of the several States. And State courts everywhere have the power to abate nuisances, if that power can be reasonably and equitably exercised with due concern and consideration for the rights of the people and the necessities of modern civilization. But any court whether State or Federal, is loathe to render a judgment for the abatement of a nuisance if that judgment spells the destruction and the livelihood of those who are engaged in or are employed by that industry. In fact, the pollution of water is one of the evils resulting from the increase in the density of population and the social and economic conditions under which life in a modern civilization must be lived. And those evils must remain until a way can be found to prevent them without destroying the things that have even more value than the amount of the damage which results from the evils. The inherent defect in the Lonergan-Pfeifer bill arises not only in the fact that it is premature and creates a duty to prevent something which, in many instances, nobody knows how to prevent. Its defect lies also in the fact that it inevitably makes Federal jurisdiction supersede and thereby nullify the power and authority of the States with respect to water pollution.

If the Lonergan-Pfeifer bill is constitutional and is the exercise of some power which is granted to the Congress then in accordance with generally accepted law, the jursidiction of the Federal Government with respect to water pollution will be supreme and will supersede any and all laws and regulations promulgated by any of the States or by their authority. Thus, the States will be prevented from dealing locally with local conditions in accordance with local necessities. And all water pollution prevention must be carried on in accordance with the general rules and regulations promulgated by any particular district board for the regulation of water pollution within its territory, and thus the activities and efficiency of State authorities and of State efforts to prevent water pollution will be completely nullified.

This would be a calamity. If the prevention of water pollution is to be successful in any community, it must depend upon the support of public opinion. That public opinion can be best informed through the activities of local authorities. The activities of Federal authorities in the formation of favorable public opinion and support is difficult at best and usually impossible.


Sections 6 (b) and 9 are, in our opinion, not only unworkable, but are unconstitutional.

Section 6 (b) authorizes and directs the committee to fix standards of purity for the water of each of such districts; to establish minimum requirements for the treatment of polluting material before the same may be discharged into such waters, and finally directs the committee to promulgate regulations governing the discharge of any matter or materials into such waters.

Section 9 of the bill declares that the discharge or deposit of any wastes or other substances, whether in a solid, gaseous or liquid state, into any of the navigable waters of the United States or into any stream from which the same may float or be washed into any of such navigable waters, in violation of regulations promulgated by the committee, etc., to be a public and common nuisance.

The section further provides that in order to prevent or abate any nuisance prohibited by the act an action shall be brought in the name of the United States by any United States attorney gaainst any person violating the provisions of this section.

If the bill is enacted into law, and assuming it to be constitutional, a conflict, as already pointed out, immediately arises between Federal law and any State law dealing with the control of pollution. The result will be that as soon as the Federal Government assumes jurisdiction over the control of pollution the State will be ousted from jurisdiction, at least so far as the Federal Government has assumed jurisdiction. This point is well illustrated in Wisconsin by the decision in Yawkey-Bissell Lumber Co. v. Railroad Commission (204, Wis. 110). The Interstate Commerce Commission was granted jurisdiction over interstate railroad transportation. The State of Wisconsin in the interest of safety in intrastate railroad traffic enacted section 195.03 (18) of the Statutes of Wisconsin relating to railroad safety devices. The State statute authorizes the Commission to make reasonable rules, regulations, specifications, and standards for the installation, operation, and maintenance of all safety devices and measures pertaining to railroads in intrastate traffic.

The Minneapolis, St. Paul & Sault Ste. Marie Railway Co. entered into a contract with a Wisconsin lumber company authorizing the lumber company to operate certain logging trains on the main lines of the railroad company, on which passenger trains were operated. All points covered by the contract were entirely within the State of Wisconsin. The cars composing the train were four-wheel cars or eight-wheel standard cars with a height of the cars from the top of the rail to the center of the coupling not exceeding 25 inches. The logging trains were not equipped with automatic couplers and air brakes. The Wisconsin Railroad Commission, pursuant to section 195,03 (18), Wisconsin Statutes, ordered the installation of automatic couplers and air brakes on such logging trains.

