Does the Environmental Protection Agency Have the Right to Assert Exclusive Authority to Regulate Certain Environmentally-Toxic Discharges on Property?

In Illinois v. Milwaukee, 406 U.S. 91, 92 S.Ct. 1385 (1972), the Supreme Court addressed the extent of the federal Environmental Protection Agency’s exclusive right to regulate discharges of toxic waste on land.  Notably, that case was cited favorably by the Supreme Court in its June 2011 opinion in  Am. Electric Power Co., Inc., v. Connecticut, __ U.S. __, 131 S.Ct. 2527 (2011).

In the Illinois case, the Supreme Court recogniz[ed the] right of Illinois to sue in federal District Court to abate discharge of sewage into lake Michigan. Illinois, 406 U.S. at 93. Importantly, in a follow up case known as Milwaukee II, the court held that amendments to the Clean Water Act displaced the common law nuisance claim allowed in the previous case. Milwaukee v. Illinois, 451 U.S. 304, 316-319, 101 S.Ct. 1784 (1981).

The importance of this holding was highlighted by the fact that it was cited this past month in the Connecticut case for the proposition that the federal government has the right to create an environmental regulatory scheme that will preclude common law claims for the same wrongful conduct. In Connecticut, court held that four private power companies and the federal Tennessee Valley Authority could not be sued for common law nuisance claims because the Clean Air Act, as enforced by the Environmental Protection Agency, superseded them. 

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