*1 defendant’s conviction of first de- death, gree and the sentence of murder aggravated rape

his conviction of sentence, The sentence

life are affirmed. day 26th

of death will be carried out on the June, 1986, stayed by appropriate unless against the

authority. adjudged Costs are

defendant. COOPER, JJ.,

FONES, HARBISON

concur.

BROCK, Justice, part Chief concurs part.

and dissents my the reasons stated in dissent in

For Dicks, (Tenn.1981), 615 S.W.2d 126 penalty

I would hold that the death is un- but,

constitutional; I in all other concur

respects. Tennessee, Word,

STATE James E.

Commissioner, Department Tennessee Environment, Health Agency,

Tennessee Wildlife Resources

Plaintiffs/Appellees,

CHAMPION INTERNATIONAL CORPO

RATION, Champion Papers, d/b/a

Defendant/Appellant. Tennessee,

Supreme Court of

at Nashville.

April *2 Warfield,

Charles Nashville, H. for de- appellant. fendant/ Scanlon, Frank J. Deputy Gen., Atty. Mi- Pearigen, chael D. (W.J. Asst. Atty. Gen. Cody, Michael Atty. Reporter, Gen. and counsel), plaintiffs-appellees. OPINION HARBISON, Justice.

Appellant operates paper mill at Can- ton, North discharges Carolina. chemi- cal wasté therefrom Pigeon into the River point at a several miles inside the borders of the State of North Carolina. Prior to 1981 it held permits valid from the State of North Carolina pursuant issued to and in conformity with the laws of that state as authorized the Federal Water Pollution (herein Control Act Amendments of 1972 “FWPCA”), 33 seq. Ap- 1251 et §§ pellant duly applied per- for renewal of its inmit proceedings administrative pend- reference to that renewal were present when brought action was July 1983.

In this action the State of Tennessee and certain of its environmental officials sought injunction penalties pur- and civil suant to Tennessee statutes and common law, alleging appel- that the effluent from plant polluted Pigeon lant’s had River through- below the out the course of the river in Tennessee. Both the Chancellor and the Court of Appeals held that this action could be main- tained and summary overruled a motion for judgment by appellant.1 filed The action brought in a Tennessee state court at Appellant qualified Nashville. is to do business in the State of Tennessee and large therein, owns tracts of land so that it generally the courts of the state. Appellant actually summary judgment pursuant filed a motion to dismiss treated as one for 12.02(1) pursuant sup- to T.R.C.P. In upon to Rule T.R.C.P. insofar as was based port an affidavit and detailed exhibits were 12.02(6). T.R.C.P. No or oth- counter affidavits filed, all of which were considered the courts opposing by appellees. er evidence was offered below, so that the motion should have been water, issues, public private, all

