Wopat, J. William, III

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review7-1-1971Supreme Court Declines Original Jurisdiction inLake Erie Pollution CaseJ. William Wopat IIIFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationJ. William Wopat III, Supreme Court Declines Original Jurisdiction in Lake Erie Pollution Case, 25 U. Miami L. Rev. 794 (1971)Available at: http://repository.law.miami.edu/umlr/vol25/iss4/13UNIVERSITY OF MIAMI LAW REVIEWstant case as a rejection of explicit and implicit racial classifications asstandards to invalidate state action on equal protection grounds, hewould not be entirely correct. The Court was clear in stating that thefacts of the principal case did not meet the requirements of either anexplicit or implicit racial classification.30 This clarity of expression bythe Court precludes misinterpretating this decision as a justification forcontinued enforcement of existing law which would otherwise be uncon-stitutional or interpreting the instant case as a license to frame laws thatperpetuate the ghetto.31GARY S. SORTORSUPREME COURT DECLINES ORIGINAL JURISDICTIONIN LAKE ERIE POLLUTION CASEAs water pollution problems continue to mount, citizens and statesare seeking effective remedies. The State of Ohio sought to invoke theoriginal jurisdiction of the United States Supreme Court in a complaintpraying for an injunction against three non-resident chemical companies,'located in Michigan and Canada, which had allegedly created a publicnuisance by dumping poisonous mercury into Lake Erie and its tribu-taries. The Supreme Court held, Ohio's motion for leave to file a bill ofcomplaint denied. Discretionary original jurisdiction was declined be-cause the issues were bottomed on local nuisance principles involving nofederal law. Furthermore, the majority of eight reasoned that even withthe aid of a court appointed special master, they would be ill equippedto act as a trial court. Several competent governmental agencies werealready involved in the problem of the pollution of Lake Erie, and, ifOhio still wishes to seek injunctive relief and damages, Ohio courts canobtain jurisdiction.' Ohio v. Wyandotte Chemicals Corp., 91 S. Ct. 1005(1971).30. James v. Valtierra, 91 S. Ct. 1331, 1333 (1971), where the Court noted that Califor-nia's article XXXIV does not rest on "distinctions based on race . . . [and that the record].. . would not support any claim that a law seemingly neutral on its face is in fact aimedat a racial minority."31. By this point in history it should be obvious that discrimination is a major causeof the problems facing ghetto inhabitants. See Comment, Decent Housing as a Constitutional-Right, 42 U.S.C. § 1893 Poor People's Remedy for Deprivation, 14 How. L.J. 338 (1968);Comment, Tenant Interest Representation: Proposal for a National Tenants' Association, 47T.x. L. Rav. 1160 (1969).1. The defendant companies were Wyandotte Chemicals Corporation, Dow ChemicalCompany, and Dow Chemical Company of Canada, Ltd.2. Justice Douglas filed a lone dissent, arguing a special master with the aid of a panelof scientific advisors could overcome the difficulties presented by the complex technicalfacts. Ohio v. Wyandotte Chemicals Corp., 91 S. Ct. 1005, 1013-17 (1971) [hereinafter citedas Wyandotte].[Vol. XXVCASES NOTEDArticle III, section 2 of the United States Constitution provides thatthe Supreme Court's jurisdiction "shall extend . . . to controversies be-tween a state and citizens of another state . . . and between a stateand foreign . . . citizens or subjects." Section 2, clause 2 further grants"original jurisdiction in all cases in which a state shall be a party," butthe United States Code specifically states such jurisdiction shall be"original but not exclusive."' 3 Since the Court's inception only 132 deci-sions have arisen through the operation of original jurisdiction. As theSupreme Court has evolved into primarily the final federal appellatecourt, the appearance of original jurisdiction has become extremely rare.4The grant of original jurisdiction has been traced to a desire by theframers of the Constitution to provide a forum for the adjustment of in-terstate differences5 without "the partiality, or suspicion of partiality,which might exist if the plaintiff State were compelled to resort to thecourts of the State of which the defendants were citizens." 6 An earlyview held that the sole criteria for invoking original jurisdiction was thenature of the parties." Later, the Court excluded cases with politicalovertones" and cases involving the enforcement of a state's penalstatutes.9The bulk of the Court's early litigation founded on original jurisdic-tion appears to have involved boundary squabbles.'" Then, in the earlypart of this century, several cases arose involving actions by states toabate nuisances originating in other states." Clear-cut limitations weresoon placed on the use of original jurisdiction, and the Court has con-sistently tightened these restrictions as its appellate docket has grown.A state seeking relief under original jurisdiction must generally averinjury to state proprietary interests in support of its motion for leave tofile a complaint."2 Apart from specific injury, a state may also sue as3. 