City of Milwaukee v. Illinois

PETITIONER:City of Milwaukee
LOCATION:White House

DOCKET NO.: 79-408
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 451 US 304 (1981)
ARGUED: Dec 02, 1980
DECIDED: Apr 28, 1981

Andrew J. Levander – on behalf of the United States as amicus curiae
Elwin J. Zarwell – on behalf of the Petitioners
Joseph V. Karaganis – on behalf of the Respondents

Facts of the case


Media for City of Milwaukee v. Illinois

Audio Transcription for Oral Argument – December 02, 1980 in City of Milwaukee v. Illinois

Audio Transcription for Opinion Announcement – April 28, 1981 in City of Milwaukee v. Illinois

Warren E. Burger:

The judgments and opinion of the Court in 79-408, the City of Milwaukee against the States of Illinois and Michigan will be announced by Justice Rehnquist.

William H. Rehnquist:

Nine years ago, Illinois brought in original action in this Court against the City of Milwaukee.

We have claimed that its citizens were being harmed by discharge of inadequately treated sewage and the overflow of untreated sewage in the Lake Michigan from the Milwaukee Sewer System.

We then decline to exercise our original jurisdiction because Illinois had available — a federal common law action in a lower federal court.

Illinois then filed suit in the United States District Court in Chicago and was granted relief on the basis of that federal common law.

The relief was partially affirmed by the Court of Appeals for the Seventh Circuit.

Milwaukee was required to take steps to control of sewers overflows over and above the steps required in permits which should been issued under the regulatory regime of the Federal Water Pollution Control Act.

We then granted the petition of the City of Milwaukee to review the decision of the Court of Appeals.

When this case was first before us nine years ago and we recognize the existence of a federal common law action, we also recognize that the time might come when federal statutes would displace this federal common law remedy.

Today, we hope that this time has come.

Five months after our 1972 decision, Congress substantially revised the Federal Water Pollution Control laws.

Under the new system, a permit is required for every so-called point source discharge.

The permit subjects the discharges to the supervision of an expert administrative agency, either the Federal Environmental Protection Agency or a state agency which has been approved by the federal agency.

The District Court and the Court of Appeals were therefore wrong when they granted Illinois relief premise on federal common law after Congress have enacted the detailed new system.

Federal common law is invoked by federal courts only as a necessary expedient to resolve questions demanding federal answers which have not been addressed by Congress.

When Congress has spoken to an issue, the need for this sort of law making by the federal courts disappear.

Here, Milwaukee was operating a sewer system under permits issued by the State Department of Natural Resources which had been approved by the federal EPA.

Its discharges were being regulated under the regime established by Congress in the Federal Water Pollution Control Act.

A system whereby each federal District Court establishes its own regulatory regime under the guides of federal common law is wholly inconsistent with the legislation enacted in 1972.

Under the present system, substantive decisions about how water pollution has to be controlled are the responsibility of Congress and the administrative agencies to which Congress is entrusted this responsibility.

The judgment of the Court of Appeals for the Seventh Circuit is accordingly reversed.

Justice Blackmun with whom Justice Marshall and Justice Stevens joined has filed a dissenting opinion.

Warren E. Burger:

Thank you Mr. Justice Rehnquist.