After consideration of the “... careful ground, the surface of the on or beneath we are of the that the motion for within, are contained flow summary judgment taken and was well through, or border Tennessee or Accordingly sustained. should have been any portion thereof....” reverse and dismiss. we private property. except water confined dispute There is no as to material *3 69-3-103(28). T.C.A. § question presented The facts. whether creates an administrative The statute may, under or not the state and its officials pertaining to agency numerous duties with authorities, controlling maintain an federal quality purity of waters within action local state courts under local law agency to issue state. This is authorized discharging a ef- holder companies dis- permits to individuals or waters, point fluent into interstate of charging effluent into state waters. discharge being outside the territorial agency The is autho- T.C.A. 69-3-108. § plaintiff. In our boundaries Adminis- cooperate closely rized to with the neither the federal statutes nor the state Pro- trator of the Federal Environmental upon by appellees statutes relied authorize agree- enter into Agency tection and “to such an action. and the United ments with other states complaint appellees In their invoke state prevention to and control of States relative jurisdiction pursuant to 69- court T.C.A. §§ 69- pollution in interstate waters.” T.C.A. 117(c) 3-115 and and T.C.A. 29-3-102. § 3-107(7)(B). The latter has to do of abatement by Discharge permits issued the Tennes public generally. nuisances The first two discharges specific from agency govern see portions sections are of the state “Water however, held, point It has been sources. Quality Act of 1977.” Control agencies operating that federal recogniz- The latter is a detailed statute not to the Tennessee dis state are that the waters of the state are held program pollution charge permit where public people and that the the state trust of discharge from the of an does not result right unpolluted a have to waters. One of source, from an effluent from a purposes the declared of the statute was to a the existence of other cause such as waters, existing pollution abate of state to Authority Valley Tennessee dam. See waters, polluted prevent reclaim to future Tennessee ex rel. T.V.A. v. United States pollution plan and to for future use of state Board, F.2d 717 Quality Control Water waters so that the water resources of the Cir.1983), denied, (6th cert. might enjoyed used be (1984). 1909, 80 L.Ed.2d 458 fullest extent consistent with the mainte- Quality Con- portions of the Water unpolluted nance of waters. brought this suit was trol Act under which specific purposes of the Act One of the of effluent penalties for violation authorize was: quality standards estab- standards or water qualify for “... to enable the state to Quality Board. lished the Water Control pollutant participation in the national full purporting nothing find in the statute We system established elimination impose pen- give authority Board 402 of the Federal Water under Section injunction against the alties or to seek an Act, Law 92- Pollution Control Public issued discharge permit holder of valid 69-3-102(c). T.C.A. 500.”2 Protec- Environmental § the United States appropriate adminis- Agency byor tion provides comprehensive The statute agency of another state. trative pollution the control of of scheme for statute state, the Tennessee being defined It is clear from the latter waters for Assembly intended the General as: U.S.C. 2. 33 participate fully

this state a national of Amendments 1251 et §§ program for control of seq. adopted and abatement United States Con- 69-3-105(h)(l) pollution. gress. T.C.A. states: Thereafter the Court of provisions the United States held that the “The board shall have and exercise the preempted of that statute power, duty, responsibility adopt, pollution water modify, repeal, and law interstate promulgate all eases. neces- Illinois, regulations sary pur- rules and pose establishing administering L.Ed.2d vacat- comprehensive permit program ed a decision of the United that will quality Appeals enable the for the division water con- Seventh Circuit which had department trol of the public contrary health to held to and which had autho- designated by the imposition United States envi- rized the stan- protection agency ronmental pollution autho- dards control under federal permits rized to issue required under national common law than those under the *4 pollutant discharge system elimination recent federal statute. by established 402 the Section of Federal opinion in Supreme While that the Court Act, Water Pollution Control Public Law did expressly of the United States not con- 92-500.” question sider the of whether one state clear the It is that state statutes confer impose regulations upon could its laws authority upon broad Tennessee officials to discharge in the holder of a another pollutants of discharge control within the state, shortly the of opin- after release its state, including any boundaries of the riv- petition ion it denied a for certiorari filed ers forming boundary. and streams such by specifically raising the State of Illinois discharge Where the lies in of anoth- Milwaukee, question. that 451 Illinois v. however, jurisdiction, er necessary it is 982, 2313, U.S. 101 68 L.Ed.2d 839 S.Ct. examine federal law and federal authorities (1981). may impose to determine whether the state remand, Upon case was its discharge law the holders of valid consolidated in the United States District permits issued the United States of Court for the Northern District Illinois government pursuant another state cases, litigation with two other and the authority granted by legislation. federal again Appeals of for the reached Court adoption 1972 Prior in Seventh Circuit. That court held that the FWPCA, Supreme Court of United precludes application of FWPCA one had gov indicated that state law statutory law to state’s law pollution naviga erned of interstate or liability remedy determine to afford Wyandotte ble v. waters. Ohio Chemicals discharges for another state. Illi 1005, 493, 3, 401 498 Corp., U.S. n. (7th Milwaukee, 731 F.2d 403 Cir. nois v. 1972, 3, (1971). In 1009 n. 28 L.Ed.2d 256 1984). of Thereafter Court however, shortly adoption before in the United States denied certiorari FWPCA, the held otherwise and Court had been case and the other cases which contrary its indication in the overruled Hammond, City consolidated with it. Scott v. case, supra. expressly held Wyandotte - -, 979, 105 83 U.S. S.Ct. law, than that federal common rather inter (1985). L.Ed.2d govern in actions to nal state must in in pollution

