author: Justice White Justice Powell,

text:
    CITY OF PLEASANT GROVE v. UNITED STATES
    No. 85-1244.
    Argued December 10, 1986
    Decided January 21, 1987

      White, J., delivered the opinion of the Court, in which Brennan, MARSHALL, Blackmun, Stevens, and Scalia, JJ., joined. Powell, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor, J., joined, post, p. 472.

      Thomas G. Corcoran, Jr., argued the cause for appellant. With him on the briefs were Donald J. Cronin and Thomas N. Crawford, Jr.

      Jerrold J. Ganzfried argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, and Walter W. Barnett.

        Daniel J. Popeo and George C. Smith filed a brief for the Washington Legal Foundation as amicus curiae urging reversal.

        David Boies, Stephen D. Poss, Joaquin Avila, and Armand Derfner filed a brief for the Democratic National Committee as amicus curiae urging affirmance.

   Justice White

delivered the opinion of the Court.

Appellant, Pleasant Grove, a city in Alabama that until recently had an all-white population, is covered by §5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c, and accordingly must seek preclearance before instituting any change in a standard, practice, or procedure affecting voting. Appellant unsuccessfully sought preclearance by the Attorney General for the annexation of two parcels of land, one vacant and the other inhabited by a few whites. Appellant also failed to convince a three-judge District Court that the annexations did not have the purpose of abridging or denying the right to vote on account of race. We noted probable jurisdiction, 476 U. S. 1113 (1986), and now affirm.

HH

Appellant, whose population numbers approximately 7,000, was described by the District Court as “an all-white enclave in an otherwise racially mixed area of Alabama.” 568 F. Supp. 1455, 1456 (DC 1983). The city has a long history of racial discrimination. The District Court’s opinions chronicle the city’s past discriminatory practices in some detail, and we will not repeat that history fully here. See 623 F. Supp. 782, 787-788 (DC 1985); 568 F. Supp., at 1456-1457. Suffice it to say that in housing, zoning, hiring, and school policies appellant’s officials have shown unambiguous opposition to racial integration, both before and after the passage of the federal civil rights laws.

The two annexations at issue in this case are the Glasgow Addition, a 40-acre parcel added in 1969, App. 7, and the Western Addition, a 450-acre area added in 1979. The Glasgow Addition was added at the request of its inhabitants, an extended white family who wished their children to attend appellant’s newly formed, all-white school district rather than the recently desegregated Jefferson County system. The Western Addition is uninhabited, but the District Court found that “its location and the City’s plans [for relatively expensive housing] indicate that it is likely to be developed for use by white persons only.” 623 F. Supp., at 784, n. 5.

While approval of the Western Annexation was pending before the Alabama Legislature, appellant’s City Council voted to withdraw fire and paramedic services that appellant was providing without charge to an adjacent black neighborhood known as Pleasant Grove Highlands (Highlands). In response, inhabitants of the Highlands, which has housing comparable to that in Pleasant Grove, petitioned for annexation to the city. The City Council restored free fire protection, but did not otherwise act on the petition. App. 18-19.

Appellant sought preclearance for the annexation of the Western Addition, but the Attorney General objected because he found the refusal to annex the Highlands indicative of an intent to annex only white areas. The city then filed this declaratory action in the District Court for the District of Columbia. In denying appellant’s motion for summary judgment, the court held, over one judge’s dissent, that “a community may not annex adjacent white areas while applying a wholly different standard to black areas and failing to annex them based on that discriminatory standard.” 568 P. Supp., at 1460. In its subsequent decision on the merits, the court, with one judge dissenting, denied declaratory relief, holding that the city had failed to carry its burden of proving that the two annexations at issue did not have the purpose of abridging or denying the right to vote on account of race. This appeal followed.

II

Before addressing appellant’s arguments, we find it useful to review two fundamental principles of the Voting Rights Act.

First. An annexation of inhabited land constitutes a change in voting practice or procedure subject to preclearance under §5. City of Richmond v. United States, 422 U. S. 358, 368 (1975); Perkins v. Matthews, 400 U. S. 379, 388 (1971)). Even the annexation of vacant land on which residential development is anticipated must be precleared before those moving into the area may vote in the annexing jurisdiction. In City of Rome v. United States, 446 U. S. 156 (1980), this Court affirmed the denial of preclearance to 13 annexations, 9 of which were vacant land. See id., at 194,196 (Powell, J., dissenting); City of Rome, Ga. v. United States, 472 F. Supp. 221, 246 (DC 1979). This holding is consistent with the well-established teaching of Allen v. State Board of Elections, 393 U. S. 544 (1969), that Congress intended the preclearance provisions of the Voting Rights Act to be given “the broadest possible scope,” id., at 567, and to reach “any state enactment which alter[s] the election law of a. covered State in even a minor way,” id., at 566. Allowing a State to circumvent the preclearance requirement for annexations by annexing vacant land intended for white developments would dis-serve Congress’ intent to reach “the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Id., at 565. Moreover, the Attorney General, whose interpretation of the Voting Rights Act is entitled to considerable deference, see, e. g., United States v. Sheffield Board of Comm’rs, 435 U. S. 110, 131 (1978), has consistently interpreted § 5 to reach the annexation of vacant land intended for residential development. Finally, Congress was aware of the Attorney General’s view in this regard, and implicitly approved it, when it reenacted the Voting Rights Act in 1982. Cf. id., at 131-135.

Second. “Congress plainly intended that a voting practice not be precleared unless both discriminatory purpose and effect are absent.” City of Rome, supra, at 172 (emphasis in original). See also, e. g., City of Richmond, supra, at 378. The burden of proving absence of discriminatory purpose and effect is on appellant. See, e. g., City of Rome, supra, at 183, n. 18.

III

The city does not claim that either of the two annexations was not a change in voting practices subject to preclearance under § 5, even though the Western Addition was at the time uninhabited. Neither does it disagree that it must prove that the two annexations had neither the discriminatory purpose nor effect prohibited by § 5 of the Act. Its challenge is to the District Court’s conclusion that the city had not carried its burden of showing that the annexations were untainted by a racially discriminatory purpose. In arriving at this judgment, the District Court relied on a variety of evidence, principally its finding that the refusal to annex the Highlands while annexing other areas was racially motivated. These findings, both as to the purpose of not annexing the Highlands and with respect to the weight of the evidence regarding the purpose of the two annexations at issue, are findings of fact that we must accept unless clearly erroneous. The city has not convinced us that they are.

Appellant insists, as it did below, that its failure to annex the Highlands was not racially motivated, but based upon economic considerations. The District Court found this justification “a mere pretext for race-biased annexation decisions.” 623 F. Supp., at 784. The.court found that appellant’s economic argument was developed after the fact and was not the true basis for the decision not to annex the Highlands. Id., at 784-785. Furthermore, the court found that appellant’s argument did not reflect economic realities in a number of respects. For example, appellant’s calculation of the costs of annexing the Highlands included the cost of services it was already providing gratis to that neighborhood. Id., at 786-787. Appellant also failed to consider that annexing the Highlands would generate immediate ad valorem taxes and possibly development fees from the construction of new homes. Id., at 786. At the same time, appellant’s comparative estimate of the revenues that would be generated by the Western Addition failed to take into account such necessary costs as the construction of a new fire station, a major traffic artery, and a new neighborhood park. Id., at 787, n. 21. The District Court concluded that refusing to annex the Highlands was racially motivated.

Appellant argues that even if its decision not to annex the Highlands was racially motivated, that decision was not a change respecting voting and hence not subject to § 5. That point is correct but not dispositive; as the Solicitor General argues: “[T]he failure to annex [black] areas, while the city was simultaneously annexing non-black areas, is highly significant in demonstrating that the city’s annexation here was purposefully designed to perpetuate Pleasant Grove as an enlarged enclave of white voters.” Brief for United States 21, n. 12.

Appellant also relies on the fact that there were no black voters in Pleasant Grove at the time the relevant annexation decisions were made, so that the annexations did not reduce the proportion of black voters or deny existing black voters representation equivalent to their political strength in the enlarged community. Cf. City of Richmond v. United States, 422 U. S., at 370-371. Appellant contends that since the annexations could not possibly have caused an impermissible effect on black voting, it makes no sense to say that appellant had a discriminatory purpose. This argument is based on the incorrect assumption that an impermissible purpose under § 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well, as shown by the fact that annexations of vacant land are subject to preclearance even though no one’s right to vote is immediately affected. See supra, at 467-468, and n. 8. Likewise, an impermissible purpose under § 5 may relate to anticipated as well as present circumstances.

It is quite plausible to see appellant’s annexation of the Glasgow and Western Additions as motivated, in part, by the impermissible purpose of minimizing future black voting strength. Common sense teaches that appellant cannot indefinitely stave off the influx of black residents and voters — indeed, the process of integration, long overdue, has already begun. See supra, at 465, n. 2. One means of thwarting this process is to provide for the growth of a monolithic white voting block, thereby effectively diluting the black vote in advance. This is just as impermissible a purpose as the dilution of present black voting strength. Cf. City of Richmond, supra, at 378. To hold otherwise would make appellant’s extraordinary success in resisting integration thus far a shield for further resistance. Nothing could be further from the purposes of the Voting Rights Act.