28 U.S.C. § 1251(b) (1970).4. Only about two cases per term out of a docket of over 3,000 cases are founded onthe Court's original jurisdiction, and these have mostly been submerged lands disputes.See The Supreme Court, 1957 Term, 72 HARV. L. REV. 77, 98-109 (1958); The SupremeCourt, 1969 Term, 84 HAv. L. REV. 1, 247-55 (1970).5. Missouri v. Illinois, 180 U.S. 208 (1901); Georgia v. Pennsylvania R.R., 324 U.S.439 (1945).6. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 289 (1888).7. Chief Justice John Marshall wrote:If these be the parties, it is entirely unimportant, what may be the subject of con-troversy. Be it what it may, these parties have a constitutional right to come intothe courts of the Union.Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 378 (1821).8. Georgia v. Stanton, 73 U.S. (6 Wall.) 50 (1867); Mississippi v. Johnson, 71 U.S.(4 Wall.) 475 (1866).9. Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).10. Missouri v. Illinois, 180 U.S. 208 (1901) (dictum). See generally Note, The OriginalJurisdiction of the United States Supreme Court, 11 STaN. L. REV. 665 (1959).11. New Jersey v. City of New York, 283 U.S. 473 (1931); New York v. New Jersey,256 U.S. 296 (1921); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); Missouri v.Illinois, 180 U.S. 208 (1901).12. United States v. Minnesota, 270 U.S. 181 (1926) (bill to cancel patents issuedUNIVERSITY OF MIAMI LAW REVIEWparens patriae's if the state is a real and substantial party to the litiga-tion.14 In Missouri v. Illinois,15 Missouri sought to enjoin Illinois fromdischarging sewage into interstate waters. The Court held that Missouriwas a proper party to the suit since the health and comfort of its citi-zens was endangered and individual suits by citizens themselves wouldbe inadequate. This standard was extended in Georgia v. Tennessee Cop-per Co.'8 to necessitate a showing not only that the entire body of thecomplaining state's citizens be affected, but also that the citizens haveno remedy in another forum. If individual relief was impossible and thestate brought the suit, the Court demanded a high standard of proofof the nuisance since the acts complained of were usually those of asovereign state.' 7The high standard of proof requirement appears to be the first signof uneasiness with the use of original jurisdiction in interstate nuisanceabatement controversies. The aggrieved state in most of the nuisancedisputes has sought to achieve a solution through localized legal actionor conferences before resorting to the extraordinary remedy of an orig-inal jurisdiction suit. The Court has nonetheless continually underscoredits lack of competence in complex interstate trials:We cannot withhold the suggestion, inspired by the considera-tion of this case, that the grave problem of sewage disposalpresented by the large and growing populations living on theshores of New York Bay is one more likely to be wisely solvedby coiperative study and by conference and mutual concessionon the part of representatives of the States so vitally interestedin it than by proceedings in any court however constituted.'8Where possible, the Supreme Court has dismissed actions when an alter-native forum has been available.'In denying Ohio's motion for leave to file a bill of complaint, themajority's reasoning rested on the presence of a plethora of official bodiesalready investigating mercury contamination of Lake Erie. Although notlabelled as such, it seems as if the Wyandotte Court applied the equitableprinciple of declining jurisdiction in a case where not all availableremedies have been exhausted.under Swamp Lands Acts) ; Virginia v. West Virginia, 206 U.S. 290 (1907) (bill to accountfor a debt); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657 (1838) (bill to establisha boundary).13. "[Tlrustee, guardian or representative of all her citizens." Louisiana v. Texas, 176U.S. 1, 19 (1900). See also Note, 39 HARV. L. REV. 1084-88 (1926).14. Missouri v. Illinois, 180 U.S. 208 (1901).15. Id.16. 206 U.S. 230 (1906).17. Missouri v. Illinois, 180 U.S. 208 (1901) cited in Wyandotte at 1011.18. New York v. New Jersey, 256 U.S. 296, 313 (1921).19. Massachusetts v. Missouri, 308 U.S. 1 (1939), where a lower federal court hadjurisdiction to adjudicate a tax dispute. Prior to Wyandotte, the Court reluctantly acceptedinterstate nuisance cases.