Warren E. Burger: We’ll hear arguments next in number 41 Original Jurisdiction, the State of Ohio against Wyandotte Chemicals. Mr. Brown, you may proceed whenever you’re ready.
Paul W. Brown: Mr. Chief Justice, may it please the Court. We have here a case which involves mercury pollution in the Great Lakes, an immense problem which has become more max as we have factually realized that the mercury pollution is extremely damaging to health and life of our citizens. Now, we address this action to the original jurisdiction to this Court under Article III, Section 2, cl. 2 of the Constitution and we think that the Court has in an exceedingly clear way outlined the cases in which such an action is proper. We think the Georgia versus the Tennessee Copper Company is extremely in point and the New Jersey versus New York is extremely in point and that each of these cases provide in a similar factual situation that this Court will hear a complaint so addressed by a state against the citizens of another state and against the residence of a foreign country. In each instance, the factual -- the facts are identical in that. Acts were committed the situs of which was outside of the complaining state but which created a nuisance within the state and this Court intervened for the purpose of enjoining.
Byron R. White: What law do you think the Court applied in the Tennessee case?
Paul W. Brown: In the Tennessee case, I think it applied the common law of the --
Byron R. White: What common federal law or --
Paul W. Brown: The common -- no, the common law of the State of Georgia.
Byron R. White: But there was some discussion of that matter would be about -- what --
Paul W. Brown: It seems to me that here we must.
Byron R. White: (Voice Overlap) what’s the applicable law?
Paul W. Brown: It seems to here it hasn’t occurred to me that we could apply in this case anything except the common law of the State of Ohio where the nuisance occurred.
Byron R. White: So you are claiming under a federal statute?
Paul W. Brown: No, we are not claiming under a federal statute. We are claiming under the federal constitution the right to file. We have no federal question here.
Byron R. White: Well, you aren’t stating a federal cause of action?
Paul W. Brown: We are not stating a federal cause of action, we are filing this under the common law of the State of Ohio and addressing our complaint as was done in these other two cases --
Byron R. White: Did the complaint say that the defendants have violated the federal statute?
Paul W. Brown: No sir, it does not. If it does it wasn’t intended that it should.
Byron R. White: So, you're strictly seeking a --
Paul W. Brown: A common law --
Byron R. White: A federal forum to have adjudicated a cause of action under Ohio law?
Paul W. Brown: Right and our right to do so, arises from the Constitution and from these two cases and only from that.
Byron R. White: Do you think we’re obligated to apply Ohio law?
Paul W. Brown: I think you're obligated to apply Ohio common law with regard to whether or not this constitutes a nuisance and I think you're obligated to apply Ohio common law with regard to questions of damages which may arise in the case.
Speaker: Could I ask you a question, Mr. Brown?
Paul W. Brown: Yes.
Speaker: Mr. Brown, this suit was brought by you as Attorney General today and of course you have the merit to bring it, if you’re no longer Attorney General, does the State still wish it’s appointed?
Paul W. Brown: It does. I have been appointed special counsel by my successor to come here and argue the case at this time. We desperately want it to be maintained, we think this is our only forum. We think that if we go to a lower federal court, we are confronted by the fact that we do not have a federal question nor do we have diversity of citizenship.
Byron R. White: Well, I know but that’s the exact the same or say that the party -- do you think it’s not exclusive?
Paul W. Brown: We do not fall within the exclusive jurisdiction but there is no other except our state court and the purpose for including in the Constitution. The requirement the state might come here for original jurisdiction or so that we might not have to do exactly that. That we might not have to confront our adversaries in their court, in their state court with this question which is so important --
Byron R. White: In your state court?
Paul W. Brown: In their state court, in our state court also we could.
Byron R. White: In your state court, you could have sued the facilities hence, in your own state court?
Paul W. Brown: We could.
Byron R. White: Well, it might be more than (Inaudible)?
Paul W. Brown: We felt that the purpose for including in the federal constitution the requirement, the right, this forum as original jurisdiction, was so that this would not be necessary between the state and the citizens of another state.
Byron R. White: The Congress (Inaudible)?
Paul W. Brown: It is not explicit.
Byron R. White: So, are you suggesting that?
Paul W. Brown: No. No, we could sue in our own state and we could of course sue in the foreign forum, but we take the posture that we do not need to as Georgia did not need to or as New Jersey did not need to.
Byron R. White: Do you think the choice is yours not the state?
Paul W. Brown: I think it’s ours and I think this Court has already defined the cases in which he will hear such cases. The Massachusetts versus Mellon case outlines the factual situation which is again identical to ours and that is one where we are filing suit in our proprietary capacity and we are protecting our citizens in their rights to air, water, and land and of course anyone who argues as do our opponents in their brief that we do not hold title or we are not to be fires of Ohio land and water for this purpose are entering into a legal quibble. We feel that we are properly here, we feel that this Court has carefully defined in the two cases cited -- Georgia versus Tennessee and also in New Jersey versus New York that this is a proper court. We think that except from our own court, it is the only we have no federal court available to us except this Court and we think that the concern of the people of Ohio and each people of the Great Lakes District with the ecology of the Great Lakes is so real that this Court ought to grant our motion.
Speaker: What is this specific relief that you're asking for the commission?
Paul W. Brown: We’ve made our prayer quite general issue (Inaudible) observed. I think we ought to go in -- we’ve asked for an injunction, we've asked for damages In lieu of that and we've asked for compensatory damages. We feel that under the cases that we've read, we are entitled to all of these things or some of them at least if for some reason we can't enjoin further, dumping of mercury, metallic mercury into the Detroit and St. Clair River then -- and if that metallic mercury which has been placed in the river by the defendants, polluters here with no other status than polluters who have within three or four days after discovering that they should not pollute found ways of substantially reducing the pollution. If we cannot get injunction and removal then we think we have very properly asked this Court for damages and we think that we asked for damages for two purposes. One, to give Ohio in money those things that it has lost which are its natural resources and belong to all of its people. And two and I think this is most important to say the polluters generally who are not fearful of injunctions because they continue to produce and continue to pollute until they are enjoined from so doing. But to say to them in the future, damages will be awarded for the State or its natural resources in those instances where you have placed into the public water and air, commodities which can be removed if it only with the great difficulty. We rather enjoy being confronted by the defendant saying it’s impractical for us to remove this mercury from the river the St. Clair and the Detroit River. We don’t believe it is because metallic mercury there in the river is at the point where it was discharged into the river by Dow Canada has been tested and checked in it comes to 1,400 to 1,800 parts per million of metallic mercury still embedded in the slime and industrial debris at the bottom of that river, it’s there. The thing that we've learned in the last few years is that this metallic mercury by the action of the small living animals in the bottom of that sludge. In the absence of oxygen are able to convert metallic mercury into mercury which can be assumed that would -- and which enters the food change and this of course is what was discovered in 1969 which brought about the order from both Ohio and from Ontario that fishing be stopped in the lakes because it was discovered that more than 50% of the fish tested exceeded mercury content of 0.5 parts per million in a ratable portions. Now, some of them exceeded this by so much that it is dirt line, fearsome and dangerous because some of the more 8 parts per million of mercury -- methyl mercury in the flesh of these fish and some of them in Lake St. Clair where as much as 10 parts per million. Now, in Japan where they had 116 deaths for severe neurological damage from which arose from the fact the people in Minamata Bay area where consuming fish arose in instances where the fish had only double that amount, only double that amount and the deaths that occurred and the neurological damage that occurred was so severe that they were included in those number 16 cases of children who were born with birth defects because of the inclusion of this methyl mercury in their food. Now we are -- sir?
Hugo L. Black: Do you think that Congress has power to pass a law allowing create a cause of action to part of the State for damages for this injury?
Paul W. Brown: I think the right already exists for -- if I understand your question for Ohio to ask for damages against those who polluted in this instance --
Hugo L. Black: On the federal law or state law?
Paul W. Brown: This is under the state common law sir. We don’t have a federal law. There is no federal law on this -- there is no federal bar to this action. This is argued in the briefs of Dolan and not in the brief of Wyandotte. Wyandotte admits that there is no federal bar that neither the treaty nor the international commission bars our action. The Solicitor General agrees with us that there is no federal bar. The Solicitor General I think will argue this in detail and I leave part of this to him for that purpose, but there is no bar that we’re properly within the jurisdiction of this Court and that the only question and that we are here as a proprietor and we are seeking damages for all the people and that these cases every case here reflects our rights so --
Hugo L. Black: Can you that? Can you seek damages for all the people?
Paul W. Brown: Sir?
Hugo L. Black: Can you seek damages for all people?
