Middlesex County Sewerage Authority v. National Sea Clammers Association

PETITIONER: Middlesex County Sewerage Authority
RESPONDENT: National Sea Clammers Association
LOCATION: Congress

DOCKET NO.: 79-1711
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 453 US 1 (1981)
ARGUED: Feb 24, 1981
DECIDED: Jun 25, 1981

Alan I. Horowitz - on behalf of the federal parties as Petitioners in No. 80-12 and as Respondents in Nos. 79-1711, 79-1754 & 79-1760
Milton B. Conford - on behalf of the non-federal Petitioners in Nos. 79-1711, 79-1754 & 79-1760
Robert P. Corbin - on behalf of the Respondents other than federal
These Acts - for this purpose both on government officials and private citizens

Facts of the case


Media for Middlesex County Sewerage Authority v. National Sea Clammers Association

Audio Transcription for Oral Argument - February 24, 1981 in Middlesex County Sewerage Authority v. National Sea Clammers Association

Warren E. Burger:

We will hear arguments next in Middlesex County Sewerage Authority v. the National Sea Clammers.

Mr. Conford, I think you may proceed whenever you are ready.

Milton B. Conford:

Mr. Chief Justice and may it please the Court:

This action present important questions as to the consequences of the adoption of recent comprehensive water pollution legislation.

One of these statutes, commonly known as the Clean Water Act, adopted in 1972 is an extensive revision of previous federal water pollution legislation.

The second statute involved, commonly known as the Ocean Dumping Act, adopted in 1972, and also amended in 1977.

This is an action brought by an association of fishermen claiming to have been injured by pollution of the ocean by some six or seven New Jersey sewerage agencies and several New York agencies, all public agencies.

The action of the plaintiff is couched in several counts, the major one, based upon violation of these statutes.

The District Court of New Jersey granted summary judgment to the defendants based upon jurisdictional and substantive grounds.

The Court of Appeals for the 3rd Circuit reversed, and remanded for trial.

Three issues evolved from the differences of opinion between the district court and the court of appeals, which this Court has certified for consideration today.

These are, first, whether there was an implied private remedy flowing from these statutes.

Secondly, whether private parties' plaintiffs have standing to invoke the federal common law nuisance remedy declared by this Court in Illinois v. Milwaukee.

And third, whether if there is such status for a private action it has been preempted by the Clean Water Act and the Ocean Dumping Act in relation to the complaint in this case.

In view of the time constraints that I am under in this matter, I propose with the Court's leave to address the second and third issues, on which I am opposed both by the Solicitor General and the respondents.

The Solicitor General supports us only on the first issue, that concerning whether there was an implied cause of action.

Potter Stewart:

He agrees with you that there is not?

Milton B. Conford:

He agrees with us that there is not.

Byron R. White:

In which event the case is over?

Milton B. Conford:

The case?


If there is no implied cause of action there may be a federal common law nuisance action.

Warren E. Burger:

I see.


But he disagrees with you on that?

Milton B. Conford:

That is right.

I turn to the second issue, which will be found to share a common rationale with the third issue as I develop it.

That is, whether this Court should today declare that there is an across the board remedy available to anybody based on common law nuisance.

An inquiry into that question cannot be approached without a consideration of the context of the comprehensive statutes as they now exist.

In short the issue is, should this Court now declare that there is a broad based, across the board, available to anybody, federal cause of action for nuisance in the context of the simultaneous existence of these comprehensive regulatory water pollution statutes?