abate nuisances or control interpret foregoing authori We Milwaukee, waters. Illinois terstate legislation is ties to hold that 91, 3, 1385, 1392 n. 102 n. S.Ct. preemptive of both federal common law L.Ed.2d of control of and state law the area that envi Shortly opinion pollution interstate waters and after the release of the case, may not agencies of one state legislation the federal now ronmental permit holder take official action as the Federal Pollution Control Act known stringent requirements at the suit except by more from another state as authorized principles under of federal another state the federal statutes. stated, previously As common law. contrary au While there is some separate petition for later denied Court thority, are of the that this is we impose seeking to certiorari subject. It is clear the better view of the com- under the limitations seeking under the federal statutes that one state, complaining Illinois. mon law of the into interstate wa effluents to the FWPCA of With reference permit only need seek a in the state ters discharge originates, not in said: the Court where may affected

other states which enacting the Amend- “Congress’ intent discharge. Lake Erie Alliance See clearly ments to establish an all-en- Protection Coastal Corridor U.S. compassing program pollution of water F.Supp. Army Corp. Engineers, 526 point source dis- regulation. Every (W.D.Pa.1981), 707 F.2d 1392 by a charge prohibited aff'd unless covered (3rd Cir.1981), denied, 464 cert. permit, directly subjects the dis- (1983)); 78 L.Ed.2d 257 Com apparatus charger to the administrative Kentucky Stephens monwealth ex rel. by Congress to established achieve Commission, Regulatory v. U.S. Nuclear goals. ‘major purpose’ (D.C.Cir.1980). 626 F.2d 995 compre- was ‘to establish a Amendments long-range policy for the elimina- hensive authorities, these it is clear Under pollution.’ This tion of water ... appellant present in the case was not *5 obviously correct when it described required discharge permit to seek a from establishing Amendments as ‘a the 1972 the State of Tennessee for its North Car program controlling and mill, comprehensive though stream paper olina even City abating pollution.’ discharge emptied water Train into which the flowed York, 95 S.Ct. New after a course of several miles into of 839, The estab- Appellant Tennessee. has not 43 L.Ed.2d borders of Tennessee, self-consciously of such a com- applied permit for a from lishment Congress, program by of Ten which prehensive has not violated conditions permit. certainly nessee did not exist when Illinois v. decided, strongly sug- Milwaukee was appears that the contents of the ef- no for courts to gests that there is room discharged by appellant fluent are such improve program on that with attempt to discharge of locat- that had the been 318-319, common law.” 451 U.S. federal state, permit not have ed in this would (1981). (Emphasis in at 1793 stringent limita- been issued without original.) imposed by the State of tions than those appears, how- It further sys- North Carolina. legislation prescribes a The federal ever, and Tennes- that both North Carolina for dis- permits of tem for the issuance under the federal stat- see are authorized part point sources as a charges specific permits, and that the effluent utes to issue pollution discharge elimina- the national states limitations of both standards and 1342(a). Subsec- system.3 33 U.S.C. tion § un- required minima and exceed the meet part as provides in 5 of this section tion federal statutes. der the follows: authorize “The Administrator shall Illinois-Mil- opinion in the In its second State, capa- has the he determines which litigation,