In light of the record before us, we are not left with the definite and firm conviction that the District Court was mistaken either in finding that the refusal to annex the Highlands was racially motivated or that there was insufficient proof that the annexation of the Glasgow and Western Additions did not have a purpose forbidden by § 5. Those findings are not, therefore, clearly erroneous. Anderson v. Bessemer City, 470 U. S. 564 (1985).

The judgment of the District Court is accordingly

Affirmed.

Justice Powell,

with whom The Chief Justice and Justice O’Connor join, dissenting.

The Court today affirms the decision of the District Court, holding that a city can act with a purpose to “den[y] or abridg[e]” black voting rights, 42 U. S. C. § 1973c, even when the city’s actions can have no present effect on the voting rights of any black individual and any future effect on black voting rights is purely speculative. Because the Court’s finding of a violation of the Voting Rights Act is inconsistent with the language and purpose of the Act, I dissent.

I — I

Before examining the decision in this case, it is appropriate to restate the principles articulated in this Court’s decisions under §5 of the Voting Rights Act. We have consistently-noted: “The language of §5 clearly provides that it applies only to proposed changes in voting procedures.” Beer v. United States, 425 U. S. 130, 138 (1976) (emphasis added). See Allen v. State Board of Elections, 393 U. S. 544, 566 (1969). In Perkins v. Matthews, 400 U. S. 379 (1971), the Court first found that a proposed annexation could constitute a “change” in voting procedures covered by § 5. It explained the reason for this holding: “[Section] 5 was designed to cover changes having a potential for racial discrimination in voting, and such potential inheres in a change in the composition of the electorate affected by an annexation.” Id., at 388-389 (emphasis added). See Port Arthur v. United States, 459 U. S. 159, 161 (1982) (“Perkins . . . held that changes in the boundary lines of a city by annexations that enlarge the number of eligible voters are events covered by § 5”) (emphasis added). Thus, this Court’s decisions establish that preclearance under § 5 is required when — and only when — an annexation changes the previous “voting procedures” by altering the number or racial composition of the municipal voters.

We also have defined the type of change in voting procedures that violates the Voting Rights Act: “‘[T]he purpose of §5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the franchise.’” Lockhart v. United States, 460 U. S. 125, 134 (1983) (quoting Beer v. United States, supra, at 141). An annexation can have such a retrogressive effect on the voting rights of blacks by “diluting] the weight of the votes of the voters to whom the franchise was limited before the annexation.” Perkins v. Matthews, supra, at 388. But the Court’s inquiry has not terminated with a finding that a proposed annexation “reduc[es] the relative political strength of the minority race in the enlarged city as compared with what it was before the annexation.” City of Richmond v. United States, 422 U. S. 358, 378 (1975). An annexation that dilutes the minority vote “is not a statutory violation as long as the post-annexation electoral system fairly recognizes the minority’s political potential.” Ibid.

While this Court’s decisions have made clear that a voting-procedure change must lack both discriminatory purpose and effect to survive §5 scrutiny, City of Rome v. United States, 446 U. S. 156, 172 (1980), the Court has always recognized that a discriminatory purpose within the meaning of § 5 must relate to voting. This Court’s broad statement respecting discriminatory purpose under § 5 must be read in context:

“An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race has no legitimacy at all under our Constitution or under the statute. Section 5 forbids voting changes taken with the purpose of denying the vote on the grounds of race or color. Congress surely has the power to prevent such gross racial slurs, the only point of which is ‘to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights.’ Gomillion v. Lightfoot, 364 U. S. 339, 347 (I960).” City of Richmond v. United States, supra, at 378 (emphasis added).

Thus, the previous decisions of this Court make explicitly clear that for a city to have a discriminatory purpose within the meaning of the Voting Rights Act, it must intend its action to have a retrogressive effect on the voting rights of blacks. Lockhart v. United States, supra, at 134.

1 — I 1 — 1

The Court today affirms a finding that m annexing the two parcels of land at issue, the city had the purpose, prohibited by the Voting Rights Act, “of denying or abridging the right to vote on account of race or color.” 42 U. S. C. § 1973c. Because the actions challenged in this case could not have had any effect on minority voting rights, much less a retrogressive effect, it is clear that the city of Pleasant Grove could not have acted with such an intent respecting either of the annexations at issue in this case.

A

When the Glasgow Addition was annexed in 1969, it contained only one family of 12 white voters. Now, more than 15 years later, this 40-acre tract still contains only one family that currently numbers 20 white voters. Of course, one can say that the addition of a handful of white voters to a community of some 7,000 white residents “enlarge[d] the number of eligible voters.” Port Arthur v. United States, supra, at 161. The same could be said if an annexation added only one white voter. But a finding that either annexation was motivated by its anticipated effect on voting rights is out of touch with reality. The “dilution” of any resident’s voting rights from an annexation such as the Glasgow Addition — 20 votes in a city of 7,000 residents — could not constitute a retrogression in voting rights under the Act. No showing has been made — and indeed none could be made — that a change of this number of white voters over a 15-year period has had any effect on voting rights. Nor has the annexation in any way “change[d]. . . the composition of the electorate.” Perkins v. Matthews, supra, at 389. The city was composed solely of white voters before and after the annexation of the Glasgow Addition. The annexation therefore could not have had any effect whatsoever on minority voting rights, and the city could not have acted with a purpose to dilute the voting rights of black municipal voters.

The Court attempts to avoid this conclusion by finding that a retrogression in voting rights, for the purpose of ascertaining discriminatory motivation, can be gauged by the effect of the annexation on some hypothetical future black municipal voters. According to this speculative reasoning, if one assumes that some hypothetical black voters will move into Pleasant Grove in the future, and if one further assumes that the racial composition of the Glasgow Addition will remain unchanged, the hypothetical black voters will find their voting strength diluted from what it would have been absent the annexation. But such speculation in finding a discriminatory purpose on the part of a state actor is illogical and unprecedented. Although we have stated that § 5 reaches changes with the “potential for racial discrimination in voting,” Perkins v. Matthews, 400 U. S., at 389, the “potential” refers to present and concrete effects, not effects based only on speculation as to what might happen at some time in the future. Under § 5, the Court consistently has looked to the effect of a voting change on the present minority residents of the relevant political subdivision. See City of Richmond v. United States, supra, at 378 (The relevant comparison in assessing whether “the post-annexation electoral system fairly recognizes the minority’s political potential” is between “the relative political strength of the minority race in the enlarged city as compared with what it was before the annexation”). Where an annexation’s effect on voting rights is purely hypothetical, an inference that the city acted with a motivation related to voting rights is unsupportable.

B

The Western Addition, annexed in 1979, is a parcel of vacant land. Its annexation did not and could not in any way “change . . . the composition of the electorate.” Perkins v. Matthews, supra, at 389. It did not even “enlarge the number of eligible voters.” Port Arthur v. United States, 459 U. S., at 161. Thus, it is difficult to see how the Court .justifies applying §5 preclearance procedures at all. But even if one assumes that the § 5 procedures apply, this annexation could not have been motivated by a discriminatory purpose proscribed by the Voting Rights Act. There is no basis for imputing an intent to deny or abridge the voting rights of blacks when a community of white citizens annexes completely vacant land. The annexation did not exclude or include a single voter in Pleasant Grove. Nor could the annexation have been intended to have a retrogressive effect on black voting rights when there were no black voters in the city and no voters, white or black, in the Western Addition.

The Court again relies on future hypothetical black voters to find that the city acted with a “purpose of denying the vote on the grounds of race or color.” City of Richmond v. United States, 422 U. S., at 378. Under the same reasoning employed to invalidate the annexation of the Glasgow Addition, the Court relies on its speculation that if the Western Addition became populated with whites and if black voters moved into the city at some time in the future, their vote would be less effective than it would have been had the annexation not occurred. But the Court’s theory is even more speculative when applied to the annexation of the vacant Western Addition. There is no way for the city to ensure that black individuals do not move into the Western Addition. The Fourteenth Amendment and various civil rights laws prohibit racially discriminatory state action, and fair housing laws prevent private action that would discourage black individuals from moving into the area. The District Court’s conclusion that the Western Addition “is likely to be developed for use by white persons only,” 568 F. Supp. 1455, 1457, n. 8 (DC 1983), is sheer speculation. Whites as well as blacks lawfully can move into this area, and not even the prescience of federal courts can predict the extent to which this will occur or whether there ever will be any denial or dilution of the voting rights of blacks.

