Court has jurisdiction over the claims based upon the MPRSA and that such action against the federal defendants is not barred by sovereign immunity.
Defendants contend that plaintiff lacks standing to bring an action predicated upon section 13 of the Rivers and Harbors Act of 1899,
33 U.S.C. § 407, because the enforcement of that Act is specifically delegated to the United States, see 33 U.S.C. § 413, and there is no implied private right of action emanating therefrom. See, e. g., Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972) (suit expressly brought on behalf of the general public); Loveladies Property Owners Ass'n v. Raab, 430 F.2d 276, 281 (D.N.J.1975), aff'd mem. 547 F.2d 1162 (3d Cir. 1976), cert. denied, 432 U.S. 906, 97 S. Ct. 2945, 53 L. Ed. 2d 1077 (1977); Parsell v. Shell Oil Co., 421 F.Supp. 1275, 1277-80 (D.Conn.1976); Burgess v. M/V Tamano, 373 F.Supp. 839, 844-45 (D.Maine 1974); Bass Anglers Sportsman's Soc'y v. Scholze Tannery, Inc., 329 F.Supp. 339 (E.D.Tenn.1971); Bass Anglers Sportsman's Soc'y v. U.S. Plywood-Champion Papers, Inc., 324 F.Supp. 302 (S.D.Tex.1971); Bass Angler Sportsman Soc'y v. United States Steel Corp., 324 F.Supp. 412, 416 (U.S.D.C.), aff'd per curiam sub nom. Bass Anglers Sportsman Soc'y v. Koppers Co., 447 F.2d 1304 (5th Cir. 1971).
Conceding that under normal circumstances no private right of action arises pursuant to this Act, plaintiff, nevertheless, attempts to distinguish these cases by stating that none of them involved a situation wherein the defendant was an agency of the federal government. Plaintiff then proceeds to rely on Natural Resources Defense Council, Inc. v. Grant, 355 F.Supp. 280 (E.D.N.C.1973), wherein the court held that a private person had standing to bring an action pursuant to section 13 of the Refuse Act, 33 U.S.C. § 407. The court therein reasoned that since the defendants were represented by the same office that was delegated the authority to enforce the Refuse Act, the plaintiffs should be allowed to enforce it and seek injunctive relief as private attorneys general. Accord, Illinois v. Hoffman, 425 F.Supp. 71, 76 (S.D.Ill.1977). The cases relied upon by the court in reaching that decision, however, did not involve section 13, but, rather, involved other sections of the Refuse Act.
See Parsell v. Shell Oil Co., supra at 1277 & n. 4.
Furthermore, a federal agency was one of the defendants in the following cases which held that there was no private right of action under section 13 of the Refuse Act, 33 U.S.C. § 407. Bass Anglers Sportsman's Soc'y v. Scholze Tannery, Inc., supra at 342; Bass Anglers Sportsman's Soc'y v. U.S. Plywood-Champion Papers, Inc., supra at 306-07; Bass Angler Sportsman Soc'y v. United States Steel Corp., supra at 416.
Finally, in Red Star Towing & Transp. Co. v. Department of Transp., 423 F.2d 104, 105 (3d Cir. 1970), the Third Circuit stated that the Refuse Act "did not . . . create any civil cause of action in favor of private parties injured by any violation of the Act." Accord, Loveladies Property Owners Ass'n v. Raab, supra at 281. In fact, a number of other courts have construed that decision as holding that there is no right of private action under any of the provisions of the Refuse Act. Sierra Club v. Morton, 400 F.Supp. 610, 622 n. 6 (N.D.Cal.1975); River v. Richmond Metropolitan Authority, 359 F.Supp. 611, 639 (E.D.Va.), aff'd per curiam, 481 F.2d 1280 (4th Cir. 1973). Contra, Illinois v. Hoffman, supra at 76.
