dissenting:

In this action, originally filed nine years ago, Audubon invokes the federal common law of nuisance to halt the Department of Water and Power’s diversion of fresh water streams. The water the Department currently redirects to Los Angeles would in the normal course flow into Mono Lake. Audubon alleges that this diversion, by lowering the level of the lake, has caused water pollution, in the form of increased salinity of the lakewater, and air pollution, in the form of dust storms rising from the uncovered lake bed. Audubon’s nuisance action is based on this pollution, which Audubon asserts will persist and intensify if the diversion continues. The majority has denied Audubon’s right to present its claims, holding that its water pollution claim is preempted and its air pollution claim is not cognizable.

I agree with the majority that, under Supreme Court precedent, we must hold Audubon’s water pollution claim preempted. However, I disagree with the majority’s analysis of the legal issues affecting Audubon’s air pollution claim and believe that Audubon has a right to pursue that part of its action. The Supreme Court has stated unequivocally that there is an overriding federal interest in clean air and that, consequently, air pollution is governed by federal common law. I believe the existence of this federal interest is sufficient to give Audubon standing to assert its air pollution claim. Moreover, the claim is not preempted by the Clean Air Act, 42 U.S.C. §§ 7401-7642 (1982).

1. Cause of Action for Air Pollution Under Federal Common Law

Federal common law has long been recognized as a source of the federal courts’ authority to protect federal interests. See Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 457 , 77 S.Ct. 912, 918 , 1 L.Ed.2d 972 (1957) (“It is not uncommon for federal courts to fashion federal law where federal rights are concerned.”). “[T]he remedies which Congress provides are not necessarily the only federal remedies available.” Illinois v. City of Milwaukee, 406 U.S. 91, 103 , 92 S.Ct. 1385, 1392 , 31 L.Ed.2d 712 (1972) (“Milwaukee I”). As the majority notes, the cases that necessitate resort to federal common law are few and far between. Majority op. at 1413; *1419 see City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 313-14 , 101 S.Ct. 1784, 1790-91 , 68 L.Ed.2d 114 (1981) ("Milwaukee II”). The majority correctly identifies a critical category of federal common law cases: those in which Congress has spelled out a “uniquely federal interest[ ].” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 , 84 S.Ct. 923, 939 , 11 L.Ed. 804 (1964). The majority errs, however, in assuming that in order to implicate a federal interest, there must also be either a “right or obligation of the United States” or an “interstate dispute implicating the conflicting rights of states.” Majority op. at 1414-15, 1417. The Supreme Court has already identified air quality as a matter of uniquely federal interest. That is a sufficient basis for invoking the federal common law of nuisance.

The existence of a federal interest provided the basis for the Supreme Court’s holding in Milwaukee I allowing plaintiffs to file a common law nuisance claim for water pollution. In that case, the Court stated unequivocally that there is a federal interest in purity of air and water. The Court noted that federal common law applies “where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism.” 406 U.S. at 105 n. 6, 92 S.Ct. at 1393 n. 6. In examining the nature of the federal interest in that case, the Court relied on both water pollution and air pollution cases. See id. at 104, 106-07 , 92 S.Ct. at 1394-95 . The Court concluded, ‘‘When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” Id. at 103, 92 S.Ct. at 1392 (emphasis added). 1 Thus, in the absence of a preemptive federal statute, “federal courts will be empowered to appraise the. equities of the suits alleging creation of a public nuisance” by pollution. Id. at 107 , 92 S.Ct. at 1395 .

The federal interest established by the Supreme Court in Milwaukee I was not affected by its decision in Milwaukee II. The second opinion did not question the existence of a federal interest in clean air and water or repudiate the position taken by the Court in Milwaukee I that air and water pollution are governed (in the absence of an all-encompassing federal statute) by federal common law. It dealt solely with the question of preemption of the water pollution claim as a result of the amendments to the Federal Water Pollution Control Act that were enacted after Milwaukee I. See Milwaukee II, 451 U.S. at 310 n. 4, 101 S.Ct. at 1789 n. 4 (“the issue before us is simply whether federal legislation has supplanted federal common law”). The Court found that by virtue of the 'post-Milwaukee I amendments, Congress had occupied the field in the area of water pollution. The common law claim was therefore precluded. Id. at 317 , 101 S.Ct. at 1792 .