waukee administering permit program bility of of a that the holder States held the United objective carry will out subjected to which permit could not be Wisconsin container, pollu- rolling "any stock ... from "point source” is defined The term discernible, conveyance, may discharged.” 33 U.S.C. and discrete are confined tants ditch, any pipe, including 1362(14). but not limited § fissure, conduit, well, channel, tunnel, discrete chapter, permits to issue for discharges be affected permit the issuance of a navigable into the waters within jur- may submit written recommendations to isdiction (Emphasis such State.” permitting (and the Administra- added.) tor) respect any permit applica- and, any part tion if of such written 1342(b) In 33 U.S.C. there are elabo- accepted recommendations are not by the provisions rate permit for programs, state permitting State, permitting (c) provided subsection it is that the notify (and State will such affected State program federal permits will be sus- Administrator) writing of its fail- pended during such time as the per- ure to accept so such recommendations program complies mit with the federal stat- together with its reasons for so do- utory requirements. undisputed It is ing. ...” both North Carolina and Tennessee have 1342(b)(5). 33 U.S.C. § qualified permits to issue under this nation- program, al require- that their effluent permit The North program Carolina equal ments are to or exceed minimum meets requirements, these and the record requirements. The Tennessee re- shows that partici- Tennessee officials were quirements, however, are more pating in appellant’s renewal of than those of North Carolina. in North proceed- Carolina administrative ings at the present time the action was It is clear that state law has not brought. preempted by been the national The federal provide statutes plays that it that the fed- important part in the na power eral state, deny Administrator has program. however, tional Each any permit issuance of clearly operates pro- under a state sphere of its gram. 1342(d)(2). jurisdiction, may own permits not issue principles. read and construed in statutes provisions of both the federal and state within the for or control applicable points to this action must be of other states. The *6 light of those basic lying U.S.C. adversely trator, by any person having an interest lator of a civil actions to be ^[6] § 1365(a). affected, permit, federal statutes also brought against Such actions are to be including a state. 33 the Adminis- provide any vio- brought in judicial in district which the provisions The permit pro for state discharge source of is located. 33 grams themselves abundantly make it clear 1365(c). U.S.C. § respect that each state is to act with lying jurisdiction, waters within its own but provide: federal statutes also cognizance that it must take of the flow of “A may Governor of a State commence a jurisdictions. waters into other ofOne (a) civil action under subsection of this approval permit conditions of of a state section, regard without to the limitations program by the Administrator of the Envi (b) section, subsection of this Agency pro ronmental Protection is that alleged the Administrator where there is gram must: a failure of the Administrator to enforce public, “... insure that the any other an effluent standard or limitation under may State the waters of which be affect- chapter this the violation of which is ed, application receive notice of each for occurring in another causing State and is permit provide opportunity and to public an adverse effect on the health or public hearing ruling before a on State, in causing welfare his or is a viola- application_” each such 33 U.S.C. any quality requirement tion of water in 1342(b)(3). 1365(h). his State.” 33 U.S.C. § Further, program each state must: One United States District Court has dis- (other any agreed “... insure that State than with the conclusions of the Seventh State), permitting may Appeals whose waters Circuit Court of Illinois Mil- waukee, (7th Cir.1984) cesses, 781 F.2d 403 may or even establish private has held that through citizens of one state such limitations state nuisance may sue an polluter apply out-of-state under the them to in-state dis- prop charges. quite law of the state where their say It is another to located, erty is though defending even may the States call courts federal party jurisdic has valid in another employ common law to estab- tion. stringent See Ouellette v. lish applicable International Pa standards Co., per (D.Vermont 1985). F.Supp. dischargers.” out-of-state recently Illinois, This decision 304, 327-328, affirmed in a opinion by 1784, 1797-1798, memorandum the Second Circuit''. 68 L.Ed.2d 114 Appeals. Court of 776 F.2d 55 (Emphasis original). (1958).4 ease, The court in that agree like the following lower We with the observation present litigation, courts in the relied heavi- of the Seventh Circuit Appeals: Court of ly upon general savings appearing clause “However, implausible it seems that Con legislation in the federal contained in 33 gress preserve any meant to or confer as follows: right claiming injury (State of the state