Paul W. Brown: We seek damages, yes sir for the State’s right as a proprietor of its natural resources for all of its people. Now, you do have and you have decided cases which are cited in the defendant’s brief and which this Court did not take original jurisdiction in cases and which the damages were sought for a particular group of people and those cases do not apply here because our address our plaintiff --
Hugo L. Black: If the State can have a cause of action under its common law why couldn’t its legislature create one?
Paul W. Brown: We do have one already sir. The action is there for damages.
Hugo L. Black: So this legislature create one and set out its boundaries and so forth for the damages and for the (Inaudible)?
Paul W. Brown: There is one there sir and we could use it except under the Constitution we’re entitled to bring our action in this Court and I feel that this --
Hugo L. Black: So, what statute? Have you cited that statute?
Paul W. Brown: It’s Article III of the Constitution Section 2 cl. 2 of federal constitution and there is a 28 United States Code annotated. There is -- this right is formalize in the federal statute that says, --
Speaker: Could I ask you this question?
Paul W. Brown: Yes.
Speaker: Assuming that you all seem to agree in both sides that there's technical jurisdiction in this Court and retain this case. I assume you also agreed the Court has discretion as to whether or not it should exercise jurisdiction which is technically conferred upon it?
Paul W. Brown: I don’t agree.
Speaker: You do not agree?
Paul W. Brown: I do not agree. The work “discretion” occurs in a footnote in the Solicitor General’s brief. The real way this Court should determine whether or not it accepts is either is to follow the guidelines which have already been set up by this Court in Massachusetts versus Mellon in which this Court said that the state merely had -- merely being a party did not give a right to come in here. It must also have a justiciable lawsuit and we have such, we have a lawsuit. It doesn’t fall within any of the cases in which in this Court in which a state has been precluded from action and it does fall within those on the right side of the jurisdictional guidelines which were drawn by this Court and very clearly stated in Massachusetts versus Mellon. There are some other cases which the defendant argues which do not apply. The defendants in this case have set up a number of strong men. They as polluters have tried desperately to use every measure to continue to pollute.
Byron R. White: What would you -- what’s you reaction, it may not go to jurisdiction but in terms on the injunction phase of the case, what’s the significance of the fact that if it is a fact that Wyandotte has seized to pollute and that Dow Canada is under an Ontario order to hold its pollution down to a certain level?
Paul W. Brown: These are factual questions which we would get to in the merits. But we do not think they have seized to pollute. In fact, we have indications that Canada does not think that they have seized to pollute and that Canada is about to file further judicial action there against Dow. Now we have this --
Byron R. White: Now, let’s assume it were true that they have stopped polluting completely? Let's’ just assume what we are talking about.
Paul W. Brown: I think this is a ploy that polluters generally use. In other words, when you catch me, I will stop.
Byron R. White: You say that --
Paul W. Brown: They are still introducing mercury to the water, they admitted at least to the point of half of pound a day.
Byron R. White: Do you say that shouldn’t go to jurisdiction and it should be a matter for the Special Master on motion?
Paul W. Brown: I think it should be a matter for the Special Master.
Byron R. White: Or on motion to dismiss or something like that for failure to state a claim or something else?
Paul W. Brown: If we fail to prove our case then of course we will lose, but we have to prove that they not only have polluted but the pollution continues. In addition to this, metallic mercury concentrated at the point which the effluent is dumped into the river by Dow and by Wyandotte it is still there on the bottom of the river and it’s still being leached away by the passage of water there over it, and is still being acted upon by the bacteria throughout the lakes so that you continue to get pollution which was cause and brought about by their original action. In addition to that, this proceeding is going to be -- have to be constantly monitored because the amount of sewage and other industrial waste that is in the lake made by other changes began to react upon this metallic mercury at an ever increasing rate so that we may get a higher rate of mercury pollution in the fish themselves without the addition of any additional mercury.
Byron R. White: Well, I suppose there are other sources of mercury besides this particular defendant?
Paul W. Brown: We believe we can show that the chlor-alkali process of making caustic soda and the chlorine is the process which provides by far the greatest percentage in amount of this particular pollutant mercury.
Byron R. White: But there are other contributors to mercury (Voice Overlap).
Paul W. Brown: No other, there are. We believe the evidence would clearly show there are no other substantial polluters that these people are the only substantial polluters in this particular area and we believe that if there are other substantial polluters we would be delighted to have the defendants make the parties after wherein here on the merits.
Potter Stewart: But of course that’s -- that all. I appreciate your answering my brother White question but that all does go to the merits?
Paul W. Brown: It does go to the merits and I am afraid that --
Potter Stewart: What you’ve become relevant if has or when this motion to file a complaint is granted, then only then --
Paul W. Brown: Right and I am afraid that the judgment with regard to our motion may turn upon your anticipation of what the merits are and hence, I must strongly state that the facts are with us and against our opponents.
Potter Stewart: Well, I would assume that the ordinary concepts of pleading we have a motion to file a complaint then we could assume the allegations of the complaint are true for that purpose of that motion.
Paul W. Brown: That’s right.
Potter Stewart: But the real problem here, our initial problem and what this -- the argument on this motion is directed to I would -- should suppose would be the jurisdiction of this Court, its original jurisdiction. As you say, there seems to be no doubt of that jurisdiction under Article III of Section 2 and action by a state against citizens of the different States. And then an answer to my brother Harlan, I understood you to say that it was your position that the Court had absolutely no jurisdiction in this area. What I think you say -- what I think you said, meant to say no discretion to this area that since the Constitution conferred jurisdiction that was it. But I think perhaps you meant and perhaps what you did say was that in light of the deciding cases --
Paul W. Brown: Right.
Potter Stewart: The Court should allow the complaint to be filed and in the light of its decided cases, the Court’s discretion was limited by those precedents and would require filing of the complaint.
Paul W. Brown: You’ll have to write some new law if you want to exercise discretion in this case.
Potter Stewart: If we want to deny this motion, right?
Paul W. Brown: Right.
Potter Stewart: But now --
Paul W. Brown: Right now, I was going to Supreme Court of Ohio and we have the same complaint made to us. We were final and hence, we had a certain discretion.
Potter Stewart: Right
Paul W. Brown: But under the cases which have been written and under the Constitution and laws on the books, we are entitled to be here and the only question that I would have any difficulty with answering is the question of the exact shape and form of the final decree in this Court, which is also something we must reach when we develop all the factual background. Now, what Ohio wants to do --
Potter Stewart: Just to get back to the -- what I have thought was really the only thing before us and that is motion to file a bill of complaint.
Paul W. Brown: That’s all there is before us, sir.
Potter Stewart: And not a matter of beyond the facts of the case whether your allegations are correct or incorrect, certainly not a matter of relief yet but a motion to file a complaint and I understand your position that under the decided cases, under those precedents is motion ought to be granted. But I -- you do concede, do you not that Article III, Section 2 does not confer at compulsory jurisdiction in and of its own terms on case of this nature, don’t you?
Paul W. Brown: It seems to me (Voice Overlap) If we address our --
Potter Stewart: I mean Massachusetts against Mellon said --
Paul W. Brown: It said that we had to be a party and in additional we had to have lawsuit, it’s exactly what it said.
Potter Stewart: Right.
Paul W. Brown: When we are a party and we do have a lawsuit.
Thurgood Marshall: Are there rights beyond, the rights of every other citizen which in my question. Am I correct if this alleged pollution affects others and the state people in the State of Ohio?
Paul W. Brown: It affects individuals and groups differently then it affects the public generally but this has never been a test under any case that I read.
Thurgood Marshall: Does it not affect people of other States other than Ohio?
Paul W. Brown: It does.
Thurgood Marshall: So, Ohio doesn’t have any unique position on this injury?
Paul W. Brown: It has unique position factually with regard to injury and that 80% of the fish, if we’re going to discuss that 80% of the fish are in the Ohio waters. Most --
Thurgood Marshall: If you’re uncertain that this Court must take jurisdiction, why did you file a motion?
Paul W. Brown: We filed motion intended to petition.
Thurgood Marshall: Why didn’t you just file the complaint? There is nothing else we can do but take it.
Paul W. Brown: Well, there is something else you can do sir and I beg your pardon if you gather that I say nothing that you have no discretion. Of course you have an existing discretion to deny any case and there would be nothing I, as an applicant to the Court could do about it because the finality of your judgment. But Mr. Justice Stewart has said exactly what I think my position is and that is the Constitution is clear, the federal statute is clear and the cases that this Court has here before decided are clear and those which we've cited say we have a right in these particular facts to address ourselves to your Court in this way. And those which have denied this Court to others for reasons which have been stated, those reasons do not apply to us or to our action.
