OHIO v. WYANDOTTE CHEMICALS CORP. ET AL.
No. 41, Orig.
SUPREME COURT OF THE UNITED STATES
Argued January 18, 1971—Decided March 23, 1971
401 U.S. 493
Paul W. Brown, Attorney General of Ohio, argued the cause and filed a brief for plaintiff.
John M. Moelmann argued the cause for defendant Wyandotte Chemicals Corp. With him on the briefs were Thomas J. Weithers and Milton F. Mallender. Ian W. Outerbridge, by special leave of Court, argued the cause for defendant Dow Chemical Co. of Canada, Ltd. With him on the briefs was Richard W. Galiher. Harley J. McNeal argued the cause and filed briefs for defendant Dow Chemical Co.
Peter L. Strauss argued the cause for the United States as amicus curiae. With him on the brief were Solicitor
Frank J. Kelley, Attorney General, Robert E. Derengoski, Solicitor General, and M. Robert Carr, Assistant Attorney General, filed a brief for the State of Michigan as amicus curiae.
MR. JUSTICE HARLAN delivered the opinion of the Court.
By motion for leave to file a bill of complaint, Ohio seeks to invoke this Court‘s original jurisdiction. Because of the importance and unusual character of the issues tendered we set the matter for oral argument, inviting the Solicitor General to participate and to file a brief on behalf of the United States, as amicus curiae. For reasons that follow we deny the motion for leave to file.
The action, for abatement of a nuisance, is brought on behalf of the State and its citizens, and names as defendants Wyandotte Chemicals Corp. (Wyandotte), Dow Chemical Co. (Dow America), and Dow Chemical Company of Canada, Ltd. (Dow Canada). Wyandotte is incorporated in Michigan and maintains its principal office and place of business there. Dow America is incorporated in Delaware, has its principal office and place of business in Michigan, and owns all the stock of Dow Canada. Dow Canada is incorporated, and does business, in Ontario. A majority of Dow Canada‘s directors are residents of the United States.
The complaint alleges that Dow Canada and Wyandotte have each dumped mercury into streams whose courses ultimately reach Lake Erie, thus contaminating and polluting that lake‘s waters, vegetation, fish, and wildlife, and that Dow America is jointly responsible for the acts of its foreign subsidiary. Assuming the State‘s
Original jurisdiction is said to be conferred on this Court by
While we consider that Ohio‘s complaint does state a cause of action that falls within the compass of our original jurisdiction, we have concluded that this Court should nevertheless decline to exercise that jurisdiction.
I
That we have jurisdiction seems clear enough.1 Beyond doubt, the complaint on its face reveals the existence of a
Ordinarily, the foregoing would suffice to settle the issue presently under consideration: whether Ohio should be granted leave to file its complaint. For it is a time-
As our social system has grown more complex, the States have increasingly become enmeshed in a multitude of disputes with persons living outside their borders. Consider, for example, the frequency with which States and nonresidents clash over the application of state laws concerning taxes, motor vehicles, decedents’ estates, business torts, government contracts, and so forth. It would, indeed, be anomalous were this Court to be held out as a potential principal forum for settling such controversies. The simultaneous development of “long-arm jurisdiction” means, in most instances, that no necessity impels us to perform such a role. And the evolution of this Court‘s responsibilities in the American legal system has brought matters to a point where much would be sacrificed, and little gained, by our exercising original jurisdiction over issues bottomed on local law. This Court‘s paramount responsibilities to the national system lie almost without exception in the domain of federal law. As the impact on the social structure of federal common, statutory, and constitutional law has expanded, our attention has necessarily been drawn more and more to such matters. We have no claim
This Court is, moreover, structured to perform as an appellate tribunal, ill-equipped for the task of factfinding and so forced, in original cases, awkwardly to play the role of factfinder without actually presiding over the introduction of evidence. Nor is the problem merely our lack of qualifications for many of these tasks potentially within the purview of our original jurisdiction; it is compounded by the fact that for every case in which we might be called upon to determine the facts and apply unfamiliar legal norms we would unavoidably be reducing the attention we could give to those matters of federal law and national import as to which we are the primary overseers.