“Except expressly II) provided in this or its citizens to seek enforcement of chapter, nothing (1) chapter in this shall discharges limitations on I State preclude deny right any or applying the statutes or common law of political or subdivision thereof or inter- complex State II. Such a scheme of in agency adopt (A) or enforce regulation terstate would undermine the standard or respecting uniformity limitation dis- cooperation and state envi charges pollutants, (b) any require- or sioned the Act. For a number of respecting ment control or abatement of different independent states to have pollution; except that if an limi- plenary regulatory authority effluent over a sin tation, limitation, or other gle discharge effluent stan- would lead to chaotic con dard, prohibition, pretreatment standard, sovereign frontation between states. performance or standard of Dischargers effect would be forced to meet not under chapter, political such State or only limitations of all subdivision or agency may interstate potentially not states affected their dis adopt limitation, or enforce effluent charges also the common law stan limitation, standard, or other effluent developed through dards case law of prohibition, pretreatment standard, virtually those states. im would be performance standard of possible predict which is less the standard for a limitation, than the body effluent lawful into an interstate limitation, standard, other prohi- effluent Any permit of water. issued under the bition, pretreatment standard, or *7 meaningless. stan- Act In would be rendered performance dard of chapter; under this Congress opinion our could not have in (2) or impairing be construed as in any tended such result.” Illinois v. Mil affecting any right manner jurisdic- waukee, 403, (7th Cir.1984). 731 F.2d respect tion of the States with to the Although its denial of certiorari does not (including waters) boundary waters necessarily Supreme bind the Court of the such States.” interpretation United States to this The Court of the United States statutes, denial, togeth- we think that that foregoing provision noted the and after separate er with its earlier denial of a quoting init a footnote said: Illinois, petition by predicated upon ap- however, thing, say strong sup- “It is one plication of Illinois lends may adopt port given by limita- to the construction the Sev- through pro- Appeals. tions state administrative enth Circuit Court of 1457, 25, See - U.S. -, granted 4. Certiorari was in this case 106 S.Ct. Supreme Court of the United States on March L.Ed.2d 715. The State in present case makes a vate interstate party with sufficient con- strong argument to contrary. We have tacts with the forum and over waters run- every sympathy with the State and its offi- ning through its territorial boundaries. cials in an effort to pollution abate and to See, e.g., 1251(b), 1251(g), U.S.C. §§ control the public contamination of waters. 1365(e), 1365(h), 1370; T.C.A. 69-3- Nevertheless, the Tennessee General As- 103(28) (Supp.1985); Colorado, Kansas v. sembly clearly expressed an intention to 46, 655, 206 U.S. 27 S.Ct. 51 L.Ed. 956 join program a national when enacted the (1907). Tennessee Water Quality Control Act of case, residents, In this wildlife, 1977, and we cognizance believe that must Tennessee, resources of and not other given be to the role of other states which Carolina, those of North primarily are dam joined have also program. duly A aged by the contamination Pigeon authorized from the Environmental River. This case wholly unlike a case Agency Protection or from an authorized involving a waterway national such as the should, and, state opinion, must, in our Mississippi or Ohio Rivers or the Great protection afford some to the holder there- Lakes, pollution where sources of many are of, who frequently has obtained it at enor- and indeterminable. Missouri v. Illi Cf. expense. mous The federal statutes con- nois, 268, 26 S.Ct. 50 L.Ed. ample provisions tain for other states and (1906). Pigeon The River is clean their citizens to enforce the terms of such Champion’s above manufacturing facility, permits, met, if they in fact are not and the it; but it is fouled below no other source of permit process itself affords other states pollution along lies its banks between and their significant officials a participat- Champion and the flow of the river into role the issuance or renewal of dis- Champion privately Tennessee. is a held charge permits. corporation; it does business in Tennessee For these reasons we are of the State; owns land it would for the motion for summary judgment purposes subject juris most other be to the by appellant filed was well taken and diction of Tennessee Courts. How does should have been sustained. judg- Champion differ from other out-of- ments of the courts below are reversed and longarm jur tortfeasor the suit is appel- dismissed at the cost of isdiction of a Exercising jurisdiction state? lees. The cause will be remanded to the Champion over is neither unfair nor unfore trial court for collection of costs accrued Many seeable. corporations interstate there and may further orders which comply must with the diverse laws and necessary. regulations See, e.g., numerous states. - Phillips Shutts, Petroleum v.Co. U.S. BROCK, C.J., COOPER, and FONES and -, (1985); 105 S.Ct. 86 L.Ed.2d 628 JJ., concur. Hague, Allstate Insurance Co. DROWOTA, J., files dissent. 66 L.Ed.2d 521 Tennessee must dealing bear the costs of DROWOTA, Justice, dissenting. pollution Pigeon River, with the considering After the authorities and which costs could be somewhat off-set case, I statutes involved this difficult damages wholly an award of or even allevi- have concluded that it should not be dis- *8 injunction. ated an missed, I, therefore, respectfully and dis- effect, In permitting the Majority is the pre-emption, by of sent. Under the law the poli- State of North Carolina to Statutes, dictate the terms of these Federal and State cy of this State. As the United States power pursuant and to the reserved of the Supreme regard in Court has noted State of Tennessee under the Tenth sovereign powers Amendment to the United States Constitu- of the States under the tion, jurisdiction pri- a Tenth this State has over Amendment:

