saic river resulted in the stream becom- of the sewage, as proposed, would not ing such a menace to the health and pollute the waters of New York bay so property of the adjacent communities as to cause a nuisance to either persons that, in 1896, a commission was appointed by the governor of New Jersey, under the provisions of an act of the legislature, to study the problem presented, for the purpose of devising some system of sewage disposal which would afford relief. After this commission had reported, a second commission of investigation was provided for by act of the legislature in 1897, and its report was followed by a third similar commission in 1898.

ity of the people of the state and the, has a shore line of 25 miles on New value of their property being gravely York bay and on the Hudson river, and menaced, as it is averred that they are by the proposed action of the defendants, the state is the proper party to represent and defend such rights by resort to the remedy of an original suit in this court, under the provisions of the Constitution of the United States. Missouri v. Illinois, 180 U. S. 208, 241, 243, 45 L. ed. 497, 512, 513, 21 Sup. Ct. Rep. 331; Georgia v. Tennessee Copper Co. 206 U. S. 230, 51 L. ed. 1038, 27 Sup. Ct. Rep. 618, 11 Ann. Cas. 488.

Also, for the purpose of showing the responsibility of the state of New Jersey for the proposed action of the defendant, the Passaic Valley Sewerage Commissioners, the bill sets out, with much detail, the acts of the legislature of that state, authorizing and directing such action on their part.

that large cities and towns of that state border upon the bay, so that it has as important an interest as New York has in maintaining the waters free from pollution; that the sewer project objected to was authorized only after it had been recommended and approved by sanitary engineers of highest professional standing and experience, and upon their assurance, after careful study of the tidal flow and currents of the bay, that appreciable pollution would not be caused thereby; that the Passaic river empties into Newark bay, and its water, charged, under existing conditions, with the sewage collected from the same communities intended to be served by the projected sewer, in large part reaches New York bay in the vicinity of Robbins reef light, by natural channels, without causing substantial injury to the water; and that the city of New York has long been discharging into the bay at or near to the shore lines thereof, daily, more than seven times as great a volume of sewage (entirely untreated) as the daily discharge of the proposed sewer would be for many years to come. The answer concludes with further denials that the waters of the bay would be corrupted or their usefulness impaired by the use of the proposed intercepting sewer.

Of this it is sufficient to say that the averments of the bill, quite undenied, show that the defendant Sewerage Commissioners constitute such a statutory, corporate agency of the state that their action, actual or intended, must be treated as that of the state itself, and we shall so regard it. 180 U. S. 208, supra. The remaining essential allegations of the bill are that the defendants are about to construct the sewer we have described, and to discharge the sewage thereby collected into the Upper New York bay, through a single opening 12 feet in diameter, at a point about half a mile north of Robbins reef light; that there would be about 120 millions of gallons of such sewage discharged into the bay every twenty-four hours in 1911, and in excess of 357 millions of gallons by 1940; that such sewage would be carried by the currents and tides into the Hudson and East rivers, and would be deposited on the bottom and shores of the bay, and upon and adjacent to the wharves and docks of New York city, thereby so polluting the water as The projected sewer was described in to render it a public nuisance, offensive this petition of intervention substantialand injurious to persons living near itly as in the original bill, but it was or using it for bathing or for purposes of commerce, damaging to vessels using the waters, and [303] so poisonous to the fish and oysters subsisting within it as to render them unfit for food. To prevent the public nuisance which it is averred would thus be created, a permanent injunction was prayed for.

The essential denials and allegations of the answer are as follows:

Admitting their intention to construct the sewer substantially as described, it is averred: that New Jersey

After the defendants had answered, the government of the United States, by leave of court, filed a petition of intervention. The warrant assigned for this intervention was, the power and duty of the government with respect [304] to navigation and interstate commerce, and the inherent power which it has to act for the protection of the health of government officials and employees at the Brooklyn Navy Yard, and its duty to protect from damage the government property bordering upon New York bay.

averred that the plans for the removal of solids from the sewage were so indefinite and inadequate that the use of the sewer would result in the obstruction of navigation by the filling up and shoaling of the channels of the bay. and that the proposed purification of the sewage was so insufficient that the waters would be rendered unsightly and unhealthful to persons using them for commerce or dwelling upon the adjacent shores. It was averred that there were other, better, and more advanced meth

ods of sewage disposal than those pro- | 1919, that at that time screening and posed, and that the threatened injury to sedimentation and thorough dispersion commerce and navigation, to the public in water through deeply submerged mulhealth and to the property of the United States, was not necessary. For these reasons the government joined in the prayer for relief.

The coming of the government into the case was followed by conferences between its officials and the Sewerage Commissioners, with the result that a method of treatment of the sewage was decided upon much more thorough, comprehensive, and definite in character than had been adopted before, and the manner of dispersion of it at the outlet was so changed as to secure a much greater diffusion, at a great depth, in the adjacent waters.