Here, the majority does not contend that Congress has occupied the field with respect to air pollution. See majority op. at 1416. Rather, it mistakenly asserts that there is no federal interest in air pollution warranting the application of federal common law. Id. Its attempt to distinguish Milwaukee I, see id. at 1414-15, is unpersuasive. It is true that Milwaukee I was a water pollution case. But the Milwaukee I Court relied on both water pollution and air pollution cases for a good reason: The Court’s expressed rationale for finding that federal common law governed, namely the need for a uniform rule of decision, applies equally to both types of pollution. The majority does not state any grounds for its apparent belief that there is a uniquely federal interest in preserving the purity of our lakes and streams but not the purity of our air. Nor does it suggest why the first should be subject to uniform federal law and the second to a patchwork of state rules. I do not believe the pronouncements of the Court should be treated so lightly. The Court carefully considered this issue and made its view of the law clear. Where we have no rationale for distinguishing the Court’s position, I believe we should follow its lead. See note 11 infra.

In Milwaukee I the Court declined to assert original jurisdiction but approved *1420 the filing of claims in federal district courts. It appears the Court believed that pollution control techniques must be tailored to local conditions, and also that pollution is a matter primarily for federal rather than state regulation; finally, for purposes of federal common law, the Court equated air and water pollution. The majority’s statement that the federal interest in air quality “does not necessarily involve the authority and duties of the United States as sovereign to the extent that our federal system requires that the controversy be resolved under federal law,” majority op. at 1415-16, is simply and clearly in direct contradiction of the Supreme Court’s statements in Milwaukee 1. 2

Contrary to the majority’s suggestion that the Clean Air Act implicitly recognizes that federal common law is inapplicable, the provisions of that Act serve to demonstrate that there is a uniquely federal interest in air quality. The Clean Air Act is very similar in structure to the Federal Water Pollution Control Act (FWPCA) which was in effect at the time of the Milwaukee I decision. See section 3 infra. In Milwaukee I, the Court examined the history of federal regulation of water pollution, culminating in the FWPCA, and concluded that federal, not state, law controls water pollution. 406 U.S. at 102 , 92 S.Ct. at 1392 . Federal regulation of air pollution under the Clean Air Act is at least as extensive vis-a-vis state regulation as was federal regulation of water pollution under the old FWPCA. For example, for those types of pollutants regulated by the Clean Air Act, it is the federal government, not the states, that establishes national air quality standards. 42 U.S.C. § 7409 (1982); see Milwaukee I, 406 U.S. at 102 , 92 S.Ct. at 1392 (under the FWPCA, “[wjhile the States are given time to establish water quality standards, ... if a State fails to do so the federal administrator promulgates one”). The federal government regulates those air pollutants emitted by mobile and stationary sources that “may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 7408 (a)(1)(A) (1982); see Milwaukee I, 406 U.S. at 102 , 92 S.Ct. at 1392 (under the FWPCA, water pollution is “subject ‘to abatement’ when it ‘endangers the health or welfare of any persons’ ”). The Clean Air Act authorizes the Administrator of the federal Environmental Protection Agency to bring civil actions for non-compliance with the Act. 42 U.S.C. § 7413 (b) (1982); see Milwaukee I, 406 U.S. at 103 , 92 S.Ct. at 1392 (under the FWPCA, “the Attorney General may bring suit on behalf of the United States for abatement of the pollution”). Thus, just as the FWPCA was evidence of a uniquely federal interest in water pollution, the Clean Air Act evidences a similar federal interest in air pollution. 3

The majority acknowledges that the EPA has recently undertaken to regulate the very sort of non-point source air pollution that is at issue in this case. Majority op. at *1421 1415. A more direct statement of a federal interest in wind-borne air pollution cases is difficult to imagine. However, the majority concludes that “[njothing in the Clean Air Act suggests Congress intended to rely for enforcement of this Act upon a federal common law remedy.” Id. at 1414. But this is not relevant to the question whether a federal interest is involved. The scope of the Clean Air Act is, of course, relevant to the preemption issue, see Section 3 infra, a question the majority does not reach. Majority op. at 1417.