C

The Court seeks support for its finding that the city acted with discriminatory motivation in the fact that it has declined in the past to annex three predominantly black communities. In his dissent from the decision of the District Court, Judge MacKinnon persuasively pointed out that the city’s economic justification for its annexation policy is plausible. 623 F. Supp. 782, 793-795 (DC 1985). Even if one agreed with the District Court’s view that the economic justification was flawed, this would not support the conclusion that the city acted in this case with a discriminatory motivation 'prohibited by the Voting Rights Act. The Government concedes that a failure to annex is not a voting-procedure “change” covered by §5. See Brief for United States 21, n. 12. Nothing in the legislative history of § 5 or in any decision of this Court is to the contrary. The only possible relevance of the failure to annex is to the city’s intent respecting the annexations that did occur. The desire of the city to annex a vacant parcel of land and a parcel inhabited by one white family, combined with the failure to annex black communities, is relevant — if at all — only if the motivation inferred fairly can be said to relate to voting. Even if the city desired to exclude persons from the city because of their race, the annexations at issue could not possibly deny, abridge, or in any way effect a retrogression in any black individual’s municipal voting rights. The Court’s holding that the city nevertheless intended to impair black voting rights is without justification.

I — I ! — ) HH

As Judge MacKinnon noted in his dissent from the District Court’s opinion: “There may, in fact, be actionable constitutional violations occurring in the City.” 568 F. Supp., at 1462. But the possible existence of discriminatory intent and conduct unrelated to voting does not justify finding the city liable under the Voting Rights Act. We normally presume that state actors respect the guarantees of the Constitution, and we require an individual who alleges otherwise to prove the existence of purposeful discrimination. See Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265 (1977); Washington v. Davis, 426 U. S. 229, 240 (1976). The Voting Rights Act shifts the burden of proof to the state actor to prove the absence of discriminatory purpose. This Court upheld this unusual intrusion by the Act on state sovereignty specifically because its procedures were rationally related to the Fifteenth Amendment’s guarantee respecting the right to vote. South Carolina v. Katzenbach, 383 U. S. 301, 325, 337 (1966). This shift in the burden of proof is justified only when the challenged conduct relates to voting. Here, the Court finds the city’s conduct in fact related to voting when such a relationship cannot rationally exist.

In sum, the Court’s reading of the Voting Rights Act divorces the Act from its constitutional justification — protecting voting rights — and represents an extension of the Act beyond even its “broadest possible scope,” Allen v. State Board of Elections, 393 U. S., at 567. Accordingly, I dissent.

       Section 5, as set forth in 42 U. S. C. § 1973c, provides in relevant part:
      “Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1964. . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, . . . and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the' qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made.”
      It is undisputed that appellant, being a subdivision of the State of Alabama, is covered by § 5. See 30 Fed. Reg. 9897 (1965).

       At the time the District Court denied appellant’s motion for summary-judgment, the city had 32 black inhabitants, all of them residents of a nursing home. Because these persons were not registered to vote, and because city officials were apparently unaware of their existence at the time appellant made its latest annexation of land, the District Court treated appellant as all white. 568 F. Supp., at 1456, n. 3. Appellant informs us that in addition to the black residents of the nursing home, its inhabitants now include three black families, with two blacks registered to vote. Tr. of Oral Arg. 7. Two other black families have homes under construction within the city limits. Ibid.

       Appellant’s school system was subsequently found by a federal court to be an impermissible attempt to thwart the implementation of a unitary school system. Stout v. Jefferson County Board of Education, 448 F. 2d 403 (CA5 1971). Appellant was ordered to provide bus transportation to the black children assigned to its schools, but declined to do so. Ultimately, the court abolished appellant’s school system and transferred control of the schools back to Jefferson County. Stout v. Jefferson County Board of Education, 466 F. 2d 1213 (CA5 1972), cert. denied sub

        nom. Board of Education of the City of Pleasant Grove v. Stout, 411 U. S. 930 (1973).

       Appellant has since resumed free paramedic services to the Highlands, and has continued the provision of free police services. 623 F. Supp. 782, 785 (DC 1985).
      At the same time that it terminated free fire and paramedic protection to the Highlands, the City Council also terminated such free services to the black Dolomite neighborhood, which likewise petitioned unsuccessfully for annexation. The District Court’s opinion does not address in detail the decision not to annex the Dolomite area and we shall not consider it separately.

       During hearings in 1981 on the extension of the Voting Rights Act, Congress asked the Department of Justice to provide summaries of relevant eases. In summarizing the present case, the Department stated: “The Attorney General interposed a Section 5 objection to the annexation to Pleasant Grove of certain vacant land projected for all-white residential development because of the city’s refusal to annex certain black areas.” Extension of the Voting Rights Act: Hearings before the Subcommittee on Civil and Constitutional Rights of the House Committee on the Judiciary, 97th Cong., 1st Sess., 2567 (1982).

       The complaint sought relief only with respect to the Western Addition, but the District Court, when it became aware that the Glasgow Addition had never been precleared, ordered appellant to amend the complaint to include that annexation as well. 568 F. Supp., at 1466, n. 1.

       The court also observed that even if the burden of proving discrimination was on the United States, the court “would have had no difficulty in finding that the annexation policy of Pleasant Grove is, by design, raeially-discriminatory in violation of the Voting Rights Act.” 623 F. Supp., at 788, n. 30.

       See Brief for United States 26, and n. 26. The Attorney General’s position is as follows:
      “Certain annexations, such as those of vacant land designated for use as a public park, do not require Section 6 review. Because Section 5 is concerned only with voting practices and procedures, the Attorney General does not require submission for preclearance of annexations of uninhabited land before such annexations take place. Rather, the Attorney General requires covered jurisdictions to submit such annexations for preclearance before inhabitants on the annexed area may vote in the annexing jurisdiction.” Id., at 21, n. 12.

       Indeed, in 1982 the Department apprised Congress of the Attorney General’s decision not to preclear appellant’s annexation of the Western Addition. See n. 5, supra. See also 128 Cong. Rec. 14297 (1982) (remarks of Sen. Helms) (criticizing Department of Justice decision not to preclear the annexation of an undeveloped subdivision in Wilson, N. C.); S. Rep. No. 97-417, p. 10, and n. 21 (1982) (citing United States Commission on Civil Rights, The Voting Rights Act: Unfulfilled Goals 65, which in turn notes that the Department of Justice has denied preclearance to the annexations of undeveloped areas zoned for middle-income housing).

       The dissent finds it “difficult to see how the Court justifies applying § 5 preclearance procedures at all” to the annexation of the Western Addition, because the annexation did not immediately enlarge the number of eligible voters. Post, at 477. It may be that Pleasant Grove could have delayed seeking preclearance for the Western Addition until that area had inhabitants desiring to vote, see n. 8, supra, but it is understandable that the city chose to seek preclearance at an earlier juncture: developing a tract of land is an expensive proposition, and the marketability of the new homes may depend on assurances that buyers will be entitled to all the benefits of residency in the city — including voting. The Attorney General’s decision to permit Pleasant Grove to seek preelearance at the time it did accommodates the city’s interests and was surely not forbidden by § 5.

       Appellant’s argument is also incorrect insofar as it implies that a covered jurisdiction can short-circuit a purpose inquiry under § 5 by arguing that the intended result was not impermissible under an objective effects inquiry. Much of the dissent’s argument is to the same effect. See post, at 474-477. We rejected such reasoning in City of Richmond v. United States, 422 U. S. 358 (1975). There, an annexation deprived blacks of majority voting status, but we held that no impermissible effect had been shown because “the post-annexation electoral system fairly recognize[d] the [black] minority’s political potential.” Id., at 378. But while the effect of reducing the relative strength of the black vote was, standing alone, perfectly legal, we found it necessary to remand the case for further inquiry into purpose. In so doing, we stated:
      “[I]t may be asked how it could be forbidden by § 5 to have the purpose and intent of achieving only what is a perfectly legal result under that section and why we need remand for further proceedings with respect to purpose alone. The answer is plain, and we need not labor it. An official action, whether an annexation or otherwise, taken for the purpose of discriminating against Negroes on account of their race has no legitimacy at all under our Constitution or under the statute. ... An annexation proved to be of this kind and not proved to have a justifiable basis is forbidden by § 5, whatever its actual effect may have been or may be.” Id., at 378-379.

       To the extent that there is any doubt on the subject, it should be remembered that appellant has the burden of proving the absence of discriminatory purpose respecting voting. See supra, at 469.

       It is difficult even to hypothesize a situation in which the foreseeable effect on black voting rights from an addition of a 20-member white family would be anything more than de minimis. Where the hypothetical effect of an annexation cannot be to dilute black voting strength within the meaning of the Voting Rights Act, to impute such a purpose to the city is irrational.

       At issue in City of Richmond was the proposed annexation by the city of 23 square miles of adjacent land. The preannexation population of the city was 202,359, of which 104,207 or 52% were black citizens. The annexation would have added 47,262 people to the city’s population, of whom 1,557 were black. The postannexation population of the city would have been 249,621, of which 105,764 or 42% would have been black. 422 U. S., at 363. The proposed annexation thus would have significantly changed the composition of the municipal electorate and substantially reduced black voting strength within the city.

