Committee for Consideration of Jones Falls Sewage System v. Train

BUTZNER, Circuit Judge

(dissenting):

I respectfully dissent on the following grounds:

¶ Jones Falls is a part of the navigable waters of the United States.

¶ Federal law, including federal common law, is applicable to nuisances that pollute the navigable waters of the United States.

¶ Baltimore’s alleged pollution of Jones Falls in violation of federal common law presents a federal question.

¶ A citizen whose complaint satisfies the jurisdictional requirements for litigating a federal question can invoke federal common law to abate contamination of a navigable water of the United States, even though the pollution is also an intrastate nuisance.

¶ The function of federal common law for the abatement of water pollution is to fill statutory interstices and to provide uniform rules regarding the waters of the United States. Therefore, the question whether the Federal Water Pollution Control Act Amendments of 1972 preempt federal common law with respect to the issues in this case should await the development of an evidentiary record and trial on the merits.

Accordingly, I would remand this case for further proceedings. My reasons for reaching these conclusions follow.

I

The background of the controversy now before us is relatively simple. The Committee for the Consideration of the Jones Falls Sewage System complained that Baltimore, Maryland, was discharging sewage1 into Jones Falls without a permit. While this case was pending, the city obtained a permit from the Maryland Department of Natural Resources to discharge effluents from sewage treatment plants into a number of waterways, including Jones Falls. The permit was authorized by the Environmental Protection Agency pursuant to the 1972 Amendments to the Water Pollution Control Act, and the committee acknowledges that its issuance moots one aspect of its suit.

The committee contends that even though the city has a permit, federal common law prohibits dumping untreated sewage from new sources into Jones Falls. It alleges that in 1973 the flow of sewage exceeded the plant’s capacity by three million gallons a day and that substantial amounts of raw sewage still enter Jones Falls entirely untreated. As a result, the committee asserts, the coliform and fecal bacteria levels in the stream exceed acceptable amounts, creating noxious gases, hazards to health, and impairment of the use *1011and enjoyment of the residential communities through which Jones Falls flows. The committee complains that the failure of the city to restrict additional sewage hookups will aggravate the problem. Pointing to the absence of any reference to a moratorium on new hookups in the Act and the permit, the committee argues that it is imperative to enjoin these additional sources of pollution by applying federal common law. If this is not done, the committee claims, Jones Falls will become dirtier in the coming decade, and the national goal of eliminating the discharge of pollutants by 1985 will be thwarted.2

The city and the intervenors, who are successful applicants for new hookups, insist that new sources of sewage can legally be added to the overloaded system. They contend (a) that private citizens cannot invoke federal common law to abate intrastate pollution of navigable waters, and (b) that if they can, the committee’s complaint does not state a cause of action because the 1972 Amendments preempt the federal common law. The district court ruled on the first issue, holding that only “governmental entities” can invoke the jurisdiction of federal courts under federal common law to abate a nuisance that pollutes navigable waters. Consequently, it found no occasion to consider the second issue. Committee for Consideration of Jones Falls Sewage System v. Train, 375 F.Supp. 1148, 1153-54 (D.Md.1974).

II

In support of its right to invoke federal common law to curtail the pollution of Jones Falls, the committee relies on § 505 of the 1972 Amendments to the Act [33 U.S.C. § 1365]. This section, after conferring a right of action on adversely affected citizens to enforce the Act, provides in subsection (e):

“Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).”

The term “common law” is not expressly limited by this provision to the common law of the states. On its face the clause is broad enough to embrace federal common law. This leads to the principal issue of the appeal: whether the 1972 Amendments recognize and preserve the right of a citizen to invoke federal common law to abate pollution of the navigable waters of the United States.

There can be no doubt that Jones Falls is a part of the navigable waters of the United States. The Act defines “navigable waters” as “waters of the United States, including the territorial seas.” 3 The legislative history discloses that Congress intended the term “navigable waters” to “be given the broadest possible constitutional interpretation . . . .”4 Referring to this history, the Environmental Protection Agency has interpreted the statutory definition to include “tributaries of navigable waters of the United States.”5 The Agency’s construction is consistent with the Rivers and Harbors Act of 1899, which prohibits throwing refuse “into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water.”6 In United States v. Valley Camp Coal Co., 480 F.2d 616 (4th Cir. 1973), we read the Act of 1899 literally, applying it to “an unnamed tributary of the Kanawha River.”