Because a federal interest is implicated, I believe that the pollution need not also be interstate in nature. This interpretation is supported by the disjunctive language employed in Milwaukee I. There, the Supreme Court held that federal law “controls the pollution of interstate or navigable waters” and that federal common law governs “air and water in their ambient or interstate aspects.” Id., 406 U.S. at 102-03 , 92 S.Ct. at 1392 (emphasis added). The purpose of actions under federal common law, as articulated in Milwaukee I, is not only to protect interests of federalism, but also to effectuate “overriding federal interests.” See id. at 105 n. 6, 92 S.Ct. at 1393 n. 6. The federal interest in clean air and water, which Congress established and the Supreme Court has affirmed, is not affected by state boundaries; the ability of the federal courts to protect that interest should not depend on whether the prevailing winds are strong enough to carry polluted air from the Mono Lake area into Nevada.

The Seventh Circuit adopted this view of federal common law in Outboard Marine, upholding a nuisance action against an instate polluter brought by the state of Illinois. 4 The court emphasized the language of Milwaukee I, noting: “The Court’s use of the term ‘navigable waters’ significantly suggests the breadth of the holding, for that term includes both the territorial seas and purely intrastate waters having no necessary interstate impact.” 619 F.2d at 626-27 (footnote omitted). The court also declared that the need for uniform rules of decision, discussed in Milwaukee I, is equally strong whether or not the pollution has interstate effects. Id. at 628; see also National Sea Clammers Association v. City of New York, 616 F.2d 1222 , 1234 n. 35 (3d Cir.1980), rev’d on grounds of preemption sub nom. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 , 98 S.Ct. 906 , 55 L.Ed.2d 65 (1981). The court ended by stating,

Id. at 630. 5 In view of Milwaukee I’s language regarding ambient air, as well as the provisions of the Clean Air Act, I believe the Seventh Circuit’s holding is equally applicable to air pollution. I conclude that because of the federal interest in the quality of ambient air, Audubon has stated a claim under the federal common law of nuisance.

The majority also holds that, because only California parties are present, this controversy is a “purely domestic dispute” rather than an interstate dispute and there *1422 fore is not governed by federal common law. See majority op. at 1416. Because I believe this issue is at heart one of standing, I discuss it in the following section.

2. Standing

The majority suggests that federal common law applies only to “those interstate controversies which involve a state suing [pollution] sources outside of its own territory.” Majority op. at 1417. The majority appears to confuse the question of under what circumstances a cause of action for nuisance exists under federal common law with the question of who has standing to bring such an action. It cites no support for limiting standing in federal common law nuisance actions to state complainants. Rather, it contents itself with citing examples of cases in which a state was a party. But while past federal common law nuisance actions have largely involved state complainants, nothing in prior Supreme Court holdings precludes an injured private party from maintaining an action such as the one before us.

While the Supreme Court has never decided whether a private plaintiff may bring an action under the federal common law of nuisance, the language of Milwaukee I suggests that the presence of a state complainant is not required. While Milwaukee I involved a state plaintiff, the Supreme Court specifically held that “it is not only the character of the parties that requires us to apply federal law.” 406 U.S. at 105 n. 6, 92 S.Ct. at 1393 n. 6. Rather, the Court said, federal common law applies “where there is an overriding federal interest in the need for a uniform rule of decision or where the controversy touches basic interests of federalism.” Id.

The Third Circuit has squarely decided the question whether private parties may file federal common law nuisance actions. It held that they may, relying on the Supreme Court’s statements in Milwaukee I regarding the need for uniformity. See National Sea Clammers Association v. City of New York, 616 F.2d 1222, 1234 (3d Cir.1980), rev’d on grounds of preemption sub nom. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 , 101 S.Ct. 2615 , 69 L.Ed.2d 435 (1981). 6 “In order to give full effect to the federal common law of nuisance recognized in [Milwaukee I],” the court held, “private parties should be permitted, and indeed encouraged, to participate in the abatement of such nuisances.” 616 F.2d at 1234 . In this way, the purposes of the remedy as set forth in Milwaukee I can be more fully carried out. See id. 7 It is also significant that the federal pollution control statutes allow for private enforcement. See 33 U.S.C. § 1365 (1982); 42 U.S.C. § 7604 . The fact that private parties as well as governmental entities can seek statutory remedies against pollution suggests that both types of plaintiffs (or neither) can seek remedies against pollution not covered by the statutes.