       If we are to engage in speculation, an equally logical, if not more compelling, assumption is that the annexation of the Western Addition will increase the black voting strength in the city. The Western Addition is zoned to contain 700 residences. With the sale of each home, the possibility exists that a potential black voter will become a city resident. The same possibility exists with each sale of an existing home in Pleasant Grove. Logically, the increase that the annexation causes in the number of homes for sale should increase the probability that a black individual will buy one and become a municipal voter.

         In 1971, the city denied the annexation request of an area including the historically all-black Woodward School. In 1979, the city denied the annexation requests of the all-black Pleasant Grove Highlands and the predominantly black Dolomite area.


source: Caselaw Access Project

author: Justice Powell Justice Brennan, Justice Stevens,

license: Public Domain

text:
    INTERNATIONAL PAPER CO. v. OUELLETTE et al.
    No. 85-1238.
    Argued November 4, 1986
    Decided January 21, 1987

      Powell, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’ConnoR, and Scalia, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Blackmun, JJ., joined, post, p. 500. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Blackmun, J., joined, post, p. 508.

      Roy L. Reardon argued the cause for petitioner. With him on the briefs were Albert X. Bader, Jr., and Caroline T. Mitchell.

      Peter F. Langrock argued the cause for respondents. With him on the brief were Emily J. Joselson, Jeffrey L. Amestoy, Attorney General of Vermont, and Merideth Wright, Assistant Attorney General.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Habicht, Richard J. Lazarus, and Jacques B. Gelin.

        John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon filed a brief for the Mid-America Legal Foundation as amicus curiae urging reversal.
      A brief for the State of Tennessee et al. urging affirmance was filed by W. J. Michael Cody, Attorney General, John Knox Walkup, Chief Deputy Attorney General, Frank J. Scanlon, Deputy Attorney General, Michael D. Pearigen, Assistant Attorney General, and by the Attorneys General for their respective States as follows: John K. Van de Kamp of California, Joseph I. Lieberman of Connecticut, Jim Jones of Idaho, Neil F. Hartigan of Illinois, Thomas J. Miller of Iowa, William L. Webster of Missouri, Robert M. Spire of Nebraska, Michael C. Turpén of Oklahoma, Arlene Violet of Rhode Island, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, and Mary Sue Terry of Virginia.

   Justice Powell

delivered the opinion of the Court.

This case involves the pre-emptive scope of the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq. (CWA or Act). The question presented is whether the Act pre-empts a common-law nuisance suit filed in a Vermont court under Vermont law, when the source of the alleged injury is located in New York.

I — I

Lake Champlain forms part of the border between the States of New York and Vermont. Petitioner International Paper Company (IPC) operates a pulp and paper mill on the New York side of the lake. In the course of its business, IPC discharges a variety of effluents into the lake through a diffusion pipe. The pipe runs from the mill through the water toward Vermont, ending a short distance before the state boundary line that divides the lake.

Respondents are a group of property owners who reside or lease land on the Vermont shore. In 1978 the owners filed a class action suit against IPC, claiming, inter alia, that the discharge of effluents constituted a “continuing nuisance” under Vermont common law. Respondents alleged that the pollutants made the water “foul, unhealthy, smelly, and . . . unfit for recreational use,” thereby diminishing the value of their property. App. 29. The owners asked for $20 million in compensatory damages, $100 million in punitive damages, and injunctive relief that would require IPC to restructure part of its water treatment system. The action was filed in State Superior Court, and then later removed to Federal District Court for the District of Vermont.

IPC moved for summary judgment and judgment on the pleadings, claiming that the CWA pre-empted respondents’ state-law suit. With the parties’ consent, the District Judge deferred a ruling on the motion pending the decision by the Court of Appeals for the Seventh Circuit in a similar case involving Illinois and the city of Milwaukee. In that dispute, Illinois filed a nuisance action against the city under Illinois statutory and common law, seeking to abate the alleged pollution of Lake Michigan. Illinois v. Milwaukee, 731 F. 2d 403 (1984) (Milwaukee III), cert. denied, 469 U. S. 1196 (1985). The Court of Appeals ultimately remanded the case for dismissal of Illinois’ claim, finding that the CWA precluded the application of one State’s law against a pollution source located in a different State. The decision was based in part on the court’s conclusion that the application of different state laws to a single “point source” would interfere with the carefully devised regulatory system established by the CWA. 731 F. 2d, at 414. The court also concluded that the only suits that were not pre-empted were those alleging violations of the laws of the polluting, or “source,” State. Id., at 413-414.

IPC argued that the holding in Milwaukee III was dispos-itive in this case. The Vermont District Court disagreed and denied the motion to dismiss. 602 F. Supp. 264 (1985). The court acknowledged that federal law normally governs interstate water pollution. It found, however, that two sections of the CWA explicitly preserve state-law rights of action. First, § 510 of the Act provides:

“Except as expressly provided . . . , nothing in this chapter shall... be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” 33 U. S. C. § 1370.

In addition, § 505(e) states:

“Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief_” 33 U. S. C. § 1365(e).

The District Court held that these two provisions (together, “the saving clause”) made it clear that federal law did not pre-empt entirely the rights of States to control pollution. Therefore the question presented, said the court, was which types of state suits Congress intended to preserve. It considered three possibilities: first, the saving clause could be construed to preserve state law only as it applied to waters not covered by the CWA. But since the Act applies to virtually all surface water in the country, the District Court rejected this possibility. Second, the saving clause might preserve state nuisance law only as it applies to discharges occurring -within the source State; under this view a claim could be filed against IPC under New York common law, but not under Vermont law. This was the position adopted by the Court of Appeals for the Seventh Circuit in Milwaukee III. The District Court nevertheless rejected this option, finding that “there is simply nothing in the Act which suggests that Congress intended to impose such limitations on the use of state law.” 602 F. Supp., at 269.

The District Court therefore adopted the third interpretation of the saving clause, and held that a state action to redress interstate water pollution could be maintained under the law of the State in which the injury occurred. Ibid. The court was unpersuaded by the concern expressed in Milwaukee III that the application of out-of-state law to a point source would conflict with the CWA. It said there was no interference with the procedures established by Congress because a State’s “imposition of compensatory damage awards and other equitable relief for injuries caused . . . merely sup plement the standards and limitations imposed by the Act.” 602 F. Supp., at 271 (emphasis in original). The court also found that the use of state law did not conflict with the ultimate goal of the CWA, since in each case the objective was to decrease the level of pollution. Ibid.

The District Court certified its decision for interlocutory appeal, see 28 U. S. C. § 1292(b) (1982 ed., Supp. III), and the Court of Appeals for the Second Circuit affirmed for the reasons stated by the District Court. 776 F. 2d 55, 56 (1985) (per curiam). We granted certiorari to resolve the circuit conflict on this important issue of federal pre-emption. 475 U. S. 1081 (1986). We now affirm the denial of IPC’s motion to dismiss, but reverse the decision below to the extent it permits the application of Vermont law to this litigation. We hold that when a court considers a state-law claim concerning interstate water pollution that is subject to the CWA, the court must apply the law of the State in which the point source is located.

II

A brief review of the regulatory framework is necessary to set the stage for this case. Until fairly recently, federal common law governed the use and misuse of interstate water. See, e. g., Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 110 (1938) (water apportionment); Missouri v. Illinois, 200 U. S. 496 (1906) (water pollution). This principle was called into question in the context of water pollution in 1971, when the Court suggested in dicta that an interstate dispute between a State and a private company should be resolved by reference to state nuisance law. Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 499, n. 3 (1971) (“[A]n action such as this, if otherwise cognizable in federal district court, would have to be adjudicated under state law”) (citing Erie R. Co. v. Tompkins, 304 U. S. 64 (1938)).

We had occasion to address this issue in the first of two Supreme Court cases involving the dispute between Illinois and Milwaukee. In Milwaukee I, the State moved for leave to file an original action in this Court, seeking to enjoin the city from discharging sewage into Lake Michigan. Illinois v. Milwaukee, 406 U. S. 91 (1972). The Court’s opinion in that case affirmed the view that the regulation of interstate water pollution is a matter of federal, not state, law, thus overruling the contrary suggestion in Wyandotte. 406 U. S., at 102, n. 3. The Court was concerned, however, that the existing version of the Act was not sufficiently comprehensive to resolve all interstate disputes that were likely to arise. Milwaukee I therefore held that these cases should be resolved by reference to federal common law; the implicit corollary of this ruling was that state common law was preempted. See id., at 107, n. 9; Milwaukee III, 731 F. 2d, at 407. The Court noted, though, that future action by Congress to regulate water pollution might pre-empt federal common law as well. 406 U. S., at 107.

Congress thereafter adopted comprehensive amendments to the Act. We considered the impact of the new legislation when Illinois and Milwaukee returned to the Court several years later. Milwaukee v. Illinois, 451 U. S. 304 (1981) (Milwaukee II). There the Court noted that the amendments were a “ ‘complete rewriting’ ” of the statute considered in Milwaukee I, and that they were “ ‘the most comprehensive and far reaching’ ” provisions that Congress ever had passed in this area. 451 U. S., at 317-318 (citations to legislative history omitted). Consequently, the Court held that federal legislation now occupied the field, pre-empting all federal common law. The Court left open the question of whether injured parties still had a cause of action under state law. Id., at 310, n. 4. The case was remanded for further consideration; the result on remand was the decision of the Court of Appeals for the Seventh Circuit in Milwaukee III, discussed swpra.