After flowing a short distance, Jones Falls joins the Patapsco River, which empties into Chesapeake Bay, one of the nation’s valuable maritime resources. It is *1012reasonable to assume that Congress realized that the great volume of water in the Bay could not be cycled through treatment plants to remove contaminants. It is also reasonable to assume that Congress could not expect persons affected by pollution in the Bay to detect the source of the pollutants in the scores of tributaries that drain its vast watershed. Protection of the Bay, Congress concluded, can best be achieved by preventing the discharge of pollutants into its tributaries, including Jones Falls.7 Section 505 of the Act implements this policy by allowing any adversely affected citizen to sue to abate pollution at the source. Therefore, the national interest in making the navigable waters of the United States wholesome and clean involves Jones Falls, even though Baltimore’s sewage also has an intrastate effect on people who live near the stream.

Vindication of the federal interest in eliminating pollution of Jones Falls is not dependent on state law. Although Congress recognized, preserved, and protected the primacy of states’ responsibilities and rights to cleanse the waters of the United States,8 it did not foreclose concurrent action in federal courts to enforce federal standards. Indeed, this point is beyond debate in the lower federal courts. Construing a clause of the Water Pollution Control Act Amendments of 1956 [33 U.S.C. § 1151(b)], similar to the corresponding clause in the 1972 Amendments, the Supreme Court said:

“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.” Illinois v. Milwaukee, 406 U.S. 91, 102, 92 S.Ct. 1385, 1392, 31 L.Ed.2d 712 (1972).

The Court’s declaration has not been eroded by the passage of time. On the contrary, the 1972 Amendments make the federal role in eliminating water pollution more pervasive than the statute which the Court was construing in Illinois.9

Moreover, § 505 of the Act [33 U.S.C. § 1365] authorizes citizens’ suits to enforce the Act’s effluent standards in the districts where pollutants are discharged.10 The fed*1013eral nature of this cause of action is emphasized by Congress’ specific direction that the district court shall have jurisdiction to enforce the Act without regard to the citizenship of the parties or the amount in controversy. This grant of the right to enforce the Act is coupled with the express preservation of a citizen’s right to bring suit under common law for relief the Act does not afford. The provisions of § 505 must be read as a whole. Together they demonstrate, I believe, that Congress recognized that the pollution of navigable waters and their tributaries raises a federal question for which all federal law, including common law, is applicable.11 The 1972 Amendments are consistent with Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), to which I will now turn for an examination of the attributes of the federal common law applicable to the nation’s waters.

Ill

In Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), the Court, drawing on the federal government’s long history of water control, held that federal common law could be applied to abate a public nuisance caused by pollution of interstate or navigable waters. The Court also held that a state is a proper party plaintiff, but its discussion concerning the nature of the federal common law applicable to navigable waters is not expressly limited to actions brought by states. The Court explained that this field of federal common law is fashioned from the policies of national laws dealing with the country’s natural resources and from state laws compatible with the congressional purpose. Its function is to fill statutory interstices and to provide uniform rules regarding the waters of the United States.12

The Court’s opinion refutes Baltimore’s argument that federal common law applies only to interstate waters. The Court expressly stated that federal common law applies also to navigable waters. But see Reserve Mining Co. v. Environmental Protection Agency, 514 F.2d 492, 520-22 (8th Cir. 1975). Moreover, it held that application of federal common law to abate pollution in navigable waters “is not inconsistent with the Water Pollution Control Act.” 406 U.S. at 104, 92 S.Ct. at 1393. Since federal common law draws its substance from federal statutes, the expansion of the 1972 Amendments’ coverage to tributaries of navigable waters makes these tributaries also subject to federal common law. Congress, as we have noted, confirmed the Court’s understanding of the complementary role of the common law by providing that the authorization for citizens’ suits to enforce the Act would not restrict any person’s right under the common law to seek relief not afforded by the Act.13 See United States ex rel. Scott v. United States *1014Steel Corp., 356 F.Supp. 556, 559 (N.D.Ill. 1973).

Illinois also refutes Baltimore’s argument that only a state can invoke federal common law. The Court recognized the right of a state to do so, but it cautioned against confusing parties with subject matter in determining whether to apply federal common law:

“Thus, it is not only the character of the parties that requires us to apply federal law .... [Wjhere 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.” 406 U.S. at 105, n. 6, 92 S.Ct. at 1394.

Similarly, Illinois exposes the fallacy in Baltimore’s thesis that the pollution of Jones Falls is only a local matter. On this subject the Court was explicit, saying:

“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.” 406 U.S. at 99, 92 S.Ct. at 1390.

Section 1331(a) confers jurisdiction on district courts because of the federal nature of the dispute.14 Cf. Georgia v. Tennessee Copper Co., 206 U.S. 230, 239, 27 S.Ct. 618, 51 L.Ed.2d 1038 (1907) (Harlan, J., concurring); Ames v. Kansas, 111 U.S. 449, 470-72, 45 S.Ct. 437, 28 L.Ed. 482 (1884). No authority justifies placing a gloss on this basic jurisdictional statute to limit its application to controversies involving a state.