*1423 Moreover, although the Supreme Court has not addressed the issue of private party standing in the federal common law nuisance context, it has held that other federal common law remedies are available to private plaintiffs. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 , 58 S.Ct. 803 , 82 L.Ed. 1202 (1938), for example, the Court held that apportionment of the waters of an interstate stream was a matter of federal common law. 304 U.S. at 110 , 58 S.Ct. at 811 . The Court went on to hold that the issue could be decided in a suit between private litigants, rejecting the argument that because the states concerned were not parties and could not be joined, the Court lacked jurisdiction. Id. at 110-11 , 58 S.Ct. at 810-11 ; see also Banco Nacional, 376 U.S. at 426-27 , 84 S.Ct. at 939-40 (involvement of private parties does not affect intrinsically federal nature of interests). There is no authority or rationale for departing from the general rule in this case, and the majority has offered none beyond the fact that the Supreme Court has not had occasion to decide the question in a nuisance context. Under the circumstances, the arguments weigh in favor of allowing Audubon to pursue its claim. 8

While the majority discusses the necessity for state plaintiffs at some length, ultimately it appears to base its holding on the fact that this case involves only California parties. See majority op. at 1416-17. Again, the majority appears to confuse the question whether a cause of action exists with the question whether these plaintiffs may maintain such an action. As I understand the issue on which the majority bases its decision, it is: whether a plaintiff in State A may sue for the abatement of a nuisance that arises in State A but affects State B as well, or whether only a State B plaintiff has standing. To put it differently the question raised by the majority appears to be whether, if interstate effects are a necessary element of the cause of action, a citizen of the state in which the nuisance originates has standing. Because I believe that interstate effects are not a *1424 necessary element of a federal common law action where a federal interest exists, I need not decide the question. 9 I conclude that Audubon has standing to bring this claim under the federal common law of nuisance.

3. Preemption

The most difficult question in this case is one the majority does not answer: whether Audubon’s air pollution claim is preempted by the Clean Air Act. 10 Although a close question, application of the Milwaukee II preemption analysis indicates that Audubon’s claim is not preempted. 11 As elaborated by the Supreme Court in Milwaukee II, the question of statutory preemption of federal common law “involves an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law.” 451 U.S. at 315 n. 8, 101 S.Ct. at 1792 n. 8. In order to preempt common law, the legislative scheme must speak directly to a question, id. at 315, 101 S.Ct. at 1791; “[w]hen Congress has not spoken to a particular issue,” federal common law applies. Id. at 313, 101 S.Ct. at 1790; see also County of Oneida, New York v. Oneida Indian Nation of New York State, 470 U.S. 226, 237 , 105 S.Ct. 1245, 1253 , 84 L.Ed.2d 169 (1985). The Clean' Water Act preempted federal common law because it was “an all-encompassing program of water pollution regulation.” Milwaukee II, 451 U.S. at 318 , 101 S.Ct. at 1793.

*1425 The legislative purpose of the Clean Air Act is “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” 42 U.S.C. § 7401 (b)(1) (1982). However, the Act is not, as I have noted, an “all-encompassing program” of pollution regulation comparable to the Clean Water Act. 12 Under the latter statute, “[ejvery point source discharge is prohibited unless covered by a permit.” Milwaukee II, 451 U.S. at 318 , 101 S.Ct. at 1793 (emphasis in original) (footnote omitted). But as the Second Circuit has explained, the regulatory scheme of the Clean Air Act is less comprehensive than that of the Clean Water Act in that the former statute does not control emissions from every source, but only from those sources that are found to threaten the air quality standards promulgated by the EPA. New England Legal Foundation v. Costle, 666 F.2d 30 , 32 n. 2 (2d Cir.1981). 13

In fact, the structure of the Clean Air Act is closer to that of the pre-1972 Federal Water Pollution Control Act (FWPCA)— which the Supreme Court held in Milwaukee I did not preempt federal common law, 406 U.S. at 107 , 92 S.Ct. at 1395 -than it is to that of the Clean Water Act. Prior to the 1972 amendments, the FWPCA “employed ambient water quality standards specifying the acceptable levels of pollution in a State’s interstate navigable waters as the primary mechanism in its program for the control of water pollution.” Those standards were to be achieved through implementation plans designed by the states. See EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200 , 202 & n. 4, 96 S.Ct. 2022 , 2023 & n. 4, 48 L.Ed.2d 578 (1976). That approach was rejected in 1972 in favor of the effluent limitations and discharge permit system of the current Clean Water Act. 33 U.S.C. §§ 1311 , 1342 (1982); see EPA v. California, 426 U.S. at 204-05 , 96 S.Ct. at 2024-25 .