577 legislate for, impose ment, state can apparently demonstrating very the “[No] policy upon its own One interaction of State and Federal other.... Govern- rule, underlying Justice Blackmun cardinal all relations ments of which conceived Garcia, other, City States supra. to each that of Milwaukee is Cf. of 304, 341, Illinois, equality right. v. 451 U.S. Each state on stands 1784, 1805, (1981)(Milwau- 68 L.Ed.2d 114 the same level with all It can the rest. II) (Blackmun, J., (“Be- dissenting) kee impose legislation its own on no one of contemplates cause the a others, shared yield and is [FWPCA] bound to views authority between Federal Government to none.” entirely and the individual States ... it is Colorado, v. supra, Kansas 206 U.S. at Congress that thought understandable 95-97, By refusing 27 S.Ct. at 666-667. to imperative neither nor desirable to insist jurisdiction case, Major- exercise this approach to improve- exclusive ity permits the policy law and of North quality.”). Thus, ment of water unfrustrated, to remain but Carolina that specifically provides FWPCA that “[noth- frustrated; whereas, of Tennessee will be any right in this section shall restrict jurisdiction exercised, if were the law and (or any person persons) may class of policy both States would be enforced. any have under statute or common to law regard, signifi In this I think that it is seek enforcement effluent standard the State suing cant that is not State of or limitation or to seek other relief political North Carolina or its subdivisions (including against relief the Administrator seeking private but is redress 1365(e). agency).” or a 33 U.S.C. § party, Champion, who is the dual to II, supra, See also Milwaukee 451 U.S. jurisdiction of Federal and State Govern 328, (this 101 at 1798 S.Ct. section of the (including ments that of as Tennessee well exactly Sig- says). FWPCA means what it Carolina). as of North that Hodel Cf. nificantly, “person” definition of in the Virginia Mining Reclama and Surface FWPCA includes State. 33 U.S.C. Ass’n, Inc., 286, tion 1362(5). 2352, 2365, (1981). S.Ct. L.Ed.2d Nothing I have found in the FWPCA jurisdiction of State exercise in this case is Congressional reveals a intent to establish principles consistent Constitutional standards, providing only uniform mini- process, credit, due full faith and and fed encouraging mum and to standards States Moreover, Congress eralism. contem has go goal further to achieve the of clean plated possibility such a in the Federal possible. regard, water as In soon this See, scheme e.g., itself. Supreme sug- the United States Court has 1251(b), 1251(g), §§ Cf. gested uniformity may not re- be the 1365(e), 1365(f). U.S.C. §§ nature, quired every result in case of this Lending support result, a recent having stated enactment of “[t]he concern, the United States federal rule in an area of national analyzes the interaction of displace the States and the whether to state decision so, noting principal Congress, doing generally “the law in made not power purposefully limit on the federal commerce judiciary, basic insulat- pressures, ac ed congressional is that inherent all from democratic system people their through representa- built-in elected tion—the restraints that our II, through Congress.” supra, tives in provides participation fed 313, 101 451 U.S. at S.Ct. at 1790. governmental eral action.” San Garcia Cf. Garcia, supra, 105 S.Ct. at 1017-1019. Metropolitan Authority, Antonio Transit - clearly incorporated Congress has the exer- -, into the cise of State FWPCA: Water L.Ed.2d 1016 The Federal (FWPCA), recog- Congress Control Act 33 U.S.C. policy Pollution “It is the authority nize, protect seq., preserve, primary allows State et responsibilities rights for that of the Govern- substituted Federal *9 reduce, pollution, liability under other federal or state prevent, and eliminate case, development law.”).1 unwavering use ... of In conformi- plan to the this ” ty purposeless uniformity land and water resources.... does not serve the interests of federalism or the Com- 1251(b) added). (emphasis 38 U.S.C. See Every merce case carries with it Clause. my opinion, In also U.S.C. 1370. requiring in circum- equities, its own some statutory entire Federal scheme demon- interest be stances at least that State Congress’s strates intent that compelling as that of the considered expand States continue and even the exer- uniformity. in Federal Government jurisdiction in cise of these cases to achieve system “The of our federal is essence goal unpolluted Being held water. authority left that within the realm to the standards of the State of North Constitution, open to them under the Carolina, it is the of Tennessee when engage in equally must be free to affected, directly whose interests are most any activity that their citizens choose purposes defeats the of the Tennessee Wa- weal, unor- the common no matter how Act, 69-3-101, Quality ter Control T.C.A. § unnecessary anyone or else ... thodox seq., et as well as undermines the structure deems state involvement to be.” practice, relegating In of the FWPCA. Garcia, supra, 105 at 1015. Garcia stringent State with more standards to the goes concept on this then on to elaborate bordering' State for lower standards of federalism: uniformity transforms the mini- the sake of