[Vol. XXVCASES NOTED-A *Michigan -court had enjoined Wyandotte from -discharging mer-cury into Lake Erie, and both Wyandotte and Dow Canada were underclose scrutiny by Michigan and Ontario water resource commissions.Additionally, Ohio and Michigan participated in a federal conferenceconcerning the pollution of the lake. Lake Erie is also subject to thesupervision of the International Joint Commission, established by theBoundary Waters Treaty of 1909, relating to the boundaries betweenthe United States and Canada.20 The existence of this myriad numberof agencies and other courts persuaded the reluctant Court to stay out ofthis already crowded sphere. Yet, as Justice Douglas' dissent indicated,many claim that little, if anything, was actually being accomplished bythese bodies.2 'Obviously there is a great need for a unified frontal approach towater pollution commensurate with the gravity of the problem in LakeErie. However, the Court clearly stated it had neither the time nor theexpertise to adjudicate pollution problems which are styled as publicnuisances. Paradoxically, an original jurisdiction suit could be the leasteffective method of cleaning up Lake Erie. Although Justice Douglasplaces great confidence in using a special master with scientific advisors,historically, final adjudication has been painfully slow in coming in suchcases: the final disposition in the New York v. New Jersey sewage dis-pute came thirteen years after the first papers were filed in Washington.22Thus, in the long run, the Court, by granting Ohio's motion to file a billof complaint, could have done more harm to Lake Erie by increasing ad-ministrative delays in finding a solution to the problem. Parenthetically,the time which the Court would spend on this problem would of necessityalso detract from the Court's "paramount role as the supreme federalappellate court.123The Court went to great length to draw attention to the "changesin the American legal system and the development of American society"2"'which have rendered original jurisdiction obsolete and which have pro-moted "the enhanced importance of our role as the final federal appel-late court.125 Evolutionary developments far beyond the purview of the20. Treaty with Great Britain relating to boundary waters between the United Statesand Canada, January 11, 1901, [1910] 36 Stat. 2448 (1911), T.S. No. 548.21. Polikoff, The Interlake Affair, 3 WASH. MONTHLY 7 (1971) cited in Wyandotteat 1015 n.4. On the subject of failure of federal conferences, see generally 1 CENTER FORSTuny Op RESPONSIVE LAW, WATER WASTELAND, ch. X, 5-41 (preliminary draft 1971) [here-inafter cited as WATER WASTELAND].* 22. 256 U.S. 296, 301 (1921). Part of the delay is due to the unusual nature of anoriginal suit: "even when the case is first referred to a master, [the] .. .Court has theduty of making an independent examination of the evidence, a time-consuming process .... "Georgia v. Pennsylvania R.R., 324 U.S. 439, 470 (1907) (Stone, C.J., dissenting). See alsoWyoming v. Colorado, 259 U.S. 419 (1922) (eleven years from filing of original bill torendition of decision).23. Wyandotte at 1013.24. id. at 1009.25. Id. at 1010.1971]UNIVERSITY OF MIAMI LAW REVIEWconstitutional framers have gradually forced the Court to take the posi-tion that it is an inappropriate body to hear trials involving no federalissues.As our social system has grown more complex, the States haveincreasingly become emeshed in a multitude of disputes withpersons living outside their borders. Consider, for example, thefrequency with which States and non-residents clash over theapplication of state laws concerning taxes, motor vehicles, de-decents' estates, business torts, government contracts and soforth. It would, indeed, be anomalous were this Court to be heldout as a potential forum for settling such controversies. 26John Marshall's broad view that the nature of the parties governs thegrant of original jurisdiction has slowly been eroded to the point reachedin Wyandotte where the Court stated that original jurisdiction "could...be justified only by the strictest necessity .... ,2" The subject matter ofthe suit was appropriate for adjudication; this forum was simply an in-appropriate place to adjudicate the subject matter.If Ohio still wishes to bypass the maze of agencies, commissions,and conferences, they can begin in Ohio courts. The majority noted thatoriginal jurisdiction was technically possible but that no concurrent juris-diction existed in the federal district courts.28 The Court added, however,that "under the modern principles of the scope of the subject matterand in personam jurisdiction, 2 9 Ohio's courts are competent to renderbinding judgments against non-resident defendants, including Dow Can-ada. The gravaman of Ohio's complaint was common law public nui-sance30 which should not present complicated conflict of law problems.Furthermore, applicable federal pollution statutes expressly provide thatstate action shall not be pre-empted.31Although the nuisance issues which the complaint presented areessentially local in nature, there is merit to Justice Douglas' contentionthat the solution to the problem will eventually involve federal law. Ohiomay find that basing the abatement action on public nuisance will prove26. Id. at 1009.27. Id. at 