Potter Stewart: And it’s your submission I guess it’s agreed that you could not bring this -- you cannot file this complaint in a federal district court?
Paul W. Brown: We could not and there is an amicus briefs filed by the Attorney General (Voice Overlap).
Potter Stewart: Let me ask the question.
Paul W. Brown: Sir, I'm sorry.
Potter Stewart: Because there is no diversity and because there's no federal question?
Paul W. Brown: Right.
Potter Stewart: Is that correct?
Paul W. Brown: And this was raised also by Kelly from Michigan the Attorney General who joined with us as amicus been sought this Court to intervene.
Potter Stewart: And why couldn’t you file it in a Common Pleas Court in the State of Ohio?
Paul W. Brown: We could file in a Common Pleas Court in the State of Ohio but because we have the right as we view it under the Constitution to say this is our Court. The Supreme Court was conceived by those who drafted the Constitution to be the Court of the State under these circumstances as we come here, again, the urgency of the matter. The urgency of the matter which rest upon the fact that this polluters, Dow chemical principally Dow chemical of Canada has introduced into the Sarnia River beginning in 1949 and proceeding up to and including the present amounts of mercury known to be a poison and they have done this at a rate which they admit to have been as much as 200 pounds in one day and at an average rate of 30 pounds a day.
Byron R. White: Well, why couldn’t the Common Please Court and the appropriate County in Ohio handle that situation just as well if not a little better than we can? For one thing, they’re far more conversant with Ohio common law than with this Court be and secondly, I don’t see why matters might or would not move just as expeditiously in that court?
Paul W. Brown: Well, problems immense and the people are concerned.
Byron R. White: The Common Pleas Courts of Ohio are used to immense problems, aren’t they?
Paul W. Brown: True. I believe there is another problem. The connection between Dow and U.S. maybe easily proved that connection between Dow and Ohio may not be so easily proved. In other words, we can get a connection between Dow of Canada which would justify a court in saying that we have proper service, also a question which will have to arrive at a later date.
Byron R. White: That problem of personal service. (Voice Overlap)
Paul W. Brown: The problem of personal service is here, better handled than there.
Warren E. Burger: Haven't you brought an action in the Common Pleas Courts of Ohio (Voice Overlap) not including the Canadian Corporation?
Paul W. Brown: No sir, we have brought an action Common Pleas Court of Ohio against one who is charged with being a polluter in Ohio, the Bitrex who is also a producer of chlorine and caustic soda using this mercury cell method.
Warren E. Burger: How is their case different from the basic case here laying aside the jurisdiction of the Canadian Corporation?
Paul W. Brown: Their case is different, vastly different and that we have found they are not a substantial polluter and that there's no factual background.
Warren E. Burger: If you couldn’t have sought that action here against the Deitrick Company, could you not?
Paul W. Brown: We could not have because then we would not have the jurisdiction here. We can address ourselves here only to residence of other states or to foreign residence.
Warren E. Burger: Is Deitrick is an Ohio Corporation?
Paul W. Brown: Deitrick is an Ohio corporation.
Warren E. Burger: I think.
Paul W. Brown: And some of our opponents may seek that to make them parties to this case but we could not.
Warren E. Burger: Very well, Mr. Brown. Mr. Strauss.
Peter L. Strauss: Mr. Chief Justice and may it please the Court. The United States has filed its brief amicus curiae and appears here today an invitation of this Court and as the Court knows from our brief we express no view that whether in this particular case, the Court should as a matter of discretion grant lead to Ohio to file its complaint and I may suggest that perhaps I really have a very little to talk about since the party is do seem --
Byron R. White: Do you see any doubt about our discretion to parties being it was the last resort to anything (Inaudible)?
Peter L. Strauss: No, I find none and I think one thing that might have been mentioned. I find no doubt. And one thing which might have been mentioned while there are these prior cases which point in very much the same direction as Ohio’s complaint to the New Jersey versus New York City and particularly -- and in particular has a remarkable factual congruence with the asserted facts of the complaint here. Those cases were all decided before the present federal statutes and before the prominence at least of perhaps certain matters under the Boundary Waters Treaty weren’t relevant to that in any event in this Court in its opinions in those cases albeit after the merits have been decided was quite emphatic about how they’d rather have. The federal statutes or some kind of conference procedures or something of the sort and it seemed incumbent upon us to address ourselves as we have in our brief to the question whether indeed those statutes foreclose the remedy in this Court. And to give the Court the types of information that it might wish to use in exercising that discretion.
Byron R. White: Mr. Strauss, just for a moment, where do we get our discretion to refuse to hear a case that is within our original jurisdiction, what is the theoretical basis for that?
Peter L. Strauss: I Suppose what we’re speaking of here is the case that's not only within this Court’s original jurisdiction but also within the original jurisdiction of another court --
Byron R. White: Yes.
Peter L. Strauss: -- that when the Court’s jurisdiction is exclusive and original, the Court quite properly could be said not to have jurisdiction but when it believes that there’re may be a remedy in another court something on the order of Doctrine of Forum Non Conveniens at which I think quite appropriately takes into account the other responsibilities that this Court has and its --
Byron R. White: Sort of an abstention doctrine?
Peter L. Strauss: That’s right, its capacity to sit as a finder of fact which is called on to be and on the other side you do have the aspects that Mr. Brown was speaking of its appointment really as a court before the state and you do have one of the States (Voice Overlap).
Byron R. White: Sort of like an adversity action when it’s proper to abstain staying even though there’s jurisdiction?
Peter L. Strauss: Somewhat similar to that I think the considerations are different.
Warren E. Burger: Would it not be more perhaps like the abstention doctrine applied or state courts have jurisdiction and precisely the same range of remedy?
Peter L. Strauss: I'm not sure I follow the question.
Warren E. Burger: Well, in three-judge court cases that come here frequently, we sometimes sustain as we did last year in Reetz against Bozanich when there was a challenge to the Alaska statute.
Peter L. Strauss: Well, I think there one has --
Warren E. Burger: But we have jurisdiction as Justice White suggested that we remanded the state court because there was a possible remedy there.