The Safety Appliance Act of the Interstate Commerce Commission provides that all cars moving in interstate commerce must be equipped with automatic couplers and air brakes, except four-wheel cars or eightwheel cars where the height is less than 25 inches from the top of the rail to the center of the coupling.

The court held that there was a conflict between the State and Federal regulation and that since the field is occupied by Congress, the order of the Commission is void. In other words, the State of Wisconsin was rendered powerless to protect its citizens from the dangers of what it considered an improperly equipped railroad logging train operating in interstate traffic.

Again, after the committee has established standards of purity for the waters of a district, the State may not fix different standards, even though it may be desirable or necessary in some particular locality.

With respect to standards of purity for water, the provision of section 3 (a) of the bill authorizing the committee to cooperate with the States would merely mean that the State enforce the decree of the committee.

There are numerous decisions holding that regulation by Congress in a field over which it has jurisdiction will override regulations of a State when in conflict therewith. Chicago, Milwaukee & St. Paul

R. R. Co. v. Railroad Commission (Cab Curtain case) (1926, 272 U. S 605); Oregon-Washington Railroad and Navigation Co. v. Washington (1926, 270 U. S. 87); Johnson T. & F. Lines v. Perry (1931, 47 Federal Reporter (2d) 900). In the Cab Curtain case, above cited, Justice Brandeis, speaking for the Court, said:

We hold that State regulation is precluded because the act as we construe it was intended to occupy the field. The broad scope of the authority conferred upon the Commission leads to that conclusion. Because the standards set by the Commission must prevail, requirements by the States are precluded, however commendable or however different their purpose. (See also McCullough v. Maryland (4 Wheat 316; 9 Wheat 1).)

After the committee under the proposed bill, section 8 (b), establishes minimum requirements for the treatment of polluting substances, the State may not adopt any rules or regulations which conflict with the Federal rules and regulations. The State may, perhaps, enact legislation which would result in more complete treatment.

Judging by the growth of the power originally granted to the Interstate Commerce Commission which has now such complete control over railway traffic that it has power to determine rates for intrastate traffic, we may reasonably come to the conclusion that after the committee is once in the saddle it will be but a short time before the word "minimum" will be eliminated by amendment and the committee occupy the entire field dealing with pollution. In fact the committee may do so under the act by making the requirements for the treatment of sewage and wastes stringent enough so that the States would not adopt higher standards of treatment.

Let us now consider the methods provided in the bill whereby the evils which are the subject matter of the act are to be cured. The rules and regulations of the committee will have the force of law. The committee fixes standards of purity for all waters in the United States. It likewise provides methods to be employed or results to be obtained in the treatment for all wastes, whether they be the wastes of municipalities, industries, or individuals. Compliance with the rules and regulations adopted by the committee is to be enforced by an action brought by a United States district attorney in a United States court. The action need not be brought in a United States court within the district in which the violation is alleged to have occurred, but in such a court wherever situated. The State courts are ousted from jurisdiction in cases involving violations of the proposed act.

Polluting substances which flow into navigable waters and into smaller streams and water courses are multitudinous, and the sources of pollution are infinite. The mere enactment of laws making it unlawful to discharge untreated sewage or trade wastes or what not into public waters and providing penalties for a violation of such laws. accomplishes little or nothing. This was tried in Wisconsin by the enactment of section 29.29 (3), Statutes, in 1917. The Congress tried it by the enactment of section 13, act of March 3, 1899, and by the enactment of the Oil Pollution Act of 1924.

To be reasonably successful in controlling pollution in a community requires the support of the public opinion of that community. This support cannot be obtained by a nonresident Federal agency located at Washington. Municipalities, individual manufacturing establishments, and private citizens resent the interference by Washington in affairs which are wholly local.


The Federal Government is one of delegated powers. All powers not delegated to the Federal Government by the Federal Constitution and not prohibited by the Constitution are reserved to the States. The framers of the bill seem to have been in grave doubt under which section of the Federal Constitution Congress may enact the proposed law. Section 9 of the bill, which declares the discharge or deposit of untreated wastes into navigable water to be a public nuisance and subject to abatement, recites that the proposed legislation is made pursuant to the powers of the United States (a) to regulate commerce and navigation; (b) to extend, change, and amend the admiralty and maritime law; (c) to give effect to the migratory bird treaty; and (d) to protect the fisheries, particularly the anadramous fish. The framers of the bill cherished the hope that the constitutional power to enact the bill into law might be found under one of the powers mentioned. We will discuss these clauses in their order.