However, no similar changes were made in the Clean Air Act. That statute continues to rely primarily on national air quality standards that are implemented through state plans. See 42 U.S.C. §§ 7409 , 7410 (1982). 14 The Clean Air Act, like the old FWPCA, focuses on establishing the tolerable levels of pollutants in the environment, while the Clean Water Act focuses on regulating all discharges of pollutants. The Clean Air Act “tightens control” over emissions “so as not to lower applicable [air] quality standards.” See Milwaukee I, 406 U.S. at 101 , 92 S.Ct. at 1392 (describing FWPCA). But unlike the Clean Water Act, it does not establish a “comprehensive” regulatory program; it still leaves room, as did the old FWPCA, for the federal courts “to improve on [its] program with federal common law.” See Milwaukee II, 451 U.S. at 319 , 101 S.Ct. at 1793.

*1426 The analysis does not change because the EPA has recently begun to regulate the type of non-point source air pollution at issue in this case. See 40 C.F.R. §§ 50.6 , 50.7 (1987) and 40 C.F.R. Part 50, Appendix J & K (1987). See also 52 Fed.Reg. 24716 (July 1,1987). In Milwaukee I, the FWPCA also regulated the type of pollution which the plaintiff was seeking to have abated. 406 U.S. at 102 , 92 S.Ct. at 1392 . Because the remedy the plaintiff sought was “not within the precise scope” of those prescribed by the FWPCA, id., and because the FWPCA (as constituted at the time Milwaukee I was decided) was not all-encompassing, Milwaukee II, 451 U.S. at 317-18, n. 10 , the Court concluded that the federal common law of nuisance was still applicable. Milwaukee I, 406 U.S. at 103-08 , 92 S.Ct. at 1392-95 . As the Clean Air Act itself is not all-encompassing, and indeed is similar in scope to the version of the FWPCA considered in Milwaukee I, see supra at 1422-23, the mere fact that the EPA is regulating wind-borne air pollution is not sufficient to compel a conclusion that the Act preempts federal common law. 15

Permitting federal common law nuisance actions for air pollution would not disrupt the regulatory scheme of the Clean Air Act. Rather, doing so would allow us to supplement and improve on the statutory scheme, as Milwaukee I held was permitted. While the Clean Air Act reaches both industrial and mobile sources of air pollution, it generally leaves other sources unregulated. Unlike the Clean Water Act, it does not reach or attempt to control every source of emissions. Therefore it is not “all-encompassing”; it is far more like the statute held not preemptive in Milwaukee ted. Unlike the Clean Water Act, the Clean Air Act is not “all-encompassing”; it is far more like the statute held not preemptive in Milwaukee I. Thus, in my opinion, the Clean Air Act does not preclude an air pollution claim under the federal common law of nuisance.

4. Conclusion

Audubon seeks here to raise claims of air and water pollution at Mono Lake under the federal common law of nuisance. Congress has declared, and the Supreme Court has found, that the elimination of such pollution is an overriding federal interest. Contrary to the majority’s view, it is the job of the federal courts to use federal common law to effectuate that interest, at least where Congress has not preempted the field by “all-encompassing” legislation. Congress has done so in the area of water pollution but, in my opinion, not in the area of air pollution.

Moreover, because Audubon’s suit raises a matter of federal interest, I disagree with the majority that the action must also either involve a federal right or obligation, or constitute an interstate dispute implicating the conflicting rights of states. I believe it is not necessary to meet either of these additional requirements if a federal interest is present. Even those courts that have suggested that a federal interest is insufficient in itself have required only that the pollution have interstate effects. Here, that requirement is satisfied because Audubon has alleged that the air pollution caused by the Mono Lake diversion extends into Nevada.

Private parties, as well as states, may assert a federal interest whether or not interstate effects are a necessary element of the cause of action. Because I do not believe that a showing of interstate effects is required, I need not decide whether standing in this case is limited to Nevada residents. Were I to reach that question, however, I would answer it in the negative *1427 and conclude that Audubon has standing to pursue its claim.

For these reasons, I disagree with the majority’s dismissal of Audubon’s air pollution claim. I respectfully dissent.

. "Ambient air” is "that portion of the atmosphere, external to buildings, to which the general public has access." 40 C.F.R. § 50.1 (e) (1987).

