to that contamination at the present time. It would determine, secondarily, the remedies within reach the importance of mercury in the particular manufacturing processes, the alternative processes available, the need for a remedy against a specified polluter as contrasted to a basin-wide regulation, and the like.

The problem, though clothed in chemical secrecies, can be exposed by the experts. It would indeed be one of the simplest problems yet posed in the category of cases under the head of our original jurisdiction.

The Department of Justice in a detailed brief tells us there are no barriers in federal law to our assumption of jurisdiction. I can think of no case of more transcending public importance than this one.