Peter L. Strauss: I think there one has certain considerations of federalism which are quite important. There's been some discussion this morning about the capacity of this Court is distinct from an Ohio court to determine Ohio law and that certainly is a relevant factor. Now, I may say that I think there may be -- that may turn out to be somewhat more dispute about the actual jurisdiction of this Court than does appear from the papers in their present state. And in particular with respect to the jurisdiction over Dow Chemical of Canada and that’s the principal matter I intend to talk about this morning. It is agreed that the questions of personal jurisdiction and service of process are not yet raised similarly any questions about indispensable parties. And issues of that sort would have to await decision of a later time and it does seem to be general agreement that injunctive relief at least would be within the court’s power to order, although there are some dispute again with regard to the Canadian defendant. So I don’t feel I have to spend much time on the Wyandotte Corporation’s claim. They addressed themselves only to the Federal Water Quality statutes and in this respect I simply want to restate what’s said out in much greater length in our brief. What are certainly from Ohio’s point of view and I think in terms of the relief it’s asked from this Court. Realistically, deficiencies in those remedies which the Court ought to -- ought very much to bear in mind. In particular, the remedy is prospective only, it operates only as a means of stopping future pollution and it’s heavily laden with the administrative delay besides, except for oil which is dealt with in a separate provision 33 U.S.C. Section 1161. The Act imposes no obligation on someone who has polluted in the past to remove the polluting substances which he has introduced into the waters or to bear responsibility for the damages which those substances of course but leaves those matters to the courts or to other agencies to a suit such as this one. An injunctive remedy for nuisance is common in this Court’s original jurisdiction as its already been pointed out and that it’s also clear that this Court could order removal of a nuisance which would not abate of its own force as this mercury is alleged to be. The Court did such a thing in Pennsylvania versus the Wheeling Bridge Company in 13 How. of its reports and we think it easily follows also from the Wyandotte Transportation Company decision of a few terms ago that removal might be accomplished by the provision of the funds such as Ohio seeks and towards the defendant could pay moneys to be use for that purpose. I may say, we do have some difficulty with the claim of Ohio for compensatory damages, but it doesn’t seem to us that that claim is necessarily excluded from this Court’s jurisdiction. In the past, the Court has rejected such claims as Mr. Brown points out because it was clear that they were intended for the benefit of particular individual. In North Dakota versus Minnesota and particular the State segregated its claim that was $5,000.00 for us and a million dollars for the farmers who were paying the expenses of this litigation. There is no such differentiation here and we really don’t know how Ohio intends to use the money at which it receives. It may be remarked in the first place that Ohio has undoubted proprietary interest here and we can't say as could be said in North Dakota case what proportion that proprietary interest bears to the damages that might be assessed nor is it excluded I think that in assessment of damages could be used in a way that bears very strongly on the nuisance remedy. Now the defendants makes a great deal in their brief of the difficulty of calculating the sums that would be required to remove the mercury from the lake bed and of the enormity of that financial burden. I would suggest and it has been suggested by some commentators that an appropriate way of calculating monetary relief in such circumstances and perhaps the simpler one is to assess the damages which have been done and then to use those funds for that removal purpose and certainly it doesn’t seem to me excluded on the complaint that that’s what Ohio would do. Certainly, it ought not to be the case but because the one level of funds is so hard to compute in so amount -- and so amends in amount that the polluter should simply go away scot-free. And finally, I would point out in this regard that if Ohio were using the funds in this particular way as a means of remedying the nuisance it couldn’t be claimed as the defendants do that there were some risk of double recovery because although the measure might be the same as could be obtained in the suit brought by an individual. The use and the remedy would be entirely different. I come now to the principal area of controversy of importance to the United States and that is the possible liability of Dow Chemical of Canada or of its parent Dow Chemical Company for acts done at the company’s Canadian factory whose effects are felt in the United States. Now these two companies appear quite strongly to insist that any assertion of jurisdiction by this Court might provoke in international incident or undercut in international treaty and we want to make it claim that it’s the view of the United States that no such consequences would occur. The power of American courts to redress torts whose effects are felt on American soil is we believe indisputable. The company has also raised certain doubts regarding whether the Court could provide an effective remedy. This goes essentially to matters of discretion but we do point out certain respects in which more facts are needed before a final conclusion can be reach. Let me begin with the issue of liability, I think all of us would agree on a simple case in which issues of causation are not obscure in case of the individual who is standing on one side of Niagara River fires a rifle across it and it kills the person on the other side. The person -- if the State in which the individual was murdered is able to secure jurisdiction over the person of the sniper. And that of course is not a question that’s here today. There could be no dispute of its power to try him for murder. International law recognizes that right and I don’t think the party seriously contests it. The situation is the same if instead of sending a rifle bullet he sends sludge which causes a public nuisance on the other side of the river. Again, to the extent that a public nuisance may be prosecuted as a crime -- there could be no dispute that the recipient state may prosecute the individual if it may obtain service on him before that crime. A Canadian court would feel as competent as an American court in those circumstances and the only way an international incident could arise would be if some improper means have been used to secure jurisdiction of the defendant or a due process where somehow denied in the course of the trial and both of which we are quite certain will not happen in this proceedings. There might be some question whether a judicial decree obtained in civil proceedings would be enforceable in the courts of the other jurisdiction. And that is -- we don’t -- we think it should be quite clear to this Court that if it ultimately does grant relief a judgment to Ohio then judgment will then be Ohio is to enforce as part of the same situation and Ohio may indeed have some difficulty in enforcing that judgment in Canadian court. And that's a matter to where trouble return --
Warren E. Burger: Then you would say of course it’s up to Ohio, do you? I’m not quite sure I follow you. Are you suggesting that the courts have no responsibility for enforcement of their own judgment?
Peter L. Strauss: In Canada, excuse me.
Warren E. Burger: Oh!
Peter L. Strauss: So far as enforcement to the judgment --
Warren E. Burger: That’s in terms of territorial jurisdiction?
Peter L. Strauss: That’s right. The suggestion is made that the fact that this is a public nuisance suit here makes a difference. I think the argument is essentially that only the United States could bring an action for public nuisance against a person who is resident in a foreign country and producing his nuisance from that point. As if only the United States could prosecute the sniper on the banks of the Niagara River or a murder which he causes in New York State, I think to state the proposition in that way is to answer under the Constitution. The States are forbidden from engaging in diplomacy but Ohio doesn’t seek to involve the Canadian Government in any respect in this case. It charges an offense to its domestic laws felt on its own soil against the particular individual who may or may not be within its power to bring to justice and if the individual is within its power. It is only because it is available to domestic service of process. Canada need never be consulted in its territory is never entered upon. Ohio obtains the judgment and seeks to have it enforced as I said before if it must take it to Canada, Canadian courts will then decide what recognition to give the judgment. That will be a Canadian domestic matter. There are of course alternative ways of dealing with the situation. Ohio might have come to the United States and requested the United States to take this matter up with the Canadian Government as a diplomatic matter. That was done in the case prominently mentioned in the briefs the Trail Smelter case in British Columbia. But this is merely an alternative on a required motive proceeding and as we said out at length in our brief, the Boundary Waters Treaty of 1909 provides no mechanism for the mandatory resolution of pollution disputes concerning boundary waters. In this connection, I think I ought to correct a misapprehension which Dow Chemical of United States at least have with regard to the Boundary Waters Treaty. They twice mentioned Article II of the treaty as if it had some bearing on this case may be found at page 3-a and 4-a of the brief of Dow Chemical of Canada. That Article applies, well I think and perhaps the quickest way to do this is to suggest the three different sorts of -- three different situations that one may have across the Canadian-American boundary. And we have a river that runs across the boundary and may be interfered with upstream or downstream and then one may have waters like Lake Erie which sit on the boundary. Only waters on the boundary are designated boundary waters under the treaty. Article II provides as to a river which runs across the boundary that if someone on the upstream ended it interferes with its use and that might conceivably include pollution although it has never been so adjudicated, then and in that circumstance only a downstream individual may come into the courts of the Upstream nation and litigate in that forum the issue of the damages which is done to him and is entitled to have that litigation resolve in his favor under the laws of that nation as if he were a citizen thereof. Now, that is a specific remedy and if that were applicable in this case, Ohio would be able to go into the courts of Canada and get relief against Dow Canada. It’s not applicable here because we’re dealing with boundary waters not a river which crosses the boundary and the result is that Ohio hasn’t much less certain remedy, I would say than it would have if Article II applied. Nonetheless, the failure of the treaty to deal with that situation in the view of the United States does not at all exclude the possibility of the remedy which Ohio is seeking today. The remedy which Ohio is seeking is recognized an international law and there is nothing in the treaty which excludes it. It seems to us that the principle stated by this Court in New Jersey versus New York City is equally applicable here. If the defendant is before the Court and I'm reading from page 482 of volume 283 of the Court’s opinion that the defendant is before the Court in the property of plaintiff and its citizens that is alleged to have been injured by such dumping is within the court’s territorial jurisdiction the situs of the Act creating the nuisance whether within or without the United States is of no importance. And turn very briefly to the problems of enforcement at which chiefly is I think this Court has already recognized should await later resolution. The first observation is that to the extent money damages are possible there is really no issue about enforcement nor is there any possible disability regarding this Court’s power to give injunctive relief so far as that injunctive relief applies on this side of the boundary. If the Court has jurisdiction over Dow Canada’s person it may enjoin Dow Canada requiring it to remove the mercury from the American half of the St. Clair River or of the Detroit River or of Lake Erie and there should be no question to this Court’s power to do that. There are I think some problems involved with granting injunctive relief which would necessarily take effect in Canada or to put -- excuse me, to put it in other way which would require that aid of a Canadian court. I think, if the Court wherever to conclude that that were necessary it could fairly apprehend that the aid of a Canadian court might not be forthcoming. But as we understand its complaint, Ohio asked only that Dow be enjoined from producing the objective to effects on the American side of the boundary. And the cases are legion which state that such an injunction is proper for an American court to enter the Salton Sea cases, the United States versus -- excuse Steele versus Bulova Watch Company, Vanity Fair Mills versus Eaton. All of these cases quite clearly comprehend that where an effect is felt within the United States, the United States court having jurisdiction of the parties has the authority to enter an injunction requiring that that effect be seized and as we understand that is all that Ohio seeks in this case. The point is that it begs the question to state as Dow does. The Dow Chemical of Canada’s conduct has been wholly fund and that therefore this Court lacks jurisdiction to correct it. On the allegations of the complaint, it must be assumed that the tortious conduct is extended to this country and if that’s the case there is no principle of international law that bars this Court from entertaining Ohio seeking. Thank you.
Warren E. Burger: Thank you Mr. Strauss. Mr. Moelmann.