mum standards into the maximum of the United States Federal Constitution “[The] indepen- I many preserves autonomy standards for interstate streams. ... contrary is in independence think that this result of the dence States — many effectively prevents FWPCA and independence legislative their enforcing higher their stan- States from departments. judicial their [Federal] dards, clearly their au- which are legislative [supervision over either enact, thority intrastate on but their of the States is judicial action tributaries. except as to matters permissible no case specifically autho- by the Constitution Furthermore, Clause how Commerce States.” delegated United rized impaired by imposing purposes would be omitted). (citation Since at 1017 101 S.Ct. Champion not clear. on Tennessee law abrogated the federal II has one and comply with Champion will have area, light law in this standard, compliance with since only one FWPCA, and comprehensive scheme comply with will also Tennessee’s standard purposefully itself the FWPCA because Carolina; thus, policies of North that statutory common law and preserves State enforced. will be and laws of both States pri remedies, over a then State Milwaukee, 406 U.S. City Illinois v. I pre-empted. is not party interstate vate (1972) L.Ed.2d 712 {Mil 92 S.Ct. case the emphasize the facts high I), that “a State foresaw waukee certain, Tennes pollution is source of may well ask water-quality standards physical the financial see must bear and that be honored strict standards has this State pollution, that burdens the more lower itself to compelled to not be Champion, and contacts with substantial neighbor.” 406 of a degrading standards on com effect considering the insubstantial Mil 107-108, at 1395. 92 S.Ct. U.S. at Cf. required nor merce, is neither pre-emption 341, II, at supra, waukee Hodel, supra, 452 U.S. reasonable. J., dissenting) (Blackmun, S.Ct. at Cf. J., (Rehnquist, con 101 S.Ct. at scheme, any permit (“[U]nder the in cases that these curring) (emphasizing qualifying or a by the EPA issued that the ef- degree and questions of discharger from volve insulate a agency does not that, standards enforce their more courts to as fore- also reiterated Justice Blackmun parties. U.S. at polluting I, on out-of-state 353, Milwaukee II the effect of in Milwaukee seen at 1811. to their own to resort to allow States would be

