ELR Citation: ELR 20377
No(s). 78-163 (D. Vt. Feb 5, 1985)

The court holds that the Federal Water Pollution Control Act (FWPCA) authorizes actions to redress injury caused by pollution of interstate waters under the common law of the state in which the injury occurred. The court first reviews the Illinois v. City of Milwaukee litigation, and concludes that, since the Supreme Court has held that federal common law governed this sort of dispute until the 1972 FWPCA amendments preempted it, the issue here is not preemption of state common law but authorization of state common law suits by the FWPCA. The court holds, contrary to the conclusion of the Seventh Circuit in Illinois, that the saving clause in FWPCA §505 and the state authority section of the Act, §510, combine to authorize the application of Vermont common law to remedy an injury caused to Vermonters by discharges of pollutants from defendant's paper mill in New York. The court bases its conclusion on several considerations. First, the 1972 amendments were formulated prior to the Supreme Court's holding that federal common law governed interstate pollution disputes. Congress most likely believed, given the state of the law when it acted, that the law of the state in which the injury was sustained would govern actions for harm caused in one state by pollution from another state. Therefore, Congress almost certainly intended to preserve those state common law actions with the saving clause and the state authority section. Second, federal courts are to follow state choice of law rules; the Seventh Circuit decision would inappropriately impose its own choice of law rule. Finally, the court sees no conflict between the objectives of the Act and use of state common law remedies nor any impending clash between sovereign states. The Act had as its goal the elimination of water pollution. Moreover, this suit does not seek imposition of effluent limitation different from those required under the Act, but only compensation from citizens of one state for harm caused them by citizens of another.

The court also holds that a consent decree entered into by the state of Vermont and defendants does not bar this action. The state agreed only that it would not seek to impose stricter standards on defendant; it expressly preserved the right of its citizens to sue. Finally, the court holds that the damage to lakeside property alleged by plaintiffs is sufficiently different from the harm suffered by the population in general to state a claim for public nuisance.

Counsel for Plaintiffs
Peter F. Langrock, Susan F. Eaton
Langrock, Sperry, Parker & Wool
15 South Pleasant St., P.O. Drawer 351, Middlebury VT 05753
(802) 388-6356

Counsel for Defendant
Austin Hart
Dinse, Erdmann & Clapp
209 Battery St., Burlington VT 05402
(802) 864-5751

James W.B. Benkard, Jamie Stern
Davis, Polk & Wardwell
One Chase Manhattan Plaza, New York NY 10005
(212) 530-4000