One of the primary features of the 1972 amendments is the establishment of the National Pollutant Discharge Elimination System (NPDES), a federal permit program designed to regulate the-discharge of polluting effluents. 33 U. S. C. § 1342; see generally EPA v. California ex rel. State Water Resources Control Board, 426 U. S. 200, 205-208 (1976) (describing NPDES system). Section 301(a) of the Act, 33 U. S. C. § 1311(a), generally prohibits the discharge of any effluent into a navigable body of water unless the point source has obtained an NPDES permit from the Environmental Protection Agency (EPA). The permits contain detailed effluent limitations, and a compliance schedule for the attainment of these limitations.

The amendments also recognize that the States should have a significant role in protecting their own natural resources. 33 U. S. C. § 1251(b). The Act provides that the Federal Government may delegate to a State the authority to administer the NPDES program with respect to point sources located within the State, if the EPA Administrator determines that the proposed state program complies with the requirements set forth at 33 U. S. C. § 1342(b). The Administrator retains authority, however, to block the issuance of any permit to which he objects. § 1342(d). Even if the Federal Government administers the permit program, the source State may require discharge limitations more stringent than those required by the Federal Government. See 40 CFR § 122.1(f) (1986). Before the Federal Government may issue an NPDES permit, the Administrator must obtain certification from the source State that the proposed discharge complies with the State’s technology-based standards and water-quality-based standards. 33 U. S. C. § 1341(a)(1). The CWA therefore establishes a regulatory “partnership” between the Federal Government and the source State.

While source States have a strong voice in regulating their own pollution, the CWA contemplates a much lesser role for States that share an interstate waterway with the source (the affected States). Even though it may be harmed by the discharges, an affected State only has an advisory role in regulating pollution that originates beyond its borders. Before a federal permit may be issued, each affected State is given notice and the opportunity to object to the proposed standards at a public hearing. 33 U. S. C. § 1341(a)(2); Milwaukee III, supra, at 412. An affected State has similar rights to be consulted before the source State issues its own permit; the source State must send notification, and must consider the objections and recommendations submitted by other States before taking action. § 1342(b). Significantly, however, an affected State does not have the authority to block the issuance of the permit if it is dissatisfied with the proposed standards. An affected State’s only recourse is to apply to the EPA Administrator, who then has the discretion to disapprove the permit if he concludes that the discharges will have an undue impact on interstate waters. § 1342(d)(2). Also, an affected State may not establish a separate permit system to regulate an out-of-state source. See § 1342(b) (State may establish permit system for waters “within its jurisdiction”) (emphasis added), Lake Erie Alliance for Protection of Coastal Corridor v. U. S. Army Corps of Engineers, 526 F. Supp. 1063, 1074-1075 (WD Pa. 1981), aff’d, 707 F. 2d 1392 (CA3), cert. denied, 464 U. S. 915 (1983); State v. Champion International Corp., 709 S. W. 2d 569 (Tenn. 1986), cert. pending, No. 86-57. Thus the Act makes it clear that affected States occupy a subordinate position to source States in the federal regulatory program.

H — 4 hH HH

With this regulatory framework in mind, we turn to the question presented: whether the Act pre-empts Vermont common law to the extent that law may impose liability on a New York point source. We begin the analysis by noting that it is not necessary for a federal statute to provide explicitly that particular state laws are pre-empted. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 713 (1985). Although courts should not lightly infer pre-emption, it may be presumed when the federal legislation is “sufficiently comprehensive to make reasonable the inference that Congress ‘left no room’ for supplementary state regulation.” Ibid, (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)). In addition to express or implied pre-emption, a state law also is invalid to the extent that it “actually conflicts with a . . . federal statute.” Ray v. Atlantic Richfield Co., 435 U. S. 151, 158 (1978). Such a conflict will be found when the state law “‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’” Hillsborough County v. Automated Medical Laboratories, Inc., supra, at 713 (quoting Hines v. Davidowitz, 312 U. S. 52, 67 (1941)).

A

As we noted in Milwaukee II, Congress intended the 1972 Act amendments to “establish an all-encompassing program of water pollution regulation.” 451 U. S., at 318. We observed that congressional “views on the comprehensive nature of the legislation were practically universal.” Id., at 318, n. 12 (citing legislative history). An examination of the amendments amply supports these views. The Act applies to all point sources and virtually all bodies of water, and it sets forth the procedures for obtaining a permit in great detail. The CWA also provides its own remedies, including civil and criminal fines for permit violations, and “citizen suits” that allow individuals (including those from affected States) to sue for injunctions to enforce the statute. In light of this pervasive regulation and the fact that the control of interstate pollution is primarily a matter of federal law, Milwaukee I, 406 U. S., at 107, it is clear that the only state suits that remain available are those specifically preserved by the Act.

Although Congress intended to dominate the field of pollution regulation, the saving clause negates the inference that Congress “left no room” for state causes of action. Respondents read the language of the saving clause broadly to preserve both a State’s right to regulate its waters, 33 U. S. C. § 1370, and an injured party’s right to seek relief under “any statute or common law, ” § 1365(e) (emphasis added). They claim that this language and selected portions of the legislative history compel the inference that Congress intended to preserve the right to bring suit under the law of any affected State. We cannot accept this reading of the Act.

To begin with, the plain language of the provisions on which respondents rely by no means compels the result they seek. Section 505(e) merely says that “[n]othing in this section,” i. e., the citizen-suit provisions, shall affect an injured party’s right to seek relief under state law; it does not purport to preclude pre-emption of state law by other provisions of the Act. Section 510, moreover, preserves the authority of a State “with respect to the waters (including boundary waters) of such Stat[e].” This language arguably limits the effect of the clause to discharges flowing directly into a State’s own waters, i. e., discharges from within the State. The savings clause, then, does not preclude pre-emption of the law of an affected State.

Given that the Act itself does not speak directly to the issue, the Court must be guided by the goals and policies of the Act in determining whether it in fact pre-empts an action based on the law of an affected State. Cf. City of Rome v. United States, 446 U. S. 156, 199 (1980) (Powell, J., dissenting) (“We resort to legislative materials only when the congressional mandate is unclear on its face”). After examining the CWA as a whole, its purposes and its history, we are convinced that if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the “full purposes and objectives of Congress.” See Hillsborough County v. Automated Medical Laboratories, Inc., supra, at 713. Because we do not believe Congress intended to undermine this carefully drawn statute through a general saving clause, we conclude that the CWA precludes a court from applying the law of an affected State against an out-of-state source.

B

In determining whether Vermont nuisance law “stands as an obstacle” to the full implementation of the CWA, it is not enough to say that the ultimate goal of both federal and state law is to eliminate water pollution. A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach this goal. See Michigan Canners & Freezers Assn. v. Agricultural Marketing & Bargaining Bd., 467 U. S. 461, 477 (1984). In this case the application of Vermont law against IPC would allow respondents to circumvent the NPDES permit system, thereby upsetting the balance of public and private interests so carefully addressed by the Act.

By establishing a permit system for effluent discharges, Congress implicitly has recognized that the goal of the CWA — elimination of water pollution — cannot be achieved immediately, and that it cannot be realized without incurring costs. The EPA Administrator issues permits according to established effluent standards and water quality standards, that in turn are based upon available technology, 33 U. S. C. § 1314, and competing public and industrial uses, § 1312(a). The Administrator must consider the impact of the discharges on the waterway, the types of effluents, and the schedule for compliance, each of which may vary widely among sources. If a State elects to impose- its own standards, it also must consider the technological feasibility of more stringent controls. Given the nature of these complex decisions, it is not surprising that the Act limits the right to administer the permit system to the EPA and the source States. See § 1342(b).

An interpretation of the saving clause that preserved actions brought under an affected State’s law would disrupt this balance of interests. If a New York source were liable for violations of Vermont law, that law could effectively override both the permit requirements and the policy choices made by the source State. The affected State’s nuisance laws would subject the point source to the threat of legal and equitable penalties if the permit standards were less stringent than those imposed by the affected State. Such penalties would compel the source to adopt different control standards and a different compliance schedule from those approved by the EPA, even though the affected State had not engaged in the same weighing of the costs and benefits. This case illustrates the problems with such a rule. If the Vermont court ruled that respondents were entitled to the full amount of damages and injunctive relief sought in the complaint, at a minimum IPC would have to change its methods of doing business and controlling pollution to avoid the threat of ongoing liability. In suits such as this, an affected-state court also could require the source to cease operations by ordering immediate abatement. Critically, these liabilities would attach even though the source had complied fully with its state and federal permit obligations. The inevitable result of such suits would be that Vermont and other States could do indirectly what they could not do directly — regulate the conduct of out-of-state sources.