Baltimore suggest that the committee has no cause of action based on federal common law because the 1972 Amendments have preempted the field. At best this suggestion is premature. Resolution of this issue should await trial on the merits. Illinois teaches that a litigant is not to be denied relief because the remedy he seeks “is not within the precise scope of remedies prescribed by Congress.” 406 U.S. at 103, 92 S.Ct. at 1392. One function of the federal common law is to fill statutory interstices.15 The Act itself recognizes this well established principle by allowing citizens to bring suits at common law for relief not contemplated by the Act.16 The suggestion that a citizen must bring a suit in state court to fill the interstices of the federal Act is contrary to both § 505(e) and the principles expressed in Illinois. Furthermore, it is impractical to shuffle between federal and state courts to determine the scope of the Act and then to fill its interstices with state law. This would provoke diversity, rather than achieve uniformity, in the law governing the abatement of nuisances in the navigable waters of the United States.

In sum, I find neither a substantive nor a jurisdictional barrier to a citizen’s reliance on federal common law to abate the pollution of navigable waters. Whether a citizen can maintain his suit should depend, I believe, on his standing to have a district court decide the merits of his claim.

IV

To establish standing, a litigant must first satisfy Article III of the Constitution by showing the existence of a case or controversy against his adversary. Further, to demonstrate that he is not barred by prudential limitations on the exercise of the *1015court’s jurisdiction, he must point either to an express statutory grant of a right of action or to a constitutional or statutory provision that can be construed to afford persons in his situation judicial relief. See Warth v. Seldin, 422 U.S. 490, 498-501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). An individual pressing an environmental claim must show more than a mere interest in the problem; he must prove that he himself is affected by immediate or threatened injury. An association instituting suit must allege that it, or one of its members, suffers the same harm that would entitle an individual to standing. United States v. SCRAP, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

The appellants demonstrate a sufficient “personal stake in the outcome of the controversy” to satisfy Article III. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). The complaint alleges that the individual appellants and the members of the associations comprising the committee live in the neighborhood through which Jones Falls flows, and it sets forth the particulars of the injuries which the discharge of sewage into the stream causes them. See Sierra Club v. Morton, supra; Montgomery Environmental Coalition v. Fri, 366 F.Supp. 261, 264 (D.D.C.1973).

Two provisions of the 1972 Amendments to the Act establish that aggrieved citizens and their associations should not be denied standing by prudential limitations. As I have previously noted, the Amendments expressly grant any citizen “having an interest which is or may be adversely affected” a right of action to enforce the Act’s remedies, and they preserve a litigant’s right to relief under common law.17 These sections disclose congressional recognition of the important role citizens can play in abating pollution of the waters of the United States.18 Since federal common law must conform to the national policies declared by Congress, I conclude that provisions of the 1972 Amendments authorizing citizen suits sufficiently demonstrate that a citizen’s invocation of the common law is not barred by prudential limitations on the exercise of the court’s jurisdiction.19

I also conclude that the committee’s cause of action is not barred by the axiom that a private person cannot enjoin a public nuisance. An exception to this doctrine permits a private action when the plaintiff suffers particular damages which are different from those inflicted on other members of the public. See W. Prosser, Law of Torts 586-91 (4th ed. 1971). The public harm in this case is the degrading of a natural resource. The private harm suffered by members of the committee who live in the vicinity of Jones Falls and frequent its banks is the personal injury they sustain from noxious odors, aesthetic offensiveness, and the threat to health caused by the discharge of raw sewage into the stream. Viewed in this light, standing provides a common denominator for suits brought under both the Act and federal common law. Thus, the lack of a personal stake, which bars a citizen’s standing under both Article III and the 1972 Amendments *1016of the Act, also serves to limit his right under federal common law to abate a public nuisance. But when a citizen demonstrates an injury to his person or property sufficient to satisfy constitutional and prudential restrictions on standing, I believe that he is entitled to invoke federal common law for the abatement of a public nuisance in the waters of the United States. See Restatement (Second) of. Torts § 821C (Tent. Draft No. 17, 1971).

Finally, I believe that the court should not address important issues bearing on the outcome of this litigation at this stage of the proceedings. Resolution of preliminary questions relating to the jurisdictional amount and to the actual — as distinguished from the alleged — standing of the complainants must await the presentation of evidence. Moreover, when considering the merits, the district court must decide the extent to which the 1972 Amendments and new federal regulations “pre-empt the field of federal common law of nuisance.” See Illinois v. Milwaukee, 406 U.S. 91, 107, 92 S.Ct. 1385, 1395, 31 L.Ed.2d 712 (1972). But this should be done only after the evidence has been developed.. Federal statutes can then provide useful guidelines to the court as it appraises the equities of the case in the light of all the facts. See Illinois, 406 U.S. at 103, n. 5, and 107, 92 S.Ct. 1385.