(a) To regulate commerce and navigation

The power delegated to Congress by the so-called commerce clause of the Federal Constitution is limited to commerce among the several States, with foreign nations and with the Indian tribes. This limitation excludes from Federal control commerce not so designated, that is, commerce which is entirely within the limits of a State. The disposal of waste resulting from manufacturing processes or the disposal of human wastes is in no sense the carrying on of commerce. The control of waste disposal is one of the powers reserved by the States. Wastes disposed of in navigable water may remotely affect commerce in the single instances in which the wastes form sludge on the bed of a harbor or river, whereby navigation is hindered. An adequate remedy for such an obstruction now exists, viz. an equitable action to abate the obstruction. Such isolated obstructions would not authorize Congress to take over the entire field of pollution control.

The police power of the States is the power "to promote the health, safety, morals and general welfare." In exsercising this power the States may affect, for instance, commerce incidentally. If the burden is not material, such laws are sustained by the courts. Thus the States may permit untreated sewage to be deposited in navigable water, which deposit may incidentally affect navigation. It is always the power of Congress to remove such incidental burdens upon interstate commerce. See Smith v. Alabama (124 U. S. 465); Plumley v. Massachusetts (165 U. S. 461).

(b) To extend, change and amend the admiralty and maritime law

The Federal Constitution, section 2, article III, provides that the judicial power shall extend "to all cases of admiralty and maritime jurisdiction." In other words, this section merely provides that the United States shall have exclusive jurisdiction over all admiralty and maritime cases. It merely involves the right to determine the maritime law and to hear and determine judicially controversies between parties to a legal proceeding involving admiralty or maritime cases. In Southern Pacific Co. v. Jensen (244 U. S. 205), the court points out (at p. 214) that article III, section 2, of the Federal Constitution

gives Congress paramount power to fix and determine the maritime law which shall prevail throughout the country, and quoting from the Lottawanna (21 Wall. 558), the court says:

* *


That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument (Federal Constitution) that the judicial power of the United States shall extend to "all cases of admiralty and maritime jurisdiction." One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been intended to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign States.

No cases can be found in which it is held that the provisions of the Constitution above quoted authorize the Federal Government to legislate concerning pollution.

(c) To give due effect to the migratory bird treaty

Under section 1 of article X of the Federal Constitution, the States are prohibited from making treaties. This power was delegated to the Federal Government. The treaty power has, however, no relation to the problem of waste disposal. Possibly, in an individual case, where it can be shown that migratory birds are being destroyed by the discharge of polluting substances in navigable water, the Federal Government might institute an action against the person guilty of pollution to enjoin him from continuing the act.

In United States v. Hauver (214 Federal Reporter 154, 1914), it was held that the States retained their police power which they, as sovereign nations, possessed prior to the adoption of the National Constitution so far as such powers pertain to the internal affairs of the State, and that no such powers were granted to the Federal Government. Further held that migratory birds are not the property of the United States, but that they are the property of the States in their sovereign capacity as the representatives of and for the benefit of the people in common. These cases have not been overruled.

The migratory bird treaty was held valid on the sole ground that the power to make treaties is delegated expressly to the United States by article VI. Missouri v. Holland (252 U. S. 416).

(d) To protect the fisheries, particularly the anadramous fish

In United States v. McCullough (221 Federal 288), it was held that the Federal Constitution is one of purely delegated powers and that when an act of Congress is challenged in due form and proper manner some provision in the Constitution authorizing the act, in express terms or by necessary implication, must be pointed out. It was further held that the title to wild animals and birds is in the State in trust for all the people of the State. Held also that the act of Congress of March 4, 1913, providing that migratory birds shall be deemed in the custody and protection of the United States and shall not be taken contrary to the regulations adopted by the Department of Agriculture, is unconstitutional and void.

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