Application of an affected State’s law to an out-of-state source also would undermine the important goals of efficiency and predictability in the permit system. The history of the 1972 amendments shows that Congress intended to establish “clear and identifiable” discharge standards. See S. Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499. As noted above, under the reading of the saving clause proposed by respondents, a source would be subject to a variety of common-law rules established by the different States along the interstate waterways. These nuisance standards often are “vague” and “indeterminate.” The application of numerous States’ laws would only exacerbate the vagueness and resulting uncertainty. The Court of Appeals in Milwaukee III identified the problem with such an irrational system of regulation:

“For a number of different states to have independent and plenary regulatory authority over a single discharge would lead to chaotic confrontation between sovereign states. Dischargers would be forced to meet not only the statutory limitations of all states potentially affected by their discharges but also the common law standards developed through case law of those states. It would be virtually impossible to predict the standard for a lawful discharge into an interstate body of water. Any permit issued under the Act would be rendered meaningless.” 731 F. 2d, at 414.

It is unlikely — to say the least — that Congress intended to establish'such a chaotic regulatory structure.

Nothing in the Act gives each affected State this power to regulate discharges. The CWA carefully defines the role of both the source and affected States, and specifically provides for a process whereby their interests will be considered and balanced by the source State and the EPA. This delineation of authority represents Congress’ considered judgment as to the best method of serving the public interest and reconciling the often competing concerns of those affected by the pollution. It would be extraordinary for Congress, after devising an elaborate permit system that sets clear standards, to tolerate common-law suits that have the potential to undermine this regulatory structure.

C

Our conclusion that Vermont nuisance law is inapplicable to a New York point source does not leave respondents without a remedy. The CWA precludes only those suits that may require standards of effluent control that are incompatible with those established by the procedures set forth in the Act. The saving clause specifically preserves other state actions, and therefore nothing in the Act bars aggrieved individuals from bringing a nuisance claim pursuant to the law of the source State. By its terms the CWA allows States such as New York to impose higher standards on their own point sources, and in Milwaukee II we recognized that this authority may include the right to impose higher common-law as well as higher statutory restrictions. 451 U. S., at 328 (suggesting that “States may adopt more stringent limitations . . . through state nuisance law, and apply them to in-state dischargers”); see also Committee for Jones Falls Sewage System v. Train, 539 F. 2d 1006, 1009, and n. 9 (CA4 1976) (CWA preserves common-law suits filed in source State).

An action brought against IPC under New York nuisance law would not frustrate the goals of the CWA as would a suit governed by Vermont law. First, application of the source State’s law does not disturb the balance among federal, source-state, and affected-state interests. Because the Act specifically allows source States to impose stricter standards, the imposition of source-state law does not disrupt the regulatory partnership established by the permit system. Second, the restriction of suits to those brought under source-state nuisance law prevents a source from being subject to an indeterminate number of potential regulations. Although New York nuisance law may impose separate standards and thus create some tension with the permit system, a source only is required to look to a single additional authority, whose rules should be relatively predictable. Moreover, States can be expected to take into account their own nuisance laws in setting permit requirements.

IPC asks the Court to go one step further and hold that all state-law suits also must be brought in source-state courts. As petitioner cites little authority or justification for this position, we find no basis for holding that Vermont is an improper forum. Simply because a cause of action is preempted does not mean that judicial jurisdiction over the claim is affected as well; the Act pre-empts laws, not courts. In the absence of statutory authority to the contrary, the rule is settled that a district court sitting in diversity is competent to apply the law of a foreign State.

I — I <J

The District Court correctly denied IPC’s motion for summary judgment and judgment on the pleadings. Nothing in the Act prevents a court sitting in an affected State from hearing a common-law nuisance suit, provided that jurisdiction otherwise is proper. Both the District Court and the Court of Appeals erred, however, in concluding that Vermont law governs this litigation. The application of affected-state laws would be incompatible with the Act’s delegation of authority and its comprehensive regulation of water pollution. The Act pre-empts state law to the extent that the state law is applied to an out-of-state point source.

The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Brennan,

with whom Justice Marshall and Justice Blackmun join, concurring in part and dissenting in part.

I concur wholeheartedly in the Court’s judgment that the Clean Water Act (Act), 33 U. S. C. §1251 et seq., does not pre-empt a private nuisance suit filed in a Vermont court when the source of the alleged injury is located in New York. I disagree only with the Court’s view that a Vermont court must apply New York nuisance law.

1 — (

The question presented is whether the District Court properly denied International Paper Company’s motion to dismiss. The Court concludes that a federal district court, sitting in the State where the injury occurred, may hear a common-law nuisance suit to redress interstate water pollution and that the district court must apply the law of the State in which the point source is located. The Court improperly reaches out to decide the latter issue. As far as the parties and the Court know, “Vermont law and New York law are identical on the question of private nuisance.” Tr. of Oral Arg. 24. Moreover, Vermont is the only State to share Lake Champlain with New York. Thus, the nuisance laws of New York and Vermont are the sole candidates for application in the present case, and they do not conflict. The respondents do not base their claims on any particular state law — “[t]he Complaint in this matter does not specify the jurisdiction of the common law it invokes or make a choice of law.” Plaintiffs’ Supplemental Memorandum of Law in Opposition to Defendant’s Motion to Dismiss in No. 78-163, p. 4. Given these facts, I find it necessary only to affirm the denial of International Paper Company’s motion to dismiss.

I — I

Even were I to reach the issue of the state law applicable in this case, I would not interpret the Act to require a court sitting in the State where the injury has occurred (affected State) to apply the nuisance law of the State from which the pollution emanates (source State). Nothing in the Act preempts the usual two-step analysis undertaken by federal district courts to determine which state tort law should be applied in interstate tort suits. First, the district court must apply the conflict-of-law rules of the State in which the court sits. See Day & Zimmerman, Inc. v. Challoner, 423 U. S. 3, 4 (1975); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, 496 (1941) (holding that Erie doctrine applies to conflict-of-law rules). Thus, the Vermont District Court should apply the conflict-of-law rules of Vermont, the affected State. Second, these conflict-of-law principles must be interpreted by the district court to determine whether the tort law of the source State or the affected State should be applied. Today the Court finds that the application of Vermont’s nuisance law is pre-empted even if Vermont’s conflict-of-law rules determine that Vermont’s tort law should be applied.

The Act provides no support for deviation from well-settled conflict-of-law principles. Under conflict-of-law rules, the affected State’s nuisance law may be applied when the purpose of the tort law is to ensure compensation of tort victims. “[I]t is beyond dispute” that affected States have “a significant interest in redressing injuries that actually occur within the State.” Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 776 (1984); see also Allstate Ins. Co. v. Hague, 449 U. S. 302, 307 (1981); Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 442 (1960). This traditional interest of the affected State, involving the health and safety of its citizens, is protected by providing for application of the affected State’s own tort laws in suits against the source State’s polluters. See Askew v. American Waterways Operators, Inc., 411 U. S. 325, 343 (1973); Watson v. Employers Liability As surance Corp., 348 U. S. 66, 72-73 (1954); Young v. Masa, 289 U. S. 253, 258-259 (1933). The State’s interest in applying its own tort laws cannot be superseded by a federal act unless that was the clear and manifest purpose of Congress. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 248, 255 (1984); Milwaukee v. Illinois, 451 U. S. 304, 316 (1981) (Milwaukee II).

Here Congress preserved the rights of source States and affected States alike to enforce state common-law claims. Section 510 provides: “Except as expressly provided . . . , nothing in this chapter shall... be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States.” 33 U. S. C. § 1370 (emphasis added). In preserving the right to seek traditional common-law relief, the Act draws no distinction between interstate and intrastate disputes; § 505(e) states: “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief.” § 1365(e). This provision contains no “express” restriction on the normal operation of state law, reflecting the Act’s policy “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution . . . .” § 1251(b).

By contrast, where Congress wanted to affect state common-law rights, it expressly stated this intent in the Act. Congress chose to pre-empt state law “only where the situation warranted it based upon the urgent need for uniformity such as in section 312(f) relating to marine sanitation devices.” H. R. Rep. No. 92-911, p. 136 (1972), 1 Legislative History of the Water Pollution Control Act of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 823 (1973) (hereinafter Leg. Hist.).

I find that the Act’s plain language clearly indicates that Congress wanted to leave intact the traditional right of the affected State to apply its own tort law when its residents are injured by an out-of-state polluter.

I — I

The Court argues that, although the Act does not explicitly state that the affected States’ laws are pre-empted here, applying the law of an affected State against an out-of-state source stands as an obstacle to the full implementation of the Act. The Court contends application of an affected State’s common law is contrary to subsidiary objectives of the Act: (1) establishing the right of source States to set effluent standards for in-state polluters, ante, at 489-490; and (2) establishing clear and identifiable discharge standards, ante, at 496. The Court concludes that the affected State’s common law is pre-empted by implication because of these conflicts. Although the Court plausibly argues that it is offering a better administrative approach, I do not believe that Congress meant to alter state law in this manner.