I therefore hold that section 13 of the Refuse Act, 33 U.S.C. § 407, does not give rise to a private right of action. Accordingly, plaintiff's claim under that provision must be dismissed for failure to state a claim upon which relief can be granted.
Plaintiff also attempts to ground its suit upon the Fifth, Ninth and Fourteenth Amendments. This action is one which seeks to protect the environment. It generally has been held that there is no constitutional right to such protection. See Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971); Gasper v. Louisiana Stadium & Exposition Dist., 418 F.Supp. 716, 720-22 (E.D.La.1976); Upper W. Fork River Watershed Ass'n v. Corps of Engineers, 414 F.Supp. 908, 931-32 (N.D.W.Va.1976), aff'd mem. 556 F.2d 576 (4th Cir. 1977); Pinkney v. Ohio Environmental Protection Agency, 375 F.Supp. 305, 309-10 (N.D.Ohio 1974); Hagedorn v. Union Carbide Corp., 363 F.Supp. 1061, 1064-65 (N.D.W.Va.1973); Virginians for Dulles v. Volpe, 344 F.Supp. 573, 579 (E.D.Va.1972), aff'd in part and rev'd in part, 541 F.2d 442 (4th Cir. 1976); Tanner v. Armco Steel Corp., 340 F.Supp. 532, 536-37 (S.D.Tex.1972); Environmental Defense Fund v. Corps of Engineers, 325 F.Supp. 728, 739 (E.D.Ark.1971). Plaintiff cites no case to the contrary.
Although such a legal theory may be appealing, it is not "desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." Spector Motor Serv., Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.) (Hand, J., dissenting), vacated and remanded sub nom. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101 (1944). It accordingly is found that the claims which are based on these constitutional provisions must be dismissed for failure to state a claim upon which relief can be granted.
The federal common law of nuisance is another theory upon which plaintiff predicates its complaint. An analysis of this area must begin with a review of Illinois v. City of Milwaukee, 406 U.S. 91, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972). In that case, the State of Illinois brought an action against four Wisconsin cities and a City and a County Sewerage Commission seeking to stop the pollution of Lake Michigan, an interstate body of water. It was contended that such pollution constituted a public nuisance. The plaintiff attempted to invoke the original jurisdiction of the Supreme Court pursuant to Article III, section 2, clause 2 of the United States Constitution and 28 U.S.C. § 1251. Because it was ultimately decided that jurisdiction could arise under 28 U.S.C. § 1331(a),
the Court declined to exercise its original jurisdiction.
The Court cursorily disposed of the question of the jurisdictional amount by stating that "(t)he considerable interests involved in the purity of interstate waters would seem to put beyond question the jurisdictional amount provided in § 1331(a)." 406 U.S. at 98, 92 S. Ct. at 1390. The principal issue addressed by the Court was "whether pollution of interstate or navigable waters creates actions arising under the 'laws' of the United States within the meaning of § 1331(a)." Id. at 99, 92 S. Ct. at 1390. It was held that such an action does arise under § 1331(a) and "that § 1331(a) includes suits brought by a State." Id. The Court reasoned that the term "laws" includes federal common law. See Parks v. "Mr. Ford", 556 F.2d 132, 139 n. 9 (3d Cir. 1977). Accepting the rationale enunciated in Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971), the Court found that federal common law embraced the ecological and environmental rights of a State when those rights are injured by sources outside of the State.
Defendants herein first argue that plaintiff cannot bring this action since it is not a State. It is agreed that the decision in Illinois v. City of Milwaukee, supra, should not be extended to encompass an action by a private person. In response to this contention, it should be noted that plaintiff is not a private person or entity but, rather, is a township. Cases such as Parsell v. Shell Oil Co., supra, are therefore inapposite.