John M. Moelmann: Mr. Chief Justice, may it please the Court. On behalf of the defendant Wyandotte Chemicals Corporation, we have raised no question of jurisdiction in this Court. It is our position that it is a discretionary matter within the Court sound discretion and therefore we have urged certain prudential considerations to suggest to the Court how its discretion should be exercise. There are not only considerable legal precedents but there are practical precedents. The questions have indicated the legal precedents are not as well-established as Mr. Brown would have the Court believe. The cases of which he speaks I believe were cases that either fell within the round of cases of exclusive jurisdiction or they were cases where there were no mechanics setup by the statutes for administrative agencies to afford relief and therefore the Court exercise its discretion because the applicant had no other place to go for a relief. For the Court to accept this motion is our belief that it would not only contravene national and state policy which relates to these complex problems of pollution, but also has an international aspect to it under the treaty. I'll confine my remarks solely to the national and state problem because my colleagues representing Dow have very ably handled the international problem and I'm sure they won't discuss it with you. The complexities of ecology are involved here as well as the complexity of remedies. The statutes of this United States as well as the various States have set up a very complex organization for handling the matters of pollution through administrative agencies and this is so important because the matter of pollution as being a problem within this country is relatively new. For instance, nobody knew that mercury in water created any problem before last March 1970, less than a year ago. These companies said, we’re emptying water into the streams and the lakes felt that they were doing something that was not injurious to anybody. Wyandotte had continued the same operation for over 32 years and under the inspections of the State of Michigan through their Water Resources Commission which inspected them periodically, never raised any question about mercury. There was no known problem and still science is not aware that there is even a problem now in so far as the metallic mercury which is inorganic being put into water creating the methyl mercury which is organic and which is ingested by fish. Nobody has been able to prove that that comes from the inorganic mercury. As you all know, mercury is very heavy, it goes into water and it sinks right to the bottom. Dow has its plant up at Sarnia. The Wyandotte Plant is at Wyandotte on the Detroit River. Neither of them are on Lake Erie. Lake Erie is receiving mercury from multiple sources, Mr. Brown has tend to minimize it but it is coming not only from these sources if it can be proven they're coming from there and nobody is quite sure of that. But there are other companies that are on those waters or on the streams emptying into Lake Erie. There is much mercury in the air coming from furnaces burning coal and being a heavy substance, it immediately settles on the earth or on the top of the water and the surface waters carry it into Lake Erie and other bodies of water. There is mercury coming from sewage disposal plants of all the metropolitan areas around that area. There is mercury coming from less serious things for instance even the dentist run some of it down his sink when he is working on your teeth.
Potter Stewart: Your client’s plant is located at Wyandotte, Michigan?
John M. Moelmann: Yes, Your Honor.
Potter Stewart: On the --
John M. Moelmann: On the Detroit River.
Potter Stewart: On the Detroit River which -- is there any of these briefs or documents, a map that would be helpful or any map at all?
John M. Moelmann: I believe there is one in one of the briefs, is there not counsel? Yes.
Potter Stewart: Is it in this file very recently?
John M. Moelmann: Yes, it’s in that.
Hugo L. Black: Where did you say it is?
John M. Moelmann: It’s in the document that Mr. Justice Stewart had in his hand there. Page 1, figure 1. Since the problem of mercury has come to the attention of the public and by the way it was accidentally discovered by a Swedish student who had known that the problem was studied in Sweden in so far as that it had to do with wildlife that consumes seed treated by fungicides and in the fungicides, mercury is used. And so he knew that that problem existed and when he found by accident some methyl mercury which is the organic type within the fish up in Lake St. Clair and reported to the Canadian Government, they immediately reacted and before they could determine whether or not it was any serious problem, they put a prohibition on fishing. This set off all the publicity that has been given the problem but the manner in which methyl mercury is developed is unknown to science. Now, counsel spoke of the Japanese incident. Before commenting on that I’d like to say that no one in North America or Europe has been known to have been injured by ingesting mercury by eating fish. The only incident that's known is the incident that occurred in Japan. And there, the situation was much different because it wasn’t metallic mercury put in the water. It was organic mercury in the form of methyl mercury which of course is very toxic. It was in just -- it was induced directly into the water and a place where this village got all of its shellfish and as you know the Japanese eat fish about three times a day. And therefore, they had a serious problem, but that problem doesn’t exist in this country. This leads me to the conclusion and a point which I would like to strongly urge to this Court in deciding whether or not it should exercise its discretion and that is that there is no emergency whatsoever in this problem. I attended the science conference of the University of Michigan held this fall. Science is working on this problem everyday. The conclusions I learned from that meeting are few because science hasn’t advance very far in the subject. But I did learn this, that there is no eminent danger to the American people or the people of Canada and any location. I also learned that there are many bodies of water on this continent where fish are found to contain as much mercury as the ones in Lake Erie and there is no commercial dumping of mercury at all into those bodies of water.
Potter Stewart: Are there any fish left in Lake Erie?
John M. Moelmann: This by the way Your Honor does not kill the fish.
Potter Stewart: Well, what's the --
John M. Moelmann: I really don’t know.
Potter Stewart: (Voice Overlap)
John M. Moelmann: There are a lot of fish there Mr. Justice Douglas wrote on the subject maybe he could tell you about. I don’t know how many fish to that.
Potter Stewart: (Voice Overlap) the past but I haven’t been invited in recent years, I understood there’s not much more to catch anymore.
John M. Moelmann: I understand there are a lot of fish but I think the varieties are not as desirable as they use to.
Potter Stewart: Catfish, that’s all that’s left there, isn’t it?
John M. Moelmann: That’s right.
Potter Stewart: Well, is there any --
John M. Moelmann: But there are a lot of problems and this is the subject and which Mr. Justice Douglas wrote that is creating this problem one of which is the phosphates that are continuously dumped in the Lake Erie. These phosphates have cause an excessive amount of algae to grow in that lake and have removed the oxygen from the water and have cause the type of fish to which he refer to greatly developed. Mercury, you won't even be aware that it was in the water when you look at it.
Byron R. White: But Ohio state hearing, they closed this for awhile.
John M. Moelmann: They had it closed a short while and they reopened it. Yes, Your Honor. I think they still prohibit the fishing of walleyes.
Byron R. White: Why?
John M. Moelmann: Well, apparently they seem to develop a greater amount of methyl mercury in their tissue than the other fish.
Byron R. White: So, they (Inaudible) prohibit the fishing of walleyes?
John M. Moelmann: For walleye, yes. Now, Wyandotte seized putting any mercury into Detroit River on March 24, 1970 as soon as this problem became apparent. The Michigan Court took up the problem and a consent decree was entered into by Wyandotte whereby a Wyandotte agreed to immediately set up a temporary means for keeping any mercury to go back into the water and to create a permanent recycling facility by May 1, 1971. I must regretfully advise the Court that when they -- when enter the problem of revising the whole plant to do this, they found it was uneconomical to do so and the plant will be permanently closed on May 1st -- pardon April 1st of this year. There is of course the alternate remedies which have been mentioned. We have this network or federal statutes which have recently been developed to which are the State of Ohio can turn for its relief. I don’t have time to go into them but the briefs cover them very thoroughly and Ohio has these alternate methods which are much more able to deal with a continuing problem and to work out solutions. Then the facilities of this Court, if this Court were to take this case, I venture to say it won't be inundated with pollution and litigation. The facilities of this Court are not set up for that purpose, it would need Special Master. It’s a kind of a forum non conveniens as far as the litigants are concerned it would be a very expensive type of litigation and we don’t know where we’re going because science hasn’t progress that far. One of the questions had to do with the prayer of the complaint. I’d like to just conclude by calling your specific attention to the prayers of this complaint. First, that as the Court to declare that this is a public nuisance and that it be abated. It has already been abated. Secondly, it had asked for an injunction of something which is already seized be entered. Third, it has set a mandatory injunction to remove all mercury compounds from Lake Erie be entered whereas science knows of no way this can be done. In fact, a lot of the scientists are saying if it be attempted it will stir up the mercury so it will cause a greater problem. And this decree could only be concerned with the proportionate share of the mercury in the water that the respective litigants have put in there and proportionate to what everybody has contributed to the situation. And that has become a fundamental precedent of pollution law. How will that be determined? You know they can't measure the mercury in the lake because it is so infinite decimal in proportion to the size of the lake. And lastly, they asked that damages be assessed to compensate for existing and future damages to Lake Erie, the fish and other wildlife, the vegetation and the citizens and inhabitants of Ohio which would be impossible to measure. It seems to me their prayer indulges in asking this Court to do that which would be futile to take top tribunal of this country into something where we don’t know where we’re going.
Warren E. Burger: Thank you Mr. Moelmann.[Lunch Recess] Mr. Outerbridge, you may proceed whenever you're ready.