Thus, we think it apparent that we must recognize “the need [for] the exercise of a sound discretion in order to protect this Court from an abuse of the opportunity to resort to its original jurisdiction in the enforcement by States of claims against citizens of other States.” Massachusetts v. Missouri, 308 U. S. 1, 19 (1939), opinion of Chief Justice Hughes. See also Georgia v. Pennsylvania R. Co., 324 U. S. 439, 464-465 (1945), and id., at 469-471 (dissenting opinion).3 We believe, however, that
Thus, at this stage we go no further than to hold that, as a general matter, we may decline to entertain a complaint brought by a State against the citizens of another State or country only where we can say with assurance that (1) declination of jurisdiction would not disserve any of the principal policies underlying the
II
In applying this analysis to the facts here presented, we believe that the wiser course is to deny Ohio‘s motion for leave to file its complaint.
Two principles seem primarily to have underlain conferring upon this Court original jurisdiction over cases and controversies between a State and citizens of another State or country. The first was the belief that no State should be compelled to resort to the tribunals of other States for redress, since parochial factors might often lead to the appearance, if not the reality, of partiality to one‘s own. Chisholm v. Georgia, 2 Dall. 419, 475-476 (1793); Wisconsin v. Pelican Ins. Co., 127 U. S., at 289. The second was that a State, needing an alternative forum, of necessity had to resort to this Court in order to obtain a tribunal competent to exercise jurisdiction over the acts of nonresidents of the aggrieved State.
Neither of these policies is, we think, implicated in this lawsuit. The courts of Ohio, under modern principles of the scope of subject matter and in personam jurisdiction, have a claim as compelling as any that can be made out for this Court to exercise jurisdiction to adjudicate the instant controversy, and they would decide it under the same common law of nuisance upon which our determination would have to rest. In essence, the State has charged Dow Canada and Wyandotte with the commission of acts, albeit beyond Ohio‘s territorial boundaries, that have produced and, it is said, continue to produce disastrous effects within Ohio‘s own domain. While this Court, and doubtless Canadian courts, if called upon to assess the validity of any decree rendered against either Dow Canada or Wyandotte, would be alert to ascertain whether the judgment rested upon an even-handed application of justice, it is unlikely that we would totally deny Ohio‘s competence to act if the allegations made here are proved true. See, e. g., International Shoe Co. v. Washington, 326 U. S. 310 (1945);
B
Our reasons for thinking that, as a practical matter, it would be inappropriate for this Court to attempt to adjudicate the issues Ohio seeks to present are several. History reveals that the course of this Court‘s prior efforts to settle disputes regarding interstate air and water pollution has been anything but smooth. In Missouri v. Illinois, 200 U. S. 496, 520-522 (1906), Justice Holmes was at pains to underscore the great difficulty that the Court faced in attempting to pronounce a suitable general rule of law to govern such controversies. The solution finally grasped was to saddle the party seeking relief with an unusually high standard of proof and the Court with the duty of applying only legal principles “which [it] is prepared deliberately to maintain against all considerations on the other side,” id., at 521, an accommodation which, in cases of this kind, the Court has found necessary to maintain ever since.4 See, e. g.,
“We cannot withhold the suggestion, inspired by the consideration of this case, that the grave problem of sewage disposal presented by the large and growing populations living on the shores of New York Bay is one more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the States so vitally interested in it than by proceedings in any court however constituted.”
The difficulties that ordinarily beset such cases are severely compounded by the particular setting in which this controversy has reached us. For example, the parties have informed us, without contradiction, that a number of official bodies are already actively involved in regulating the conduct complained of here. A Michigan circuit court has enjoined Wyandotte from operating its mercury cell process without judicial authorization. The company is, moreover, currently utilizing a recycling process specifically approved by the Michigan Water Resources Commission and remains subject to the continued scrutiny of that agency. Dow Canada reports monthly to the Ontario Water Resources Commission on its compliance with the commission‘s order prohibiting the company from passing any mercury into the environment.