. Nor can the majority escape the Court's reasoning in Milwaukee I by arguing that this case does not involve a “right or obligation” of the United States. See majority op. at 1415. In Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 , 101 S.Ct. 2061, 2067 , 68 L.Ed.2d 500 (1981), the Supreme Court briefly outlined the function of federal common law and listed some of the categories of cases in which that law applies. The uniquely federal interest in air and water pollution discussed by the Court in Milwaukee I does not fit neatly into any of those categories; but that is not a basis for ignoring the Court’s holding or analysis. Texas Industries does not purport to, nor does it, undercut the teachings of Milwaukee I.

. The Milwaukee I Court also cited other federal statutes as evidence of the existence of a federal interest. See 406 U.S. at 101-02 , 92 S.Ct. at 1391-92 . If anything, the federal interest in clean air and water has become even more apparent since Milwaukee I as Congress has approved further legislation in this area. In addition to reauthorizing and amending both the Clean Air Act and the Federal Water Pollution Control Act, Congress enacted new environmental legislation such as the Coastal Zone Management Act of 1972, 16 U.S.C. §§ 1451-1464 (1982 & Supp. IV, 1986), and the Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1445 (1982). By these actions, Congress reaffirmed its intent to protect our environment against the "irreversible perturbations" caused by human activity. H.R. Rep. No. 911, 92d Cong., 2d Sess. 77 (1972), reprinted in 1 Legislative History of the Water Pollution Control Act of 1972, at 764 (1973).

. Outboard Marine was ultimately dismissed on grounds of preemption. People of the State of Illinois v. Outboard Marine Corp., Inc., 680 F.2d 473 (7th Cir.1982). However, the Seventh Circuit’s reasoning remains sound.

. In contrast to the Seventh Circuit, some courts have dismissed federal common law nuisance claims where the plaintiffs failed to allege interstate pollution effects. See Committee for the Consideration of the Jones Falls Sewage System *1422 v. Train, 539 F.2d 1006 , 1009-10 (4th Cir.1976); Reserve Mining Co. v. EPA, 514 F.2d 492 , 520 (8th Cir.1975) (en banc), modified on other grounds sub nom. Reserve Mining Co. v. Lord, 529 F.2d 181 (8th Cir.1976); see also Parsell v. Shell Oil Co., 421 F.Supp. 1275 , 1281 & n. 15 (D.Conn.1976), aff’d mem. sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir.1977). For the reasons already stated, I disagree with the reasoning of those courts. See Outboard Marine, 619 F.2d at 628-29 (declining to adopt reasoning of Fourth and Eighth Circuits). But even if interstate pollution effects were required for the application of federal common law, Audubon would meet that test. Audubon has alleged that the dust storms rising from the uncovered bed of Mono Lake pollute the air of Nevada as well as that of California, and for purposes of this appeal we must accept that allegation as true.

. Again, while the claim was later held preempted, the Third Circuit's reasoning on the issue of private party standing remains valid. The Supreme Court expressly reserved judgment on the question. Sea Clammers, 453 U.S. at 21 , 101 S.Ct. at 2627 .

. In Jones Falls, the Fourth Circuit noted the absence of a state complainant, but it is unclear what role that factor played in the court's dis *1423 missal of the federal common law nuisance claim. See 539 F.2d at 1009-10. In an opinion summarily affirmed by the Second Circuit, a district court noted that the federal common law nuisance claims decided by the Supreme Court had involved state parties, but did not squarely hold that private parties were not permitted. See Parsell, 421 F.Supp. at 1280-81 . Another district court allowed a federal common law nuisance action brought by private plaintiffs to proceed without discussing the issue of private party standing. Byram River v. Village of Port Chester, New York, 394 F.Supp. 618 (S.D.N.Y.1975). These are the only cases of which I am aware that have involved federal common law nuisance actions brought by private plaintiffs. In short, one court of appeal has held that private parties have standing to bring federal common law nuisance claims; so far as I know, no court has squarely held that they do not.

Courts have also decided federal common law nuisance claims in which the plaintiff was a political subdivision of a state, see City of Evansville, Indiana v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir.1979); Township of Long Beach v. City of New York, 445 F.Supp. 1203 (D.N.J.1978), or the federal government, see United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d Cir.1974), cert. denied, 420 U.S. 927 , 95 S.Ct. 1124 , 43 L.Ed.2d 397 (1975); United States ex rel. Scott v. United States Steel Corp., 356 F.Supp. 556 (N.D.Ill.1973).