These changes were ultimately embodied in a stipulation between the United States, acting through its Attorney General, and the Passaic Valley Sewerage Commissioners, acting under authority of a special act of the New Jersey legislature. It was agreed that, upon the filing of this stipulation, properly executed, with the [305] clerk of this court, the petition of intervention of the government should be dismissed, without prejudice,-which was done on May 16, 1910.

tiple outlets was regarded by the most competent authorities as the most approved method of disposing of sewage in large volume.

But, not satisfied with providing what was thought sufficient treatment to render the sewage innocuous, there was incorporated into the stipulation an agreement on the part of the Sewerage Commissioners that, in the actual operation of the sewer, at all times the following [306] results should be secured, either through compliance with the requirements of the stipulation for treatment of the sewage, "or through requisite additional lawful arrangements," viz.: (1) There will be absence in the New York bay of visible suspended particles coming from this sewage; (2) there will be absence of deposits caused by it objectionable to the Secretary of War of the United States; (3) there will be absence of odors due to the putrefaction of organic matter contained in the sewage; (4) there will be absence on the surface of the bay of any grease or color due to the sewage; (5) there will be no injury to the public health due to the discharge of the sewage, and no public or private nuisance will be created thereby; (6) no inju

of the United States situated upon the bay; (7) there shall not be a reduction in the dissolved oxygen content of the waters, due to this sewage, sufficient to interfere with major fish life. It is agreed that the government shall have unrestricted opportunity to inspect the workings of the sewer system, by designated officials, and that full compliance at all times with the provisions of the stipulation referred to shall be made an express condition of any permit issued by the government for the construction, maintenance, or operation of the projected sewer system.

The stipulation provides, with much detail, that at or near to a pumping station to be located in the Newark mead-rious effect shall result to the property ows, near Newark bay, the material coming from the trunk sewer shall first pass through coarse screens to remove floating matter; then through a grit basin or basins, to remove heavy matter, as far as practicable; then through self-cleaning mechanical screens, with openings of not over fo of an inch; and then through sedimentation basins, equipped with "scum boards," at a prescribed velocity of flow. It is provided that the effluent thus screened and settled shall flow into a pumping well, whence it is to be pumped under pressure to a point near Robbins reef light, where it is to be discharged at a depth of not less than 40 feet beneath the surface of the water at mean low tide, through 150 outlets, distributed over an area of 3 acres, and so arranged as to drive the material horizontally across the tidal currents.

The terms of this stipulation were adopted by the government under the advice of Army engineers of high rank, and by the Sewerage Commissioners, on the advice of distinguished sanitary engineers, and it must be accepted as established by the testimony taken in

It is obvious that if the conditions of this stipulation are realized and maintained, there will be no occasion or ground for such an injunction as was prayed for.

It is argued, however, and expert witnesses have testified, that the provisions therein stipulated for screening and sedimentation and final dispersion of the sewage in the water are not sufficient to produce the results which the Sewerage Commissioners agree with the government to produce and maintain, and that if such results as are feared by

the witnesses are produced, it would be, igation to which the government may be impossible to determine whether they a party (R. S. 359, 367), we cannot were caused by this [307] particular doubt that the intervention of the govsewage or by that coming from other ernment was proper in this case, and sources, and that therefore the agree that it was within the authority of the ment would, in practice, be nugatory. Attorney General to agree that the But equally well-informed and credible United States should retire from the witnesses testified that the proposed case upon the terms stated in the stiputreatment would produce the stipulated lation, which were plainly approved by results, and that the source of such pol- the Secretary of War, who afterwards lution, if any should be caused by the embodied them in the construction perPassaic sewage, could readily be traced mit issued to the Sewerage Commissionto its origin, and we think the probabili- ers. ties greatly in favor of this conclusion, having regard to the opportunity secured to the government for inspection and observation of the treatment plant, and for determining the quality and content of effluent before it is discharged into the bay, and the effect which it may have on the water in the immediate vicinity of the outlet.

It is also argued that this stipulation is not binding upon the state of New Jersey because executed only by the Sewerage Commissioners, and that it is invalid for want of power in the Attorney General to so stipulate on behalf of the United States.

But since, by act of its legislature, the state of New Jersey specifically authorized the Sewerage Commissioners to execute the stipulation, and by its special counsel entered of record its approval of and consent to it, we must and do regard it as the valid obligation of the state as certainly as of the Commis

sioners.

Although this stipulation was filed and the government withdrew from the case on May 16, 1910, the remaining parties went forward and took a great volume of testimony, the taking of which was concluded in June, 1913. Five years passed before the case was brought on for argument at the October Term, 1918, and upon examination this court, having regard to the long time which had elapsed since the taking of testimony was closed, and to the rapid advance in sanitary science then in progress, suggested in the record, directed that additional testimony should be taken in order that the court might be advised: (1) As to any practicable modification of the proposed sewer system which might improve it and reduce any polluting effect upon the water which might be caused by the effluent to be discharged; (2) as to any practicable plan or arrangement for sewage disposal which would lessen the pollut ing effect derived from the New York city sewage; (3) and as to the present degree of pollution of the waters of New York harbor, [309] and the change in this respect since the taking of the testimony was closed.

