The Frictions of Federalism: The Rise and Fall of the Federal Common Law of Interstate Nuisance

Prior to the erection in the 1970s of a comprehensive federal regulatory infrastructure to protect the environment, transboundary pollution disputes frequently were adjudicated by the U.S. Supreme Court, exercising its original jurisdiction over disputes between states. In a series of cases commencing at the dawn of the Twentieth Century, the Court served as a national arbiter of interstate pollution disputes. This paper reviews the history of the Supreme Court\u27s use of these cases to develop a federal common law of interstate nuisance. The paper argues that while federal common law initially performed a zoning function by encouraging polluters to relocate to less populated areas, injunctions issued by the Court ultimately spawned the development of new pollution control technology. Through a series of injunctions designed to vindicate the right of sovereign states to prevent significant harm from transboundary pollution, the Court restricted emissions from Tennessee copper smelters, required Chicago to build its first sewage treatment facilities, and mandated that New York City construct an incinerator to dispose of garbage formerly dumped into waters washing onto New Jersey shores. By holding source states liable for damage caused by transboundary pollution, the Court contributed to the development of new technology for reducing pollution. Despite its unique role in resolving disputes between states, the Supreme Court long doubted its competence to make complex judgments concerning appropriate levels of pollution control. Thus, it sought to encourage states to resolve transboundary pollution disputes through negotiation and cooperation. While these efforts largely failed, the Court ultimately removed itself from the role of arbiter of transboundary pollution disputes by holding that the Clean Water Act\u27s comprehensive federal regulatory program to control water pollution preempted the federal common law of interstate nuisance