Ian W. Outerbridge: Mr. Chief Justice and may it please the Court. Since of March of 1970, our horizons of knowledge with respect to the problems of mercury pollution have expanded like universe. In the appendix to our brief and reply the Court will find an article from the Washington Post dated December 28, 1970. And the Court may know that the International Joint Commission came down with a report of 9 December 1970 and that report was filed both in Washington and Ottawa on the 14th of January 1971. I would like to review with the Court some of the facts which appear from these two most recent documents. The first of these is that mercury is omnipresent, it’s present everywhere. It occurs naturally and the conclusion would appear to be that only 50% of its occurrence is as a consequence of the effluent of manufacturing processes. The second one is that up to 1.5 parts per million methyl mercury which is above the limit of 0.5 set by the Department of Health has been found in fish caught as much as 42 years ago in the United States and that presence of mercury in those fish is unlikely to attributable to pollution.
Byron R. White: A matter of curiosity, Mr. Outerbridge, how did they --
Ian W. Outerbridge: They are biological specimen Mr. Justice White.
Byron R. White: Biological specimen?
Ian W. Outerbridge: Preserved in alcohol.
Byron R. White: And they now tested them?
Ian W. Outerbridge: They’ve tested them and found mercury present in the flesh of those fish in the quantities that I gave the Court.
Byron R. White: So, those are recent test of this?
Ian W. Outerbridge: Recent test. This was reported in the Washington post article of December 28. Thirdly, the IJC reports that the major source of pollution generally of Lake Erie is the Detroit River and the second largest source of pollution of Lake Erie is reported by the International Joint Commission as being the State of Ohio itself. Thirdly, the International Joint Commission, this most recent report, discusses mercury pollution but in particular it touches a first priority to phosphorus pollution. And it estimates the cause that something in the order of $2 billion and urges that both the Governments of Canada and United States commence immediately to clean up Lake Erie and to remove the phosphorus. This report has been universally well received in Canada or acting Prime Minister Mr. Sharp has committed his Government to implementing the report. Mr. William P. Rogers, your Government has indicated and this quoted as saying that he has initiated follow-up action in a most urgent way. There are technological limitations to the association of mercury pollution short of shutting the plants completely and abandoning them as was the alternative selected by Wyandotte. And the fact of this exister set out in the appendices to the brief in reply. But by way of comparison, the Court should examine the record file with respect to Detrex Chemical Industries Incorporated of Ashville, Ohio. Now, this is a company engaged in the same business as my client’s. Under a cease and desist order of April 13, 1970 by the Government of the State of Ohio, in the material before the Court indicates that on May 11, 1970 and that's the last report we have, after the operational changes in that plant have been completed. Short of shutting that plant down, their escape was 1.2 pounds per day which escape, I tell the Court, is greater than the escape continuing from my client’s plant in this argument which is less than a pound a day. And if the Court would look at the draft regulations of the Department of Fisheries and Forestry of the Government of Canada proposed to be introduced when the Government resumes to observe that the Government of Canada recognizes a technological limitation to the ability of mankind to shut off the flow of mercury from this type of an operation, short of shutting down the plant. Appendix 5 filed that the brief in reply is a list of eight companies provided by your Government upon our request is being known to have discharged mercury in Lake Erie and there are eight that have listed and I would point out to the Court that Dow and my clients are not one of them or is not. Two of these are companies situate in the State of Pennsylvania, one of them is a company situate in the New York State, one of them is a company situate in Michigan and four of them are companies resident within the State of Ohio. One cannot refrain from reference to the dictum of Mr. Justice Holmes in Missouri and Illinois 1905 it’s at page 522 whereas here the plaintiff has sovereign powers and deliberately permits discharges similar to those of which he complains. It not only offers standard to which the defendant has the right to appeal, but it warrants the defendant in demanding the strict disproof that the plaintiff’s own conduct does not produce the result. I would like to comment with respect to Mr. --
Hugo L. Black: May I ask you what -- how that applies?
Ian W. Outerbridge: How that applies?
Hugo L. Black: Yes.
Ian W. Outerbridge: It is my submission to the Court that the State of Ohio can legislatively and can administratively and can judicially take action against the polluters with its all jurisdiction and if they do, then the standard that they adopt with respect to their own polluters becomes the standard that we can comply with and I would say to the Court that we comply with the standard which is much higher than the standard which the State of Ohio expects of its own residents and citizens. I would like to make one comment with respect to the brief of the Solicitor General. Reliance is placed by the Solicitor General on a case of U.S. versus Aluminum Company of America and he also fairly mentioned the two cases to the Court Vanity Fair Mills and T. Eaton Company and Steele and Bulova Watch. It’s my respectful submission that when these cases are examined carefully the only two cases which are governing the problem we’re confronted with is the Steele and Bulova Watch case as amplified and explained in Vanity Fair and T. Eaton Company. Because in the Vanity Fair case, you’re dealing with precisely the situation we have here of a non-resident, citizen of a foreign country carrying on conduct in that foreign country subject to and regulated by the governments of that foreign country and the conduct is conduct which is approved of by that foreign county. Now, by that I'm not suggesting to the Court that my Government approves pollution. I am saying to the Court however, that my Government -- the Government which regulates the company that I represent has enacted regulations and has an effective organization called the Interior Water Resources Commission which regulates examines, tests samples and has approved of the quality of the effluent escaping from the plant in Sarnia. And in those cases, the principle would appear to be that if the order of the Court is one which would infringe upon the sovereignty of foreign sovereign, then injunctive relief are not to be granted and the Court has no jurisdiction to entertain injunctive relief. Now, I do not quarrel with the proposition of the law of Ohio, may apply with respect to an action for damages that remarks directed solely to the action that is sought to be maintained for an injunction and for mandatory injunction. There is a second principle --
Hugo L. Black: Can I ask you, do you mean that if what was being done in Canada undoubtedly abuse the waters, it made life changes for people in the United States that this country would have no power to enjoin?
Ian W. Outerbridge: I would say Mr. Justice Black that the action would be one which should take place between two sovereigns and short of making war, there's no way in which the courts can enforce the injunction.
Hugo L. Black: Are you talking then about the enforcing that?
Ian W. Outerbridge: I'm simply stating as a matter of principle that if the resident -- if a national of a foreign sovereign and as resident in the other country and if the order of the Court would infringe upon by that be I submit in conflict with for example if the courts of Ontario were to say that as a matter of necessity it was an importance to them that the industrial complex in Sarnia be maintained because of the labor forces that would be employed there. And they said that it could go on and must go on, then there would be a clear conflict and that is something which should be resolved diplomatically and not by judicial action.
Hugo L. Black: And nothing would be done even though people would be killed?
Ian W. Outerbridge: Well, nothing is a rather exclusive word.
Hugo L. Black: I’m assuming -- just assuming.
Ian W. Outerbridge: I would respectfully submit that the proper course would be to resort to diplomatic action between the two countries long before anybody be -- is killed.
Hugo L. Black: I gather, it would be the only jurisdiction, you think it would exist?
Ian W. Outerbridge: I believe that is the state of the authorities.
Warren E. Burger: I suppose that’s another way of saying that the Court has no jurisdiction can enter in an injunction, is that your point?
Ian W. Outerbridge: Yes, and I’d like to come to that further Mr. Chief Justice. There are line of cases that say that this Court ought not to assume original jurisdiction in the cases where indispensable parties cannot be brought before this Court. And to adjudicate on the issues presented is my respectful submission that there are number of indispensable parties who cannot be brought before the Court. My respectful submission that the residents of the State Ohio cannot be brought before this Court constitutionally, that is the four companies who have known to be polluters. With my respectful submission that the problem of Ontario and the Government of Canada are also indispensable parties because anyone who’s going to tamper with the ecology of Lake Erie must have authority or jurisdiction to bind all of the people who are going to be concerned. And because these people are indispensable parties on the authority of the Minnesota and Northern Security case and Arizona and California case, this Court ought to decline jurisdiction because people who are indispensable to the orders which this Court must make cannot be brought before the Court.
William O. Douglas: Would the International Court of Justice have a jurisdiction in the dispute of the United States and Canada on this matter?