579 141, 3014, on 3022, feet commerce must be substantial 458 U.S. 102 S.Ct. 73 justify federal pre-emption). (1892).” also L.Ed.2d 664 Cf. Equal Employment Opportunity Comm. Pre-emption 678 S.W.2d at 51. is not clear- 226, 249, Wyoming, v. 460 U.S. 103 S.Ct. manifestly and ly intended is not com- 1054, 1062, (1983) 75 (recogniz L.Ed.2d 18 pelled by purpose the structure and of the ing that degree appro considerations of are contrary, Federal Statute —on the the priate in cases). some Tenth Amendment provisions FWPCA contains several that Additionally, Tennessee’s case law estab- preserve, incorporate, encourage and State its pre-emption lishes own criteria for in jurisdiction. Scott, (Tenn.1984), State 678 50 S.W.2d Scott, Applying supra, the criteria at follows the United States 51, deciding pre-emption whether has Court’s cases in this juris- area. Tennessee case, occurred in this I have concluded that diction over the waters that flow within its peculiarly pervasive no Federal regulatory borders is a matter the police pow- program is involved under terms of the State, ers of the Rehnquist and as Justice Federal Act itself and the Federal II, supra: noted Milwaukee interest is compelling no more than that of appropriate analysis in determin- “[T]he Tennessee’s, considering especially it ing if federal governs law question is this State’s water resource that is at previously of federal jurisdic- law is not the same stake. The exercise of Tennessee as that employed deciding pre- if federal law wholly objectives tion is consistent with the empts state In considering law. the lat- obligations Requiring and of the FWPCA. ‘ question, ter with assump- “we start Champion comply with Federal and tion powers that the historic police of the regulations physically impossi- State is not superceded States were not to be ble, compliance since with Tennessee’s Federal Act unless that was the clear standards fulfills those of North Carolina ’ purpose manifest of Congress.” well as those of the Federal Government Co., Jones Rath Packing provisions under the FWPCA. 1305, 1309, 97 S.Ct. 51 L.Ed.2d 604 Champion comply only will have to with (1977).” standard, non-conflicting one albeit 451 U.S. at at S.Ct. higher Cf. Any one. for a uniform need stan- II, supra, U.S. at require- dard cannot be disserved this (Blackmun, J., dissenting) ment. (“Long before the 1972 decision in [Mil- To find that has State been /], waukee federal common law enunciated pre-empted in this reduces the case State this right Court assured State each an administrative arm Federal be free from unreasonable interference “The Tenth Amendment was Government. its natural with environment resources prevent Congress invoked to from exercis- when interference stems from another ‘power impairs its in a fashion citizens.”) (citations omitted). or its State ability integrity or their to function States’ Scott, Consistently principles, with these effectively system.” Garcia, in a federal supra, found that these (Powell, J., supra, 105 S.Ct. at 1029 dis- “police powers pre ... are not to be senting). interfering Tennessee is not empted by legislation unless that objectives or interests State of Congress’ pur manifest clear and Carolina; acting against North pose. Corp., Rice v. Santa Fe Elevator and, successful, private party, if it is 218, 230, 1146, 1152, only incidentally will not action benefit (1947). Pre-emption L.Ed. 1447 is com Carolina, fully also more North only if pelled expressly it is stated in the purposes of the FWPCA to elim- serves or is in the implicit

statute statute’s pollution. the Full Faith and purpose. inate Under Fidelity structure Federal Cuesta, Savings & Loan v. de la Clause of the States Consti- Ass ’n. Credit United tution, obligated North Carolina would be HOUSEAL, judgment Daphney

to enforce a Tennessee rendered *11 Dale private long- Plaintiffs-Appellants, tortfeasor under its Moreover, jurisdiction. arm the effect of Tennessee’s action is not substantial ROBERTS, Commissioner, Tennes Gene Hodel, supra, interstate commerce. See Department Safety, see 310-311, at 101 S.Ct. at 2391 Defendant-Appellee. J., (Rehnquist, concurring). The FWPCA “require the to abandon cannot State [its] Tennessee, Appeals goals, public policy deci or to abandon Section, at Nashville. Middle underlying Equal Employ them.” sions Wyoming, Opportunity ment Comm. v. April 1984. 103 S.Ct. at 1062. supra, 460 U.S. Appeal Permission Application for comity to the of North No lack of State by Supreme Court Denied implied, incongru I find it Carolina is 16, 1984. July that North Carolina would ever defend ous public policy right pollute on the as its

part Champion. pri-

This State has over party matter

vate and over impaired Federal interest is

this case. No rather, frustrated; the inter-

or otherwise Carolina, Tennessee, North

ests of all— furthered. The

the United States —are acting legislative authori-

State is public policy.

ty to achieve its Substantial protecting interests are involved boundaries, quality of water within its uniquely compelling is a matter of people must use it. In

concern to the who the structure of the FWPCA and

view of any Federal common

the absence of jurisdiction is of Tennessee

the exercise Amendment to the

protected by the Tenth “This Constitution.

United States [Amend- meaning by of its is not to be shorn

ment] construction, or technical any narrow fairly liberally so as to

to be considered scope meaning.”

give effect to its Colorado, supra, 206 U.S. at

Kansas v. Accordingly, I must

90-91, 27 S.Ct. at

respectfully dissent from

majority.