# Illinois v. City of Milwaukee

Supreme Court of the United States
406 U.S. 91
Illinois v. City of Milwaukee, Wisconsin, et al.
On Motion For Leave to File Bill of Complaint
No. 49, Orig. Argued: February 29, 1972 --- Decided: April 24, 1972
The State of Illinois has filed a motion for leave to file a bill of complaint against four Wisconsin cities and two local sewerage commissions for allegedly polluting Lake Michigan. Illinois seeks to invoke the Court's original jurisdiction on the ground that the defendants are instrumentalities of Wisconsin and that this suit is therefore one against the State that must be brought in this Court under Art. III, § 2, cl. 2, of the Constitution which confers original jurisdiction the Court "[i]n all cases... in which a State shall be a party," and 28 U.S.C. § 1251 (a)(1), which provides that the Court shall have "original and exclusive jurisdiction of [all] controversies between two or more States...." Under 28 U.S.C. § 1251 (b)(3) the Court has "original but not exclusive" jurisdiction of actions by a State against citizens of another State, and under § 1331 (a) a district court has original jurisdiction "of all civil actions wherein the matter in controversy exceeds $10,000... and [arises] under the Constitution [or] laws... of the United States."
Held:
    1. Though Wisconsin could be joined as a defendant here under appropriate pleadings, it is not mandatory that it be made one, and its political subdivisions are not "States" within the meaning of 28 U.S.C. § 1251 (a)(1). If those subdivisions may be sued by Illinois in a federal district court, this Court's original jurisdiction under § 1251 (b)(3) is merely permissible, not mandatory. Pp. 93-98.
    2. In this case the appropriate federal district court has jurisdiction under 28 U.S.C. § 1331 (a) to give relief against the nuisance of interstate water pollution and is the proper forum for litigation of the issues here involved. Pp. 98-101.
       (a) The jurisdictional-amount requirement of § 1331 (a) is satisfied in this action involving the purity of interstate waters. P. 98.
       (b) Pollution of interstate or navigable waters creates actions under the "laws" of the United States within the meaning of § 1331 (a), since the term "laws" embraces claims like the one here involved founded on federal common law as well as those of statutory origin.
       (c) Under § 1331 (a) a State may sue a defendant other than another State in a district court. Pp. 100-101.
    3. Federal common law applies to air and water in their ambient or interstate aspects. Pp. 101-108.
       (a) The application of federal common law to abate the pollution of interstate or navigable waters is not inconsistent with federal enforcement powers under the Water Pollution Control Act. Pp. 101-104.
       (b) While federal environmental protection statutes may be sources of federal common law, they will not necessarily form the outer limits of such law. Pp. 103, 107.
       (c) State environmental quality standards are relevant but not conclusive sources of federal common law. P. 107.
       (d) Federal equity courts have a wide range of powers to grant relief against pollution of this sort. Pp. 107-108.
Motion denied.
DOUGLAS, J., delivered the opinion for a unanimous Court.
Fred F. Herzog argued the cause for plaintiff. With him on the briefs was William J. Scott, Attorney General of Illinois.
Harry G. Slater argued the cause for defendants. With him on the brief for defendant City of Milwaukee were John J. Fleming and Richard F. Maruszewski. Michael B. Fisher and Burton A. Scott filed a brief for defendant City of Kenosha. Jack Harvey, Edward A. Krenzke, and Louis J. Roshar filed a brief for defendant City of Racine. Mr. Fleming and Harvey G. Odenbrett filed a brief for defendant Sewerage Commission of the City of Milwaukee. Ewald L. Moerke, Jr., filed a brief for defendant Metropolitan Sewerage Commission of the County of Milwaukee.