Interstate Water Pollution, Federal Common Law, and the Clean Water Act

AuthorRobin Kundis Craig
chapter three
Interstate Water Pollution, Federal Common
Law, and the Clean Water Act
The U.S. Constitution, in addition to allowing federal law to trump state law pursu-
ant to the Supremacy Clause, also makes the United States the f‌inal arbitrator of
relationships among the states. Most such dominance occurs with respect to military
and defense operations and with respect to commerce, a ref‌lection of the Founders’
intent to make the country a single political and commercial unit. Congress, for
example, has the authority “[t]o regulate Commerce . . . among the several States,”1
and this empowerment also restricts the states from discriminating in trade or
from enacting protectionist laws—the effects of the so-called dormant Commerce
Clause.2 More decisively, the Constitution explicitly strips states of several powers
related to cross-border trade and military authority,3 and it guarantees that “[t]he
Citizens of each State shall be entitled to all Privileges and Immunities of Citizens
in the several States”4 and that “[t]he United States shall guarantee to every State
in the Union a Republican Form of Government,”5 restricting states’ abilities to
become too independent or idiosyncratic.
However, the United States is the f‌inal arbitrator of interstate relations in a more
specif‌ic sense, as well. Some of the more prominent constitutional powers of the
federal courts are to hear “[c]ontroversies between two or more States;—between
a State and Citizens of another State;—between Citizens of different States; . . .
and between a State, or Citizens thereof, and foreign States, Citizens or Subjects,6
creating the federal courts as “neutral” forums to resolve interstate disputes. When a
state itself is a party to the litigation, moreover, the U.S. Supreme Court has original
jurisdiction over the case.7 Indeed, the Supreme Court’s original jurisdiction for
1. U.S. Const. art. I, §8, cl. 3.
2. See, e.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 959-61, 12 ELR 20246 (1982)
(groundwater); Kassel v. Consolidated Freightways Corp. of Del., 450 U.S. 662, 670-78 (1981) (truck
requirements); Hughes v. Oklahoma, 441 U.S. 332, 338-39 (1979) (game regulations) (all striking down
state laws that burdened interstate commerce).
3. U.S. Const. art. I, §10.
4. Id. art. IV, §2, cl. 1.
5. Id. §4.
6. Id. art. III, §2.
7. Id. §3.
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suits between states will likely be an important component of interstate dispute
resolution into the 21st century.8
Federal authority over interstate relations has been prominent in water quality
disputes for some time. As was discussed in Chapter 1, the Federal Water Pollution
Control Act (FWPCA) focused U.S. limited enforcement authority on interstate
water pollution. In addition, the Supreme Court developed a federal common law
of nuisance for interstate water pollution cases, a jurisprudence that the Court felt
compelled to reexamine after Congress’ creation of the modern Clean Water Act
I. Interstate Water Pollution in the Court Before 1972
A. Missouri v. Illinois9
Although the Court entertained several lawsuits between states in the 19th century,
those contests were “cases involving boundaries and jurisdiction over lands and
their inhabitants, and . . . cases directly affecting the property rights and interests
of a state.”10 Not until the dawn of the 20th century did the Court decide its f‌irst
interstate pollution case, when Missouri sued Illinois and the Sanitary District of
Chicago to enjoin Chicago’s discharge of sewage into the Mississippi River.
In Missouri v. Illinois I, Illinois demurred to the complaint, forcing the Court
to determine whether it could constitutionally hear the case. Looking f‌irst at the
language of Article III, the Court conceded that its authority appeared to extend
to any complaint that “the acts of one state in seeking to promote the health and
prosperity of its inhabitants by a system of public works . . . endanger[ ] the health
and prosperity of the inhabitants of another and adjacent state . . . .”11 Not content
with so facile a resolution, however, the Court traced the history of its creation from
the Articles of Confederation forward. The Articles of Confederation considered it
necessary to create a tribunal “to hear and determine matters in question between
two or more states,” and
the scope or f‌ield within which it was expected such matters in question or controversy
should or might arise for the determination of such court extended to “all disputes and
differences now subsisting or that hereafter may arise between two or more states
concerning boundary, jurisdiction, or any other cause whatever.12
60 the cle an water act a nd t he cons tit ution
8. See, e.g., New Jersey v. Delaware, __U.S.__ , 128 S. Ct. 1410 (2008) (resolving an interstate
dispute over regulatory authority on riparian lands along the Delaware River).
9. 180 U.S. 208 (1901).
10. Id. at 240-41.
11. Id. at 219.
12. Id. at 221-22 (quoting Articles of Confederation art. 9 (1778)).
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