Additionally, Ohio and Michigan are both participants in the Lake Erie Enforcement Conference, convened a year ago by the Secretary of the Interior pursuant to the Federal Water Pollution Control Act, 62 Stat. 1155,
In view of all this, granting Ohio‘s motion for leave to file would, in effect, commit this Court‘s resources to the task of trying to settle a small piece of a much larger problem that many competent adjudicatory and conciliatory bodies are actively grappling with on a more practical basis.
The nature of the case Ohio brings here is equally disconcerting. It can fairly be said that what is in dispute is not so much the law as the facts. And the factfinding process we are asked to undertake is, to say the least, formidable. We already know, just from what has been placed before us on this motion, that Lake Erie suffers from several sources of pollution other than mercury; that the scientific conclusion that mercury is a serious water pollutant is a novel one; that whether and to what extent the existence of mercury in natural waters can safely or reasonably be tolerated is a question for which there is presently no firm answer; and that virtually no published research is available describing
Finally, in what has been said it is vitally important to stress that we are not called upon by this lawsuit to resolve difficult or important problems of federal law and that nothing in Ohio‘s complaint distinguishes it from any one of a host of such actions that might, with equal justification, be commenced in this Court. Thus, entertaining this complaint not only would fail to serve those responsibilities we are principally charged with, but could well pave the way for putting this Court into a quandary whereby we must opt either to pick and choose arbitrarily among similarly situated litigants or to devote truly enormous portions of our energies to such matters.
To sum up, this Court has found even the simplest sort of interstate pollution case an extremely awkward vehicle to manage. And this case is an extraordinarily complex one both because of the novel scientific issues of
III
What has been said here cannot, of course, be taken as denigrating in the slightest the public importance of the underlying problem Ohio would have us tackle. Reversing the increasing contamination of our environment is manifestly a matter of fundamental import and utmost urgency. What is dealt with above are only considerations respecting the appropriate role this Court can assume in efforts to eradicate such environmental blights. We mean only to suggest that our competence is necessarily limited, not that our concern should be kept within narrow bounds.
Ohio‘s motion for leave to file its complaint is denied without prejudice to its right to commence other appropriate judicial proceedings.
It is so ordered.
MR. JUSTICE DOUGLAS, dissenting.
The complaint in this case presents basically a classic type of case congenial to our original jurisdiction. It is
“It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.” Id., at 238.
Dumping of sewage in an interstate stream, Missouri v. Illinois, 200 U. S. 496, or towing garbage to sea only to have the tides carry it to a State‘s beaches, New Jersey v. New York City, 283 U. S. 473, have presented analogous situations which the Court has entertained in suits invoking our original jurisdiction. The pollution of Lake Erie or its tributaries by the discharge of mercury or compounds thereof, if proved, certainly creates a public nuisance of a seriousness and magnitude which a State by our historic standards may prosecute or pursue as parens patriae.
The suit is not precluded by the Boundary Waters Treaty of 1909, 36 Stat. 2448. Article IV provides that the “boundary waters . . . shall not be polluted on either side to the injury of health or property on the other.” But there is no machinery for direct enforcement of Art. IV.
Article VIII empowers the International Joint Commission to “pass upon all cases involving the use or obstruction or diversion of the waters with respect to which under Articles III and IV . . . the approval of this Commission is required.” Those Articles specifically describe the type of projects for which approval is required. For
Article X does vest the Commission with power to render binding decisions on matters referred by consent of both parties. But Art. X states that any joint reference “on the part of the United States . . . will be by and with the advice and consent of the Senate, and on the part of His Majesty‘s Government with the consent of the Governor General in Council.”