1013.28. The fact that there is diversity of citizenship among the parties would not sup-port district court jurisdiction under 28 U.S.C. § 1332 because that statute does notdeal with cases in which a State is a party. Nor would federal question jurisdictionexist under 28 U.S.C. § 1331 .... [An action such as this . . . would have to beadjudicated under state law.Wyandotte at 1010 n. 3. Contra, Texas v. Pankey, 441 F.2d 236 (10th Cir. 1971), where itwas held that a state's ecological rights constituted a question arising under the laws ofthe United States for determining whether a federal district court has jurisdiction under 28U.S.C. § 1331 (1970).29. Wyandotte at 1010-11. See International Shoe Co. v. Washington, 326 U.S. 310(1945) ; United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945) ; RESTATE-MENT (SEcoND) Or FOREIGN RELATIONS LAW OF UNITED STATES § 18 (1965).30. Wyandotte at 1016, citing 3 W. BLACKSTONE, COMMENTARIES 218.31. "Nothing in this chapter shall he construed as impairing or in any manner affectingany right or jurisdiction of the States with respect to the waters (including boundarywaters) of such States." 33 U.S.C. § 1151(c) (1970).[Vol. XXVCASES NOTEDto be an unwieldy vehicle. Ohio's first obstacle is the necessity of show-ing no adequate remedy at law to entitle it to equitable relief against thethree chemical manufacturers. The Court's indication of current, ongoingaction by the various state and federal agencies may prove fatal to Ohio'scase, regardless of the alleged ineffectiveness of the agencies. Second,Ohio's request for damages will present a momumental task of com-pensation determination. The defendant polluters undoubtedly will at-tempt to join as co-defendants other polluters of Lake Erie, a numberwhich conceivably could go as high as several hundred.32 The trialcourt would have to apportion damages in accordance with the relativeculpability of each polluter since, under Ohio law, there is no jointliability and one of the wrongdoers cannot be held liable for the entireamount of damages.83 If such a state of affairs does come about, Ohiomay have no choice but to reactivate the machinery of the Federal WaterPollution Control Act.84Ohio's apparent sense of desperation with Lake Erie's noxious con-dition35 occasioned its attempt to invoke original jurisdiction. A similarsense of desperation produced the Court's position that original jurisdic-tion is hopelessly obsolete and not the most efficacious approach to theproblem. The muddled prospects a nuisance suit faces in Ohio courtscould be as deleterious to Lake Erie as a ponderous Court using a specialmaster. Ohio could once again call for a federal conference on LakeErie, although the failure of the last meeting to produce any concreteresults seems to have only increased the sense of frustration leading tothe attempt to invoke original jurisdiction.8" The Court has completelyruled itself out as a trial court in this crucial area, and until federaland state officials begin to use existing remedies effectively, the futurefor Lake Erie in this regard, and the rest of the environment, is, at best,dim.J. WILLIAM WOPAT III32. 2 WATER WASTELAND, ch. XIV, 33.33. Mansfield v. Bristor, 76 Ohio St. 270, 81 N.E. 631 (1907).34. 33 U.S.C. § 1160(d) (1) (1970) provides:whenever requested by the Governor of any State or a State water pollution con-trol agency ... the Administrator shall, if such request refers to pollution of waterswhich is endangering the health or welfare of persons in a State other than that inwhich the discharge or discharges . . . originates . . . shall call promptly a confer-ence....35. Lake Erie is an example of an eutrophied lake. . . . Rotting masses of deadplant life float disgustingly upon the surface . . . some 500 centuries of its naturallife [have] disappear[ed] in less than 25 years under the strain of industrial, agri-cultural, and municipal pollution.1 WATER WASTELAND, ch. IV, 8; see also 1 WATER WASTELAND, ch. VI, 8; ch. IX, 2-3.36. Id. at ch. IX, 2-7. See also 2 WATER WASTELAND, ch. XI, 11-18. On the federalgovernment's failure to use the River and Harbors Act, 33 U.S.C. §§ 401-418 (1970), to curbthe pollution of Lake Erie, see 2 WATER WASTELAND, ch. XV, 19-20. President Nixon hasdiscouraged such action and has instituted a permit program for industry. Exec. Order No.11574, 3 C.F.R. 188 (1970). See also Permits For Discharges Of Deposits Into NavigableWaters, Proposed Policy, Practice, and Procedure, 35 Fed. Reg. 20005 (1970), 36 Fed. Reg.983 (1971). In any event, relatively few applications for permits have been received. 2 WATERWAT LAND, ch. XV, 2-3, 15-18.

Supreme Court Declines Original Jurisdiction in Lake Erie Pollution Case

https://repository.law.miami.edu/cgi/viewcontent.cgi?article=2841&amp;context=umlr

Supreme Court Declines Original Jurisdiction in Lake Erie Pollution Case

Abstract

Similar works

Full text

Available Versions

University of Miami School of Law