Ian W. Outerbridge: I'm sorry I cannot answer Your Honor’s question. I would say this to you Mr. Justice Douglas that the matter is -- in my respectful submission govern by the International Joint Commission and the proper source and proper course should be to resort to the International Joint Commission. It is my respectful submission that basic to this case is only one real issue and that is whether or not the legislative jurisdictions -- your Government and my Government, the Governments of the countries, the Government of the States, the provinces whether they can avoid to come into grips with their real responsibility which is to adjudicate and legislate and make decisions with respect to pollution. Now, they have responsibility and they’ve got ample powers. Their powers are as greater than this Court in terms of the Executive power. They have administrative capacities well beyond the administrative capacity of this Court and they are the ones that should be doing the job. But instead in this action we are in a situation where the State of Ohio and the State of Michigan are, if I may respectfully submit, really shirking their responsibilities and seeking to force that responsibility under the Court. If the Court accepts responsibility and if the Court assumes jurisdiction, the effect, in my respectful submission, is to consign the whole problem of pollution in Lake Erie which is a very urgent problem with the International Joint Commission urges be undertaken immediately. It’s to consign that whole problem to the judicial process.
Byron R. White: Mr. Outerbridge, I take it under your submission if Ohio proceeded against one of its own companies to keep it from polluting Lake Erie that there would be some indispensable parties in that action namely the Government of Canada and Ontario wouldn’t be the same -- wouldn’t you have the same problem there, anyone who tampers at Lake Eire is immediately concerning a foreign government?
Ian W. Outerbridge: Mr. Justice White, I think you're right with this submission I would make to you.( Voice Overlap) I beg your pardon.
Byron R. White: The question is whether you're right?[Laughter]
Ian W. Outerbridge: The submission I made to you is that the process -- it’s totally impossible to enjoin one polluter if you don’t enjoin them all.
Byron R. White: So, in Ohio --
Ian W. Outerbridge: They must all be before the Court.
Byron R. White: So that Ohio would be completely without power to move against one of the companies in Ohio which is polluting like here?
Ian W. Outerbridge: No, with respect you can move for a simple injunction with respect to anyone of these companies, in any jurisdiction. You could come into Ontario --
Byron R. White: Including your company?
Ian W. Outerbridge: Yes, and Ontario, you could enjoin Ontario in Ontario, you could enjoin any company in Ohio in Ohio, you could enjoin any company in Michigan in Michigan. The problem is with respect to the remedial situation whose going to dig it up and how is it going to be done.
Byron R. White: So, the injunction side of this case, your argument does not go to the injunction side of the case in terms of indispensable party?
Ian W. Outerbridge: Indispensable parties, they are indispensable to the remedial --
Byron R. White: But not to the injunction?
Ian W. Outerbridge: Not to the prohibitory injunction.
Byron R. White: That’s rather significant course.
Ian W. Outerbridge: Not to the prohibitory injunction except if I may just add this that there is no point in making a mandatory order if you can’t stop.
Byron R. White: I understand. Thank you.
Ian W. Outerbridge: Thank you, Mr. Justice.
Warren E. Burger: Thank you Mr. Outerbridge. Mr. McNeal.
Harley J. McNeal: Mr. Chief Justice, members of the Court. In our view in the light of the present knowledge and expertise concerning mercury pollution in Lake Erie, it is respectfully suggested Ohio’s proposed litigation is premature and may very well be ill-advised because of the posture in which the complaint comes to this Court. With about three defendants, when as my brothers have stated there are many known polluters of Lake Erie. Mercury polluters, Municipal Government polluters, sewage, phosphates almost innumerable number including other chemicals which are now by reason of expertise being found to be also polluters. So, in the Court’s discretion, which I believe this Court has in this case in considering the issues raised by the complaint. I believe with but three defendants, one being a foreign alien this Court would be proper and right and just in refusing to entertain Ohio’s complaint on the basis that complaint involves not only the judiciary but it also involves the political sides of our Government. Namely the executive and the legislative branches so that in the exercise of this Court’s jurisdiction, it is believe that this Court should examine carefully whether the complaint of Ohio on its phase demonstrates whether there is or is not a lack of satisfactory criteria which would enable this Court in the posture in which complaint comes to make a binding judicial determination which would be determinant of the problem of mercury pollution in the Great Lakes particularly Lake Erie. When we know New York, Pennsylvania, Michigan and Ontario also are interested in Lake Erie and its pollution. It seems very difficult for me to understand how this Court with the power that it has would be able to legislate or make a judicial finding which would satisfy Ohio in so far as Ohio’s common law is concerned leaving open a judicial determination of the rights and interests of the other states and that of Ontario. Further, I believe this Court in exercising its jurisdiction and discretion should ascertain whether there are alternative forums available which could by reason of their structure reach a better determination in the long run and over a long period of time than the narrow kind finds of a judicial decree in the posture that pollution now is. With the state of expertise and the present knowledge that we have concerning pollution and the number of pollutants and the people involved. I say this because to me it is most important that this Court consider that provisions of the Boundary Waters Treaty of 1909 which was proclaimed by the two Governments wherein it was stated generally that in so far as Canada and the United States would be concerned pollution of the boundary waters which occurred on one side of the boundary of the other which resulted in harm to the inhabitants of the other side would be determined by means of an International Joint Commission and the history of what the International Joint Commission has done concerning investigation of pollution I believe is most important. Beginning in 1918, the International Joint Commission handed down a report wherein in that report the International Joint Commission was required to investigate the extent, causes and where the boundary waters were polluted so as to be injurious to public health and unfit for domestic and other users. In the 1918 report, the International Joint Commission concluded at that time that pollution was very intense along the shores of the Detroit and Niagara Rivers and that a condition existed which would impair the health and excellence and welfare of the citizens. Now, what have the two Governments done since 1918? By two joint references, the executive branches of two Governments have referred the problem of pollution to the International Joint Commission under the Boundary Waters Treaty. In 1946, both Governments requested the International Joint Commission to investigate pollution problems in the St. Mary, St. Clair, Detroit and Niagara Rivers. And in 1950, the International Joint Commission reported certain water quality of objectives to restore and maintain the waters which they were requested to investigate.
Byron R. White: Mr. McNeal, with what result?
Harley J. McNeal: The two Governments approved the recommendations and this resulted in pollution abatement programs being set up by various enforcement agencies in Canada and in the United States. Now, as late as October of 1964, by another joint reference to the International Joint Commission the executive branches of the two Governments referred an investigation of the waters of Lake Erie and so far as pollution is concerned. And by my brother Mr. Outerbridge, you have heard him state that the report concerning the investigation of pollution of the waters of Lake Erie was filed by the State Department wherein the International Joint Commission reported and I think it is helpful to summarize what the International Joint Commission found and reported through the State Department of the United States which filed the report. The International Joint Commission found that until 1968, mercury was thought to be very stable that it could not be established with certainty that the concentration of a particular pollutant on one side of the boundary is due to any specific source on the other side. Contaminants from both sides of the boundary are affecting and degrading the water qualities of Lake Erie. In order to achieve effective pollution control, the laws of the Governments interested in Lake Erie’s pollution problems must be coordinated to avoid in action and inconsistency. The economic cause and social consequences of the pollution problem will be our most difficult one to assess. The International Joint Commission also said studies are necessary to find solutions to the legislative legal and enforcement problems related to curtailing and eliminating the sources of pollution. The solution of such social problems may well prove as difficult and time-consuming as the solution of all of the scientific and technical problems involved. This brings me to my point, this Court exercising its discretion. In as much as there has been no emergency, in so far as Ohio is concerned because Ohio within 10 days after it declared a fishing ban lifted that fishing ban. The only species of fish which may not be commercially fished today is the walleye type. The ban went into effect April 10th in 1970 and I believe as to most other fish was lifted on April 22nd or thereabouts 1970 so that the commercial fish men who were unable to commercially fished and sell fish were held up for a matter of 10 days. The inhabitants of Ohio are not advised not to buy fish. The commercial fishermen may sell fish and things are going on in so far as the taking of fish from Lake Erie as they did before. Now, why is this? Because at least in the newspaper reports it was found that 87% of the fish that were banned indicating that they were commercially unfit within 10 days after Ohio had put a ban on commercial fishing were found to be well below the dangerous level of metal mercury which was said to be toxic in so far as humans are concerned. So that my point is that if there is no emergency in so far as Ohio’s position is concerned, this Court exercising its discretion may well refuse to entertain Ohio’s complaint because Ohio has a basis whereby it may bring exception in the Court of Common Pleas in Ohio. It may resort to the International Joint Commission and contrary to what my brother has Mr. Strauss has said. I believe under Article II of the Boundary Waters Treaty which reads, “The exclusive jurisdiction and control of the use and diversion whether temporary or permanent of all waters on each side of the line which in the natural channels would flow across the boundary or enter the boundary waters are reserve to that nation. And that if there is some damage or resulting in any injury on the other side of the boundary that nation which causes the condition shall give rise to the same rights and entitle the injured parties to the same legal remedies as if the entry took place in the country in Canada. So that I say, in my interpretation of Article II that Ohio has the right to use the good offices of the Ontario courts to present this problem if they want to get at Dow Canada. They have the right to sue in their own jurisdiction in the Court of Common Pleas in Ohio and under the treaty Ohio has the perfect vehicle to have an adjudication. My brother Mr. Strauss also said that they also said that under the treaty that no powers of arbitration yet in the Trail Smelter case which is the Landmark case involving pollution where a company in Canada was polluting the air in the State of Washington. The two nations, Canada and the United States referred the problem to the International Joint Commission. The International Joint Commission took testimony, learned about the issues and reported back to the two Governments with recommendations. As a result of that investigation and the hearings that were had it was decided that a commission would be chosen a tribunal appointed and that tribunal proceeded to find liability and to assess damages. These was all done under the Boundary Waters Treaty and under Article X of the Boundary Waters Treaty, it is provided that where there is a dispute between the United States and Canada, the high contracting parties may refer the matter to an umpire chosen in accordance with the proceedings proscribed in the fourth, fifth and sixth paragraphs of the Haig Convention. For the pacific settlement of international disputes such umpire shall have the power to render a final decision with respect to those matters and questions so referred on which the Commission shall fail to agree. So that there is built-in to the Boundary Waters Treaty -- a provision whereby if the International Joint Commission so recommends to the two nations that there be a finding of fault and a determination of liability. This can be accomplished under the terms and provisions of the Boundary Waters Treaty.