Defendants believe that there is language in Illinois v. City of Milwaukee, supra, which evidences an intent to limit reliance upon the federal common law of nuisance to a State. Although the Court in that case immediately was concerned with an action brought by a State, the broader holding of the case was the "pollution of interstate or navigable waters creates actions arising under the 'laws' of the United States within the meaning of § 1331(a)." 406 U.S. at 99, 92 S. Ct. at 1390. The language to which defendants refer seems to have been utilized only because that action and the cases upon which the Court relied, involved a State plaintiff. In fact, the Court stated that
it is not only the character of the parties that requires us to apply federal law. See Georgia v. Tennessee Copper Co., 206 U.S. 230, 237; cf. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 289; The Federalist No. 80 (A. Hamilton). As Mr. Justice Harlan indicated for the Court in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-27, where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism, we have fashioned federal common law . . . Certainly these same demands for applying federal law are present in the pollution of a body of water such as Lake Michigan bounded, as it is, by four States.
Id. at 105 n. 6, 92 S. Ct. at 1393.
A number of courts have expanded upon the decision in Illinois v. City of Milwaukee, supra and have allowed the United States to bring an action to abate a common law nuisance. See United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3d Cir. 1974), cert. denied, 420 U.S. 927, 95 S. Ct. 1124, 43 L. Ed. 2d 397 (1975); United States ex rel. Scott v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973); United States v. Ira S. Bushey & Sons, Inc., 346 F.Supp. 145, 148 (D.Vt.1972). But see United States v. Lindsay, 357 F.Supp. 784, 794 (E.D.N.Y.1973). Furthermore, in Committee for the Consideration of the Jones Falls Sewage Sys. v. Train, 539 F.2d 1006, 1009 n. 8 (4th Cir. 1976), the court stated that "(i)t is not essential that one or more states be formal parties if the interests of the state are sufficiently implicated." The interests sought to be protected herein are ones which affect the entire state, both aesthetically and economically.
I can see no reason why the township should not be entitled to bring an action based on the federal common law of nuisance. The extension of Illinois v. City of Milwaukee, supra, to include governmental units does not appear to be a drastic or an unwarranted application. In fact, such an expansion appears to aid in the effectuation of the concerns which prompted the Court to take the action further implementing the evolution of the federal common law. For instance, the Court stated that "(w)hen we deal with air and water in their ambient or interstate aspects, there is federal common law." 406 U.S. at 103, 92 S. Ct. at 1392. (footnote omitted). See also Vermont v. New York, 417 U.S. 270, 275 n. 5, 94 S. Ct. 2248, 41 L. Ed. 2d 61 (1974). No statement was made that the interest of the State itself precipitated the development of such a common law.
Taking into consideration the equitable nature of the federal common law of nuisance, the clearly interstate nature of the dispute, and the significant repercussions that any matter involving the well-being and preservation of the New Jersey Coastal region has on the entire State, I find that plaintiff is entitled to bring an action based on the federal common law of nuisance. See Byram River v. Port Chester, 394 F.Supp. 618, 622 (S.D.N.Y.1975). Cf. Michie v. Great Lakes Division, Nat'l Steel Corp., 495 F.2d 213, 216 n. 6 (6th Cir.) cert. denied, 419 U.S. 997, 95 S. Ct. 310, 42 L. Ed. 2d 270 (1974).
It further is contended that the FWPCA pre-empts the federal common law of nuisance. In Illinois v. City of Milwaukee, supra, the Court found no such pre-emption, but this decision was before the 1972 amendments to the FWPCA. In fact, the Court noted that "(i)t may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution." Id. at 107. The question of pre-emption therefore focuses on the effect of the 1972 amendments to the FWPCA.
