In the case of Illinois v. City of Milwaukee (406 U.S. 91 (1972)), Illinois sued Milwaukee (and three other Wisconsin cities) for being a public nuisance by polluting Lake Michigan. The case was heard under the original jurisdiction of the US Supreme Courts, because it was a matter between the States. However, the Supreme Court held that future cases like this should be heard in Federal District Courts instead of bothering the US Supreme Court directly.

  • In addition, the US Supreme Court held that Illinois could sue under the Federal common law. Until this case there was some debate as to whether Federal regulations, such as the Clean Water Act, effectively preempted lawsuits based on the common law concept of public nuisance.

However, by the time this case went back to the Federal District Court and then back again the US Supreme Court (Illinois v. City of Milwaukee (451 U.S. 304 (1981)), The US Supreme Court had reversed itself and decided that the Clean Water Act did indeed preempt Federal common law nuisance actions.

  • In a dissent, it was argued that since the Clean Water Act 505(e) contains a provision saying that the Act doesn't restrict any common law rights, then you should still be able to sue for being a public nuisance.
  • The later case of International Paper Co. v. Ouellette (479 U.S. 481 (1987)) held that even though Federal common law was preempted, the regulations did not preempt State common law.