In other words, so far as pollution is concerned, the Treaty contains no provision for binding arbitration. Thus, it does not evince a purpose on the part of the national governments of the United States and Canada to exclude their States and Provinces from seeking other remedies for water pollution. Indeed, Congress in later addressing itself to water pollution in the Federal Water Pollution Control Act,
“Nothing in this chapter shall be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” (Emphasis added.)
This litigation, as it unfolds, will, of course, implicate much federal law. The case will deal with an important portion of the federal domain—the navigable streams and the navigable inland waters which are under the sovereignty of the Federal Government. It has been clear
Congress has enacted numerous laws reaching that domain. One of the most pervasive is the Rivers and Harbors Act of 1899, 30 Stat. 1121, as amended,
In the 1930‘s fish and wildlife legislation was enacted granting the Secretary of the Interior various heads of jurisdiction over the effects on fish and wildlife of “domestic sewage, mine, petroleum, and industrial wastes, erosion silt, and other polluting substances.” See, e. g.,
Since that time other changes have been made in the design of the federal system of water control. The Federal Water Pollution Control Act, as amended,
On December 23, 1970, the President issued an Executive Order2 which correlates the duties of the Corps of Engineers and the Administrator of the new Environmental Protection Agency under the foregoing statutes. Under that Executive Order the Corps in order “to regulate the discharge of pollutants and other refuse matter into the navigable waters of the United States or their tributaries” is directed after consultation with the Administrator to amend its regulations concerning issuance of permits. While the Corps is responsible for granting or denying permits, § 2 (a) (2), it must accept the findings of the Administrator respecting “water quality standards,” § 2 (a) (2) (A). On December 31, 1970, the Corps gave notice of its new proposed rules to govern discharges or deposits into navigable waters.3
Yet the federal scheme is not pre-emptive of state action. Section 1 (b) of the Water Pollution Control Act declares that the policy of Congress is “to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution.”
The new Environmental Quality Improvement Act of 1970, 84 Stat. 114,
There is much complaint that in spite of the arsenal of federal power little is being done.4 That, of course, is not our problem. But it is our concern that state action is not pre-empted by federal law. Under existing federal law, the States do indeed have primary responsibility for setting water quality standards; the federal agency only sets water quality standards for a State if the State defaults.
There is not a word in federal law that bars state action. If, however, defendants had a permit from the Corps to discharge mercury into federal waters, the question would be vastly different. But they do not, and so far as appears they are not under any federal process and are not parties to any federal proceedings. In light of the history of water pollution control efforts in this country it cannot be denied that a vast residual authority rests in the States. And there is no better established remedy in state law than authority to abate a nuisance.5
Much is made of the burdens and perplexities of these original actions. Some are complex, notably those involving water rights.
The apportionment of the waters of the Colorado between Arizona and California was a massive undertaking entailing a searching analysis by the Special Master, the Hon. Simon H. Rifkind. Our decision was based on the record made by him and on exceptions to his Report. Arizona v. California, 373 U. S. 546.
The apportionment of the waters of the North Platte River among Colorado, Wyoming, and Nebraska came to us in an original action in which we named as Special Master, Hon. Michael J. Doherty. We entered a complicated decree, which dissenters viewed with alarm, Nebraska v. Wyoming, 325 U. S. 589, but which has not demanded even an hour of the Court‘s time during the 26 years since it was entered.
If in these original actions we sat with a jury, as the Court once did,7 there would be powerful arguments for abstention in many cases. But the practice has been to appoint a Special Master which we certainly would do in this case. We could also appoint—or authorize the Special Master to retain—a panel of scientific advisers. The problems in this case are simple compared with those in the water cases discussed above. It is now known that metallic mercury deposited in water is often transformed into a dangerous chemical. This lawsuit would determine primarily the extent, if any, to which the defendants are contributing to that contamination at the present
The problem, though clothed in chemical secrecies, can be exposed by the experts. It would indeed be one of the simplest problems yet posed in the category of cases under the head of our original jurisdiction.
The Department of Justice in a detailed brief tells us there are no barriers in federal law to our assumption of jurisdiction.8 I can think of no case of more transcending public importance than this one.