In United States ex rel. Scott v. United States Steel Corp., supra, the court stated that the federal common law of nuisance was not pre-empted by the 1972 amendments, but specifically noted that its decision was prior to the adoption of the regulations. See also United States v. Ira S. Bushey & Sons, Inc., 363 F.Supp. 110, 119-20 (D.Vt.), aff'd mem. 487 F.2d 1393 (2d Cir. 1973), cert. denied, 417 U.S. 976, 94 S. Ct. 3182, 41 L. Ed. 2d 1146 (1973). In Stream Pollution Control Bd. v. United States Steel Corp., 512 F.2d 1036 (7th Cir. 1975), the Seventh Circuit found it unnecessary to decide the pre-emption issue at that time since only jurisdictional motions were then before it. The Eighth Circuit in Reserve Mining Co. v. United States, 514 F.2d 492, 532 (8th Cir. 1975) (footnote omitted), found violations of the FWPCA and the Refuse Act and therefore "deem(ed) it unnecessary and, indeed, unwise to also rely on federal nuisance law."
Section 505(e) of the FWPCA, 33 U.S.C. § 1365(e), the provision which provides the authority for citizen suits, reads as follows: "Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)." It would thus seem that Congress did not intend to pre-empt common law nuisance actions.
This interpretation is strengthened by the fact that statutes are not to be construed in derogation of common law unless such an intent is clear. See Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S. Ct. 1011, 96 L. Ed. 1294 (1932).
Illinois v. City of Milwaukee, 366 F.Supp. 298 (N.D.Ill.1973), was decided after the Supreme Court remanded the case to the district court for disposition. In that case, the court answered in the negative when faced with the question of whether the 1972 amendments of the FWPCA pre-empted the federal common law of nuisance. The court noted that prior to the 1972 amendments, it consistently had been held that the Act had not pre-empted the common law. It then was pointed out that when Congress intended provisions of the FWPCA to pre-empt other statutes, it made its objective explicit. Also rejected was the contention that certain recently enacted regulations pre-empted the federal common law of nuisance.
I am inclined to hold that there has been no pre-emption of the federal common law of nuisance by the 1972 amendments to the FWPCA and the regulations promulgated thereunder. Apparently, however, even the district court decision in Illinois v. City of Milwaukee, supra, was rendered before the effluent standards were announced. See Stream Pollution Control Bd. v. United States Steel Corp., supra at 1040 n. 10. At this time, I will therefore deny the motion to dismiss based on pre-emption without prejudice to a renewal thereof after further clarification of the nature of this suit, the new regulations and their effect on the pre-emption issue. See Committee for the Consideration of the Jones Falls Sewage Sys. v. Train, supra at 1010 (Butzner, J., dissenting).
The absence of special injury also is said to bar both the federal and state common law nuisance claims. Assuming, without deciding, that it is necessary to establish special injury, the presence or absence of such injury is a material issue of fact certainly not ripe for resolution at this time. Although defendants state that special injury was not alleged in the complaint, upon a liberal reading, the allegations therein are sufficient to imply such a contention.
There is another question with respect to the state and federal nuisance claims which has not been raised and therefore will not be decided at this juncture. The issue concerns the viability and effect of the state nuisance claim in the face of the applicability of the federal common law of nuisance cause of action. In Illinois v. City of Milwaukee, supra at 107, 92 S. Ct. at 1395 (footnote omitted), the Supreme Court stated that
federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by water pollution. While federal law governs, consideration of state standards may be relevant. . . . Thus, a State with high water-quality standards may well ask that its strict standards be honored and that it not be compelled to lower itself to the more degrading standards of a neighbor. There are no fixed rules that govern; these will be equity suits in which the informed judgment of the chancellor will largely govern.
The direction of the Court's thinking may be somewhat clarified by its quotation of the following passage from Texas v. Pankey, supra at 241-42: "Federal common law and not the varying common law of the individual States is, we think, entitled and necessary to be recognized as a basis for dealing in uniform standard with the environmental rights of a State against improper impairment by sources outside its domain." 406 U.S. at 107 n. 9, 92 S. Ct. at 1395.
See generally Miree v. DeKalb County, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977).
Accordingly, I deny defendants' motions to dismiss the claims based on nuisance.
An order consented to as to form shall be submitted within two weeks of the receipt hereof.