479 U. S. 481
January 21, 1987
Lake Champlain forms part of the border between New York and Vermont. A New York paper mill pumped waste into the New York side of the lake, but some of the waste flowed into Vermont waters. Good environmentalist nuts that they were, some Vermont citizens brought a nuisance suit in the Vermont Federal District Court. The paper company argued that a nuisance suit which used Vermont law was preempted by the Clean Water Act (CWA).
Powell wrote for a 5-4 majority, which held that the CWA preempted state nuisance suits against pollution, unless the pollution actually originated from the state whose law is used. With some brief textual analysis, the majority dismissed two sections of the CWA which appeared to preserve any state suit addressing pollution. Then Powell concluded that the CWA would be frustrated by suits of non-source states. The elaborate permit system the law set up could be thwarted and nullified if non-source states could force pollutants to comply with higher state law standards. The Court also ruled unanimously that nuisance law in the source states of the pollution could be used, and that such a suit could be filed in the District Court of a non-source state.
Brennan wrote a dissent, which was joined by Marshall and Blackmun. He argued that the only question before the Court was which District Court the Ouellette case could be filed in, and not which type of law must be used in the case. Nonetheless, he concluded that the CWA did not preempt nuisance suits by a non-source state. He showed that the majority had not satisfactorily explained the two aforementioned sections of the law’s text, and that both legislative history and EPA practice seemed to suggest that non-source state suits were permitted. Stevens wrote a dissent joined by Blackmun. Like Brennan, he felt that the Court shouldn’t have answered the question of which type of suit could be filed. Unlike Brennan, he expressed no view on that issue.
As I have said before, I am pretty liberal on justiciability issues, so the arguments of Brennan and Stevens that the majority’s opinion was advisory don’t faze me. But I think Brennan actually does get the better of the preemption debate, though I would like to have more information before I made up my mind on the issue. And as a policy matter rather than a legal matter, I do strongly prefer the Powell approach.