I would, therefore, remand this case to the district court with directions that it allow the committee to amend its complaint, consider the question of jurisdictional amount, and decide whether the facts support the committee’s claim to standing. If these preliminary issues are resolved in favor of the appellants, the district court should hear and decide the case on its merits.

ALBERT V. BRYAN, Senior Circuit Judge, and CRAVEN, Circuit Judge, join in this dissent.

. Sewage is defined by statute as a pollutant. 33 U.S.C. § 1362(6).

. 33 U.S.C. § 1251(a)(1).

. 33 U.S.C. § 1362(7).

. S.Conf.Rep.No.92-1236, 92d Cong., 2d Sess. 144, 2 U.S.Code Cong, and Admin.News, pp. 3776, 3822 (1972).

. 40 C.F.R. § 125.1(p)(2).

. 33 U.S.C. § 407.

. Previous federal water pollution control legislation established water quality standards to be achieved in the affected bodies of water. Recognizing the difficulty of attacking pollution already in the water, Congress shifted its emphasis in the 1972 Amendments to eliminating discharge of pollutants. See Environmental Protection Agency v. California ex rel. Water Resources Control Bd., - U.S. -, 96 S.Ct. 2022, 48 L.Ed.2d 528, 44 U.S.L.W. 4781 (U.S. June 7, 1976) (dictum); II Environmental Policy Division of the Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972, 1303 (Senate Comm, on Pub. Works Print 1973); McThenia, An Examination of the Federal Water Pollution Controi Act Amendments of 1972, 30 Wash. & Lee L.Rev. 195, 198-206 (1973).

. 33 U.S.C. § 1251(b) provides in part:

“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 . . .”

. See, for example, the following provisions in the 1972 Amendments: 33 U.S.C. § 1251(a) (establishing national goals for elimination of pollution), § 1316(c) (allowing state enforcement if its standards comply with federal regulation), § 1319(a)(2) (allowing the Administrator to enforce pollution limitations if a state fails to), and § 1370 (providing that no state standard may be less stringent than the federal regulations).

. 33 U.S.C. § 1365 provides in part:

“(a) (A)ny citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . .
******
“The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or *1013such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.
“(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).
* * * * * *
“(g) For the purposes of this section the term ‘citizen’ means a person or persons having an interest which is or may be adversely affected.”

. A distinction, however, must be made between a suit brought under the Act and a suit brought solely under federal common law. Under the latter, proof of the jurisdictional amount is required by 28 U.S.C. § 1331(a). See Illinois v. Milwaukee, 406 U.S. 91, 98, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972). Whether a court that has acquired jurisdiction under § 505(a) of the Act [33 U.S.C. § 1365(d)] can also hear a common law claim without proof of the jurisdictional amount required by 28 U.S.C. § 1331(a) has not been briefed or argued on this appeal. I would request the parties to brief this question for the district court on remand.

. Cf. Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957); Friendly, In Praise of Erie — And of the New Federal Common Law, 39 N.Y.U.L.Rev. 383 (1964).

. 33 U.S.C. § 1365(e). See note 10 supra.

. Federal common law falls within the definition of “laws of the United States” in 28 U.S.C. § 1331(a). See Stream Pollution Control Bd. v. United States Steel Corp., 512 F.2d 1036, 1039 (7th Cir. 1975); Ivy Broadcasting Co. v. American Telephone & Telegraph Co., 391 F.2d 486, 492 (2d Cir. 1968).

. In developing the federal common law of water pollution, the district courts may draw on the policies expressed in the 1972 Amendments, other federal legislation such as the Rivers and Harbors Act of 1899, principles of the federal common law of nuisance, and applicable state laws. See generally H. Hart & H. Wechsler, The Federal Courts and the Federal System 762-70, 800-06 (2d ed. 1973).

. Section 505(e) [33 U.S.C. § 1365(e)]; see Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 699-703 (1975).

. See note 10 supra.

. See Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 510 F.2d 692, 699-703 (1975).

. The legislative history of 33 U.S.C. § 1365 indicates that the definition of a citizen eligible to sue under the Act in § 1365(g) was intended to grant standing to the widest extent possible under Article III of the Constitution. In the House debate on the conference version of the 1972 Amendments, a proponent of the legislation described § 1365(g) as follows:

“This language is based on section 10 of the Administrative Procedure Act, 5 U.S.C. § 702, and the interpretation given to that section by the Supreme Court in Sierra Club v. Morton . .
“The conferees followed the Court’s opinion. A citizen suit may be brought under the conference agreement by those persons or groups . . . whose environmental . . interest is or may be injured by a violation of the act . I Environmental Policy Division of the Congressional Research Service, A Legislative History of the Water Pollution Control Act Amendments of 1972, 249-50 (Senate Comm, on Pub. Works Print 1973).