In compliance with this order much additional testimony was taken.

As to the United States. The intervention of the government was allowed upon allegations that the inadequate treatment of the sewage proposed would result in injury to navigation and commerce: by causing deposits of solid matter, to the extent of thousands of tons annually, which would fill up and shallow the channels of the bay; by rendering the port of New York less serviceable and attractive to commerce, and offensive and unwholesome to persons using and living near it; and by causing injury to the hulls of vessels by the character of the effluent to be dis- ties. Before this court can be moved to charged. It was also averred that [308] | practically irreparable damage would be caused to extensive properties owned by the government, adjacent to the bay.

Having regard to the large powers of the government over navigation and commerce, its right to protect adjacent public property and its officers and employees from damage and disease, and to the duty and authority of the Attorney General to control and conduct lit

With the record in this state we come to consider the evidence introduced, but subject to the rule that the burden upon the state of New York of sustaining the allegations of its bill is much greater than that imposed upon a complainant in an ordinary suit between private par

exercise its extraordinary power under the Constitution to control the conduct of one state at the suit of another, the threatened invasion of rights must be of serious magnitude, and it must be established by clear and convincing evidence.

Missouri v. Illinois, 200 U. S. 496, 50 L. ed. 572, 26 Sup. Ct. Rep. 268. The water of New York bay is such a brackish combination of salt sea and fresh water that it could not, under any

943

On the other hand, witnesses of seemingly equal candor and learning, and with large practical experience, called by the defendants, testified that they were confidently of the opinion that the treatment of the sewage provided for in the stipulation with the United States would cause such purification of it that the results guaranteed therein would be fully realized.

circumstances, be used for drinking or fields"-and offensive odors near the other domestic purposes, and, therefore, place of discharge and upon the wharves the reasons given in the bill to justify and shores adjacent to the bay. the injunction prayed for are restricted, as we have seen, to the claims that the addition of the Passaic valley sewage to the already polluted waters of the bay would result in odors offensive and unwholesome to persons bathing in them or passing over them in large vessels or in small boats, or living and working upon the adjacent shores, in causing unsightly deposits on the surface of the water, and chemical action injurious to the wood and metal of vessels navigating the bay, and in rendering fish and oysters taken from such waters unfit for consumption.

as

It is much to be regretted that any forecast as to what the effect would be of the treatment and deeply submerged [311] discharge through multiple outlets proposed for this large volume of sewage must depend almost entirely upon the conflicting opinions of expert witnesses, for experience with such treatment and dispersion under even approximately like conditions seems entirely wanting. It is, however, of much significance that the authorities of the city of New York, after many years of investigation of the subject of sewage disposal, in their latest plans propose to adopt a treatment of screening and sedimentation and dispersal in deep water very similar to, but not so extensive and thorough as, that provided for in the stipulation between the defendants and the United States.

The evidence introduced, as to increase of damaging chemical action upon the hulls of vessels by the proposed addition of sewage, and as to danger from air-borne diseases to persons using the water in boats and vessels, or working or dwelling upon the shore of the bay, is much too meager and indefinite to be seriously considered [3101 ground for an injunction, and when it is considered that, for many years, all of the sewage from the great population of New York city and its environs, and from the large cities on the New Jersey shore (estimated, in 1912, at 900 millions of gallons daily), has been discharged into the harbor, quite unThere is only one point upon which treated, the evidence does not justify all the experts called for the opposing the conclusion that persons bathing in, parties agree, viz., that in the present or that fish or oysters subsisting in, such state of learning upon the subject, the waters, can sustain much further dam- amount of dissolved oxygen in water is age from the addition to them of the the best index or measure of the degree sewage of the Passaic valley, after it to which it is polluted by organic subhas been treated in the manner pro- stances, it seemingly being accepted by posed in the stipulation with the gov-in water depends its capacity for digestthem all that upon the oxygen content

ernment.

There remains to be considered, therefore, only the offensive odors and unsightly deposits on the surface which it is claimed will be caused by the addition of putrescible matter to the water, and it is to this claim that a large part of the evidence introduced by the complainant is directed. Much evidence was introduced tending to prove that sewage collected from so great an area as that of the Passaic Valley Sewerage District would be stale, if not septic, when it reached the treatment plant at Newark bay, and that it would, therefore, hold in solution much organic matter which would not be removed by the screening and sedimentation processes proposed, with the result that it would cause disagreeable deposits on the surface of the water "oily and sleek

ing sewage, that is, for converting orless substances by direct oxidation, and ganic matter into inorganic and harmby sustaining bacteria which assist in

such conversion.

The witnesses agree that so long as there is sufficient dissolved oxygen in the water the process of digestion of the sewage will go forward without producing offensive odors, and that when it sinks below a required percentage of saturation such odors will appear; but, unfortunately, there is a wide divergence of opinion among them as to what the required lower percentage is. The opinions of seemingly well qualified experts vary in giving from 25 per cent to 50 per cent of saturation as the amount of oxygen necessary to prevent the appearance of such offensive odors from decomposition of organic matter.