As a threshold matter, the Court’s opinion assumes that in enacting the Act, Congress valued administrative efficiency more highly than effective elimination of water pollution. Yet there is no evidence that Congress ever made such a choice. Instead, the Act reflects Congress’ judgment that a rational permit system, operating in tandem with existing state common-law controls, would best achieve the Act’s primary goal of controlling water pollution. I base this conclusion on four important considerations.

First, since Congress preserved state common-law rights “[ejxcept as expressly provided,” supra, at 503, the Court’s reliance upon pre-emption by implication cannot justify its conclusion. Cf. Silkwood v. Kerr-McGee Corp., supra, at 255 (“Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted”).

Second, the legislative history of the Act indicates that Congress saw no peril to the Act in permitting the application of traditional principles of state law. The Senate Committee Report noted that Congress meant “specifically [to] preserve any rights or remedies under any other law. Thus, if damages could be shown, other remedies would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages.” S. Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499 (emphasis added). The majority’s concern that tort liability might undercut permit requirements was thus not shared by Congress.

In addition, the Environmental Protection Agency’s (EPA) interpretation is consistent with Congress’ view that state tort remedies were supplemental and wholly preserved under the Act. The regulations promulgated by the EPA recognize that meeting the source State’s minimum effluent limits does not convey “any exclusive privilege.” 40 CFR § 122.5(b) (1986). The EPA did not interpret the Act to modify state or local law: “The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or regulations.” § 122.5(c).

Third, we have refused to pre-empt a State’s law, even when it is contrary to subsidiary objectives concerning administration, if the State’s law furthers the federal statute’s primary purpose and is consistent with the Act’s saving of States’ authority in an area traditionally regulated by States. See Pacific Gas & Electric Co. v. Energy Resources Con servation and Development Comm’n, 461 U. S. 190, 221-223 (1983). Subjecting polluters to state common-law liability simultaneously promotes the main federal goal of eliminating water pollution entirely, 33 U. S. C. § 1251(a)(1), and obeys the congressional command to leave state common law intact. Here Congress intended to stand by its federal regulatory scheme and the State’s traditional liability laws “and to tolerate whatever tension there was between them.” Silkwood v. Kerr-McGee Corp., 464 U. S., at 256. “Given this statutory scheme, it is for Congress to rethink the division of regulatory authority in light of its possible exercise by States to undercut a federal objective. The courts should not assume the role which our system assigns to Congress.” Pacific Gas & Electric Co. v. Energy Resources Conservation and Development Comm’n, supra, at 223.

Finally, the Court overstates any conflict between the affected State’s nuisance law and the subsidiary objectives of the Act. The Court contends that applying the affected State’s law would violate the source State’s right to set effluent standards for in-state polluters. But if traditional conflict-of-law rules require the application of the affected State’s nuisance law, there is no “conflict” with the source State’s ability to set the minimum standards required under the Act. Congress considered state common-law rights to be supplementary to, and not in conflict with, the Act unless they embodied a “less stringent” standard for polluters than the federal effluent standards. See H. R. Rep. No. 92-911, pp. 169-170 (1972), 1 Leg. Hist. 856-857. The application of an affected State’s common-law remedies to an out-of-state polluter does not conflict with the Act because it is possible for the polluter to redress the injuries suffered by the victims of the pollution and to obey the source State’s effluent standards. By complying with the most stringent requirement— either under the Act or the affected State’s law — the polluter necessarily complies with the more lenient standards. See Silkwood v. Kerr-McGee Corp., supra, at 257.

The Court also argues that application of an affected State’s law to an out-of-state source would undermine the important goals of efficiency and predictability in the permit system. But Congress set out to establish “clear and identifiable” discharge standards, S. Kep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499; it did not intend to reform the “impenetrable jungle” of state nuisance law, see ante, at 496, n. 17. As both legislative history and EPA regulations indicate, compliance with effluent standards is not a defense to state tort suits, see ante, at 496, and the affected State’s nuisance law is no more “vague” and “indeterminate” than the source State’s nuisance law. In fact, in the instant case, Vermont and New York nuisance law are apparently identical. See supra, at 501. While Congress intended to impose identifiable federal discharge standards upon polluters, we must have much more explicit evidence before assuming that in enacting such a provision Congress meant to revolutionize state conflict-of-law or tort law principles.

hH <1

Even if the Court’s conclusion that New York law should apply is correct, it does not logically follow that New York nuisance law must be applied in this case. In its haste to reach this result, the Court assumes that the imposition of the New York nuisance standard would be required by New York law in a suit where the alleged injury occurred in Vermont: “Because the Act specifically allows source States to impose stricter standards, the imposition of source-state law does not disrupt the regulatory partnership established by the permit system. ... New York nuisance law may impose separate standards . . . .” Ante, at 499 (emphasis added).

Whether New York law requires the application of New York or Vermont nuisance law depends on an interpretation of New York law pertaining to conflict of laws. “A state has the same freedom to adopt its own rules of Conflict of Laws as it has to adopt any other rules of law. Conflict of Laws rules, when adopted, become as definitely a part of the law as any other branch of the state’s law.” Restatement (Second) of Conflict of Laws §5, Comment a, p. 9 (1971). The Court reasons that a source State must have the primary role in regulating its own pollution discharges. Under this logic, nothing prevents a source State’s legislature or courts from choosing to impose, under conflict-of-law principles, the affected State’s nuisance law in a case such as this. A source State is free to adopt an affected State’s standards as its own standards, ante, at 490 (noting that source State can accept advice of affected State).

The District Court correctly denied the petitioner’s motion for summary judgment and judgment on the pleadings. For the reasons indicated above, I would affirm without reaching the question of the state law applicable in this case.

Justice Stevens,

with whom Justice Blackmun joins, concurring in part and dissenting in part.

In affirming the denial of International Paper Company’s motion to dismiss, the Court concludes that nothing in the Clean Water Act, 33 U. S. C. § 1251 et seq., deprives a Federal District Court of the diversity jurisdiction it would otherwise have to entertain a common-law nuisance suit brought against a point source located in another State and based on an injury allegedly suffered in the forum State. I agree with that holding and find it sufficient to decide this case.

The Court, however, goes further and ventures its opinion on whether the District Court must apply the substantive law of the State in which the source of water pollution is located. Perhaps the Court is responding to the District Court’s observation, affirmed by the Court of Appeals, that the Clean Water Act “authorizes actions to redress injury caused by water pollution of interstate waters under the common law of the state in which the injury occurred.” 602 F. Supp. 264, 274 (Vt. 1985). But since the District Court has not yet been asked to decide — or decided — which substantive law will govern this particular suit, there is no dispute between the parties on this issue and the Court has no business discussing it at this stage of the litigation. In its rush to express the opinion that the substantive law of the source State must govern, the Court broadly asserts that “[t]he Act preempts state law to the extent that the state law is applied to an out-of-state point source.” Ante, at 500. But on this record, the Court does not even know whether Vermont state law, including its choice-of-law rules, would look to the New York law of nuisance to govern a nuisance suit based on an alleged source in New York.

The Court’s opinion is thus partially advisory for three reasons. The question of the applicable state law it addresses has not yet arisen in this litigation; when it does arise, the District Court may well conclude that Vermont’s choice-of-law rules require it to apply New York’s substantive law; and, as Justice Brennan points out, ante, at 501, there is no reason to believe that there is any difference between the relevant New York and Vermont law in any event. One cannot help but wonder what has happened to the once respected doctrine of judicial restraint. Just as this Court does not sit to edit the opinions of lower courts, see Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 823 (1985) (Stevens, J., concurring in part and dissenting in part), it also does not sit to draft advisory opinions for the possible future guidance of other courts. I therefore respectfully dissent from that part of the Court’s opinion holding that the Clean Water Act requires the District Court to apply the nuisance law of the source State.

       The statute also is known as the Federal Water Pollution Control Act. See note following 33 U. S. C. § 1251.

       The complaint also sought monetary and injunctive relief for air pollution allegedly caused by the IPC mill. App. 35-36. This claim is not before the Court.

       The decisions in Illinois v. Milwaukee, 406 U. S. 91 (1972) (Milwaukee I), and Milwaukee v. Illinois, 451 U. S. 304 (1981) (Milwaukee II), are discussed in Part II, infra.

       A “point source” is defined by the CWA as “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” 33 U. S. C. § 1362(14); see 40 CFR § 122.2 (1986). It is not disputed that IPC is a point source within the meaning of the Act.

       For a discussion of each of the three interpretations of the saving clause, see Note, City of Milwaukee v. Illinois: The Demise of the Federal Common Law of Water Pollution, 1982 Wis. L. Rev. 627, 664-671.

       While the Act purports to regulate only “navigable waters,” this term has been construed expansively to cover waters that are not navigable in the traditional sense. See United States v. Riverside Bayview Homes, 474 U. S. 121 (1985); 38 U. S. C. § 1362(7) (defining navigable waters as “waters of the United States”); 118 Cong. Rec. 33756-33757 (1972), 1 Legislative History of Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 250 (1973) (hereinafter Leg. Hist.).