Speaker: How does the Ohio treat their action by the Commission?
Harley J. McNeal: Consulting the State Department, requesting of the State Department that there is a problem involving pollution of Lake Erie which they believe it comes within the terms and provisions of the Boundary Waters Treaty which will then enable the State Department and the Executive of Department of Canada to consult on the matter and if they come to an agreement refer to the International Joint Commission which in turn will handle the matter to a conclusion. And this has been done and the Landmark case is the Trail Smelter case to burden this Court with this kind of litigation which would be interminable by reason of the information that one has to acquire, the scientific knowledge that has to be presented, the witnesses who would have to be subpoenaed, who would have to appear would seem to me to be an improper forum. There are added matters which entitle this Court to give time to decide.
William J. Brennan, Jr.: Mr. McNeal --
Harley J. McNeal: Yes, Mr. Justice Brennan?
William J. Brennan, Jr.: I understood Mr. Strauss say that the Government’s position is that the treaty does not cover this problem, don’t you pose that’s a representation to us on behalf of the State Department?
Harley J. McNeal: I would only say Mr. Justice Brennan that I believe that the Boundary Waters Treaty is the very vehicle which had had this.
William J. Brennan, Jr.: Well, I know you do.
Harley J. McNeal: Yes, sir.
William J. Brennan, Jr.: But aren’t we in the position of having the -- in effect the State Department tell us that, no, they don’t agree?
Harley J. McNeal: Well, I think under -- I think it was an opinion Brady versus Carr which I believe Your Honor wrote that opinion. I believe it is proper for this Court where there is no Government action taken for this Court to examine whether or not the Boundary Waters Treaty provides the answer to this problem. And I believe that was the effect and the weight of what the opinion stated in Brady versus Carr.
Byron R. White: But you're suggesting that Ohio just go to the State Department -- State Department is where the answer will be while there really is no effective remedy under the treaty and we couldn’t get you on let’s say reading of the treaty (Voice Overlap) isn’t that a discouraging prospect for the State of Ohio?
Harley J. McNeal: Well, Mr. Justice White, I am somewhat at a lost to answer that because the State Department was the vehicle which filed this very report which was filed on January of 14th. So that I cannot conceive of the State Department becoming interested in the International Joint Commission’s report and yet saying that the International Joint Commission isn’t the proper vehicle to determine problems of pollution arising in Lake Erie. And it just doesn’t seem to fit under the circumstances. Thank you very much.
Hugo L. Black: May I ask one question?
Harley J. McNeal: Yes.
Hugo L. Black: Does the record show any identity of ownership or interest between the Dow Chemical Company of Canada and the Dow Chemical Company of United States?
Harley J. McNeal: Mr. Justice Black, the claim was made in the brief filed by Ohio that in as much as Dow Canada was a wholly-owned subsidiary that that then --
Hugo L. Black: Which one is the only wholly-owned subsidiary?
Harley J. McNeal: Dow Canada.
Hugo L. Black: Of Canada?
Harley J. McNeal: Yes. Dow U.S. owns all of the stock.
Hugo L. Black: Only on the subsidiary of Dow --
Harley J. McNeal: Of Dow U.S.
Hugo L. Black: (Voice Overlap) have to be of America?
Harley J. McNeal: Yes sir but we don’t think that the mere ownership of stock if the subsidiary --
Hugo L. Black: They own in Court.
Harley J. McNeal: They own all of the stock, but that is only one of the criteria --
Hugo L. Black: (Voice Overlap) they own it should the half?
Harley J. McNeal: No, I don’t believe so because Dow Canada is a separate entity. It has its own contracts --
Hugo L. Black: Section liberty it’s actually owned by the Dow Chemical Company of United States?
Harley J. McNeal: Well, they own the stock sir, but I --
Hugo L. Black: (Voice Overlaps)
Harley J. McNeal: But I won't concede that it becomes an agent of Dow U.S. because it is conducting its own business within the territory of Canada and has its own contracts and has its own board of directors and it has its own finances an furnishes the Dow balance sheet. Thank you very much.
Speaker: Now, in this stage, we have now record showing what the exact relationship is?
Harley J. McNeal: No sir, that would come --
Speaker: They got to bear allegations at that point.
Harley J. McNeal: That is correct Mr. Just Harlan.
Hugo L. Black: Can I ask you about the record, what does the record show?
Harley J. McNeal: There is no record Mr. Justice Black.
Hugo L. Black: What isn’t there a complaint?
Harley J. McNeal: There is a complaint which says --
Hugo L. Black: What did it show about that?
Harley J. McNeal: The allegation is that Dow Canada is a wholly-owned subsidiary of Dow U.S.
Hugo L. Black: So, we do have it in the record?
Harley J. McNeal: You have it in the complaint, yes sir.
Hugo L. Black: And it’s not denied for this purpose?
Harley J. McNeal: I can't deny it for this purpose. Thank you, sir.
Warren E. Burger: Thank you Mr. McNeal. Mr. Brown, you have about four minutes left.
Paul W. Brown: All of the directors of Dow Canada or substantially all of the directors of Dow Canada live at Midland, Michigan. So this is another tie. The Trail Smelter case took 11 years. It was not under the commission that reference -- to which reference is made, it was under a special commission and during that 11 years the Trail Smelter continued to pour sulfur by the ton into the atmosphere of the complaining state for the entire 11 years. Now, my opponent have suggested that Ontario, Canada is satisfied with the progress that's being made to date by Dow Company of Canada and I say to you that I have a letter January 12th here written by the general counsel for the Ontario Water Resources to Michigan --
Warren E. Burger: Is this in the record counsel?
Paul W. Brown: Sir?
Warren E. Burger: Is this in the record?
Paul W. Brown: Well, we it in the record the reference to the report of the commission indicating that Dow of Canada was satisfied with the progress and I merely want to respond to that that they are not.
Warren E. Burger: I take that that's a report which we can judicially notice but if you have a letter from someone that is not within the scope of judicial notice. I would question its appropriateness here?
Paul W. Brown: I'm sorry. I will say that much of what has been said is factual and if we get to the factual part of this case, we will prevail the fish to which reference was made which contained mercury can be explain factually. The entire factual background of location of fish, content of mercury, its poisonous quality and characteristics whether or not they were known or should’ve been known, all can be thoroughly covered and I have it and I'm ready to present. The case is being well prepared. Ohio wants the opportunity factually to give this case to this Court. It is a big case, it deserves a big court. These men desperately want to avoid as polluters being brought before this Court. I say to you that all of the resources of the State of Ohio that can be brought to bear upon preparation of this case factually are already meshed and proceeding and it will be presented. A master can do find job of it if all we got from this Court ultimately into decree where a final order barring any further pollution of mercury it would be a fine thing. And if you added to that money damages to punish these polluters for putting into the Great Lakes water this deadly poison which is not an ordinary pollution, we would’ve accomplish something which would be a deterrent for all other polluters. I say to you they are still polluting, I say to you the pollutant -- the mercury that they put into the lake still being acted upon by biological forces which are making it more and more deadly. And I say there is an emergency that will not occasion too much difficulty and a master could well handle this matter. Thank you.
Warren E. Burger: Thank you Mr. Brown. Thank you gentlemen. The case is submitted.