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City of Milwaukee v. Illinois, 101 S.Ct. 1784 (1981).

In the landmark decision Erie Railroad v. Tomkins, the United States Supreme Court set forth the general proposition that the federal courts may not provide their own rules of decision under the guise of federal common law. Since Erie, however, in cases involving a significant federal interest, the Court has consistently backed away from this rather harsh limitation on federal judicial power. In the City of Milwaukee v. Illinois decision, the United States Supreme Court apparently came full circle, returning to its rule preventing federal courts from fashioning federal common law, at least in the context of interstate water pollution controversies. The immediate effect of City of Milwaukee is to preclude the states from bringing common law nuisance actions demanding relief from the harmful effects of extraterritorial pollution.

Just nine years prior to City of Milwaukee, in Illinois v. Milwaukee, a case involving the same dispute and parties, the Supreme Court gave formal recognition to the federal common law nuisance action for the abatement of water pollution crossing state boundaries. More important, the Illinois v. Milwaukee Court held that because interstate pollution is a federal concern, the nuisance action qualified for a grant of 28 U.S.C. § 1331 federal question jurisdiction. Because of the Supreme Court's holding that it was no longer the only forum available to hear such a dispute between two states, for the first time, a state could initiate a common law nuisance action in a federal district court.

Congress severely criticized the judicial response to water pollution as being far too "ad hoc" and "sporadic” a method for adequately dealing with the mounting pollution problem. Just six months after Illinois v. Milwaukee, Congress passed the Federal Water Pollution Control Act Amendments of 1972 (FWPCAA). The new regulatory scheme changed the approach to water pollution from one of state control and authority to a federal framework of standards and enforcement. Both Congress and the Supreme Court regarded the FWPCAA as a "comprehensive" legislative response to the inadequacies of past pollution control efforts.

In Illinois v. Milwaukee, the Court acknowledged that, in time, the legislature might take action which would preempt any further need for the federal common law nuisance action. City of Milwaukee v. Illinois provided the Court with the first opportunity to determine the propriety of maintaining a federal common law nuisance action in light of the FWPCAA. This case note explores whether, by abolishing such a nuisance action, the Court has laid to rest what Congress intended to be an important mechanism for enforcing and effectuating the FWPCAA.

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