       Accord, North Dakota v. Minnesota, 263 U. S. 365 (1923); cf. Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) (air pollution); see also Milwaukee I, 406 U. S., at 104-107; Glicksman, Federal Preemption and Private Legal Remedies for Pollution, 134 U. Pa. L. Rev. 121, 152-155 (1985); Note, 1982 Wis. L. Rev., at 630-636.

       Although the Court’s opinion could be read as distinguishing rather than overruling that part of Wyandotte, a later decision made it clear that state common-law actions did not survive Milwaukee I. See Milwaukee II, 451 U. S., at 327, n. 19; see also Glicksman, supra, at 156, n. 176.

       In Milwaukee I the Court denied a motion to file an original áction but ruled that Illinois could maintain an action in federal district court. The State then filed suit in Illinois District Court, alleging that the city was liable for creating a public nuisance under both federal and Illinois common law. The complaint also alleged a violation of the State Environmental Protection Act. See Milwaukee II, supra, at 310, and n. 4; Milwaukee III, 731 P. 2d, at 404.

       For a more detailed description of the permit system, see R. Zener, Guide to Federal Environmental Law 61-88 (1981).
      At one point IPC was operating under a federal NPDES permit. App. 29-30. A draft of the permit was submitted to Vermont as an affected State, and Vermont as well as other interested parties objected to the proposed discharge standards. Id., at 65-66. Thereafter, New York obtained permitting authority under 33 U. S. C. § 1342(b) and it now administers the permit.

       See Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947) (“[W]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress”); Milwaukee II, 451 U. S., at 312; see also Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 255 (1984).

       See 33 U. S. C. §§ 1319(a), 1365(a), (h); see generally Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 13-14 (1981) (discussing “elaborate” remedial provisions).

       A Senate Report accompanying the amendments states: “[I]f damages could be shown, other remedies [in addition to a citizen suit] would remain available. Compliance with requirements under this Act would not be a defense to a common law action for pollution damages.” S. Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499. Respondents also note that after reviewing the legislative history, the District Court found no evidence that Congress intended to alter the traditional tort law principle that a party may bring suit in the State where the injury occurred. See Young v. Masci, 289 U. S. 253, 258-259 (1933).

       We noted in Milwaukee II:

      “The fact that the language of [the saving clause] is repeated in haec verba in the citizen-suit provisions of a vast array of environmental legislation . . . indicates that it does not reflect any considered judgment about what other remedies were previously available or continue to be available under any particular statute.” 451 U. S., at 329, n. 22.

       The interpretation of the Act adopted by the courts below also would have the result of allowing affected States effectively to set discharge standards without consulting with the source State, even though source States are required by the Act to give affected States an opportunity to be heard and a chance to comment before issuing a permit.

       "The citizen suit provision [§ 505] is consistent with principles underlying the . . . Act, [which are] the development of clear and identifiable requirements. Such requirements should provide manageable and precise benchmarks for performance.” S. Rep. No. 92-414, p. 81 (1971), 2 Leg. Hist. 1499.

       See Milwaukee II, 451 U. S., at 317; see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 616 (5th ed. 1984) (“There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance’ ”). The possibility that a source will have to meet a number of different standards is relatively small in this case, since Vermont is the only State that shares Lake Champlain with New York. But consider, for example, a plant that discharges effluents into the Mississippi River. A source located in Minnesota theoretically could be subject to the nuisance laws of any of the nine downstream States.

       Nothing in our decision, of course, affects respondents’ right to pursue remedies that may be provided by the Act. If, as was also alleged in respondents’ complaint, IPC is violating the terms of its permit, respondents may bring a citizen suit to compel compliance. 33 U. S. C. § 1365. Respondents also had the opportunity to protect their interests before the fact by commenting and objecting to the proposed standard. See Milwaukee II, supra, at 326 (Act provides “ample” opportunity for affected States to protect their rights).

       The District Court concluded that the interference with the Act is insignificant, in part because respondents are seeking to be compensated for a specific harm rather than trying to “regulate” IPC. 602 F. Supp. 264, 271-272 (Vt. 1985). The Solicitor General, on behalf of the United States as amicus curiae, adopts only a portion of this view. He acknowledges that suits seeking punitive or injunctive relief under affected-state law should be pre-empted because of the interference they cause with the CWA. The Government asserts that compensatory damages actions, however, may be brought under the law of the State where the injury occurred. The Solicitor General reasons that compensatory damages only require the source to pay for the external costs created by the pollution, and thus do not “regulate” in a way inconsistent with the Act. The Government cites Silkwood v. Kerr-McGee Corp., 464 U. S. 238 (1984), for the proposition that in certain circumstances a court may find pre-emption of some remedies and not others.
      We decline the Government’s invitation to draw a line between the types of relief sought. There is no suggestion of such a distinction in either the Act or the legislative history. As the Court noted in Silkwood, unless there is evidence that Congress meant to “split” a particular remedy for pre-emption purposes, it is assumed that the full cause of action under state law is available (or as in this case, pre-empted). Id., at 255. We also think it would be unwise to treat compensatory damages differently under the facts of this case. If the Vermont court determined that respondents were entitled only to the requested compensatory relief, IPC might be compelled to adopt different or additional means of pollution control from those required by the Act, regardless of whether the purpose of the relief was compensatory or regulatory. See Perez v. Campbell, 402 U. S. 637, 651-652 (1971) (effect rather than purpose of a state statute governs pre-emption analysis). As discussed, this result would be irreconcilable with the CWA’s exclusive grant of authority to the Federal Government and the source State. Cf. Chicago & North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U. S. 311, 324-325 (1981).

       Although we conclude that New York law generally controls this suit, we note that the pre-emptive scope of the CWA necessarily includes all laws that are inconsistent with the “full purposes and objectives of Congress.” See Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 713 (1985). We therefore do not agree with the dissent that Vermont nuisance law still may apply if the New York choice-of-law doctrine dictates such a result. Post, at 507-508. As we have discussed, supra, the application of affected-state law would frustrate the carefully prescribed CWA regulatory system. This interference would occur, of course, whether affected-state law applies as an original matter, or whether it applies pursuant to the source State’s choice-of-law principles. Therefore if, and to the extent, the law of a source State requires the application of affected-state substantive law on this particular issue, it would be pre-empted as well.

       Cf. 33 U. S. C. § 1365(c)(1) (citizen suit to enforce permit must be brought in judicial district where source is located).

       States have adopted two different conflict-of-law approaches to determine which state tort law should be applied. The traditional rule of lex loci delicti requires the application of the tort law of the jurisdiction where the injury occurred. See 19 N. Y. Jur. 2d, Conflict of Laws § 39, p. 623 (1982); E. Scoles & P. Hay, Conflict of Law § 17.7, pp. 560-561 (1982). The rationale for the traditional rule is that the affected State possesses a strong interest in redressing injuries to its citizens. The modern rule, followed by the majority of States, employs an interest-analysis approach. See Allstate Ins. Co. v. Hague, 449 U. S. 302, 309 (1981). Under this analysis, if the primary purpose of the tort rule is to control the tortfeasor’s conduct — such as the setting of pollution discharge standards — then the source State’s tort law may be applied. Alternatively, if the main purpose of the tort rule is compensating victims of the tort, a court may apply the affected State’s tort law. Other relevant considerations include the locations of the parties and where the relationship, if any, between the parties is centered. See Restatement (Second) of Conflict of Laws § 145, and Comment c, pp. 414-416 (1971).

       The Court dismisses the importance of § 505(e) because that section “merely says that ‘[njothing in this section,’ i. e., the citizen-suit provisions, shall affect an injured party’s right to seek relief under state law; it does not purport to preclude pre-emption of state law by other provisions of the Act.” Ante, at 493. But Congress used this language because this is the only section of the Act that expressly implicates private suits. Congress was reemphasizing that a State’s authority over private suits, involving state common law, was not affected by the Act.

       The respondents contend that under both New York and Vermont conflict-of-law principles, Vermont common law would apply to this action. Brief for Respondents 12. Petitioner does not contest this view. If this issue need be determined, it should, in my view, be remanded to the Court of Appeals. See, e. g., Allstate Ins. Co. v. Hague, 449 U. S., at 307; Day & Zimmerman, Inc. v. Challoner, 423 U. S. 3, 5 (1975) (Blackmun, J., concurring); Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487, 492 (1941). It is sufficient for the sake of argument to note that several cases suggest that New York conflict-of-law principles may require that Vermont law be applied in this instance. See, e. g., Bing v. Halstead, 495 F. Supp. 517, 520 (SDNY 1980) (“Where tortious conduct occurs in one jurisdiction and injury in another, as is the case here, the law of the place of injury applies”); Cousins v. Instrument Flyers, Inc., 44 N. Y. 2d 698, 699, 376 N. E. 2d 914, 915 (1978) (“It is true that lex loci delicti remains the general rule in tort cases to be displaced only in extraordinary circumstances”).