. The plaintiffs meet the remaining requirements for standing. Members of the plaintiff associations as well as the individual property-owners have alleged particularized, “distinct and palpable" injuries that are directly traceable to the diversion of fresh water flows from Mono Lake by the Department of Water and Power. See Allen v. Wright, 468 U.S. 737, 751 , 104 S.Ct. 3315, 3324 , 82 L.Ed.2d 556 (1984); Warth v. Seldin, 422 U.S. 490, 499 , 95 S.Ct. 2197, 2205 , 45 L.Ed.2d 343 (1975). These injuries would be redressed if the diversion were to cease. See Allen, 468 U.S. at 751 , 104 S.Ct. at 3324 . Moreover, the continuation of the diversion threatens further injury to the plaintiffs in the future. See National Resources Defense Council, Inc. v. Hodel, 618 F.Supp. 848, 853 (E.D.Cal.1985). No prudential considerations argue against the plaintiffs’ standing in this case. Thus, there is no reason to deny the plaintiffs the right to pursue their claim.

. If allegations of interstate pollution effects are required for a federal common law nuisance claim based on a federal interest, see note 61 supra, I would still conclude that the plaintiffs have standing. The reason for requiring interstate effects appears to be the belief that federal common law should be invoked only where the controversy involves pollution of more than purely local significance or impact. See Jones Falls, 539 F.2d at 1009 (”[t]his intrastate controversy is entirely local”); Reserve Mining, 514 F.2d at 521-22 & n. 54 (noting evidence showed no significant interstate pollution effects). Once the pollution meets that standard, it makes no difference in which state the plaintiffs reside; the impact of the pollution is still the same. The majority's argument, that federal common law applies only if there is a dispute between parties from different states, is simply a throwback to the theory that there must be an “interstate dispute implicating the conflicting rights of states” in order to invoke federal common law. That argument has no relevance to the question of who has standing to bring a federal interest claim, even assuming that interstate effects are a necessary element of such a claim.

. I agree with the majority that Audubon’s water pollution claim is preempted. The Supreme Court stated in Milwaukee II that "at least so far as concerns the [water pollution nuisance] claims of respondents, Congress ... has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency.” 451 U.S. at 317, 101 S.Ct. at 1792. That same term, the Court declared, "The Court has now held that the federal common law of nuisance in the area of water pollution is entirely pre-empted by the more comprehensive scope” of the revised Clean Water Act. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 21-22 , 101 S.Ct. 2615, 2627 , 69 L.Ed.2d 435 (1981) (citing Milwaukee II). The latter statement seems to extend beyond the holding of Milwaukee II. But while these statements arguably amount only to dicta (since both cases involved the particular type of water pollution regulated by the statute — the discharge of pollutants into navigable waters), I recognize that the language of Sea Clammers is unequivocal.

We faced a similar situation in United States v. Beale, 736 F.2d 1289 (9th Cir.1984) (en banc). The Supreme Court had made certain statements regarding the fourth amendment implications of dog sniffs, statements that were arguably unnecessary to the resolution of its case. United States v. Place, 462 U.S. 696, 706-07 , 103 S.Ct. 2637, 2644-45 , 77 L.Ed.2d 110 (1983). Shortly afterward, the Court characterized its earlier statements as a holding. United States v. Jacobsen, 466 U.S. 109, 123 , 104 S.Ct. 1652, 1662 , 80 L.Ed.2d 85 (1984). We held: "Whether or not the statement in Place was a holding or dictum, the Supreme Court has clearly directed the lower courts to follow its pronouncement.” 736 F.2d at 1291 . The situation is the same here. Given the strength of the Court’s initial statement and the even stronger and deliberate repetition of its view shortly afterward, I believe we are compelled to follow the pronouncements of Milwaukee II and Sea Clammers.

.We previously held that neither the Clean Air nor Clean Water Act precluded a federal common law nuisance claim. California Tahoe Regional Planning Agency v. Jennings, 594 F.2d 181, 193 (9th Cir.1979). However, because that case was decided before Milwaukee II, its prece-dential value is limited and the issues must be reanalyzed in light of the later Supreme Court decision.

. We have previously commented that the Clean Air Act "was intended comprehensively to regulate, through guidelines and controls, the complexities of restraining and curtailing modern day air pollution." Bunker Hill Co. Lead and Zinc Smelter v. EPA, 658 F.2d 1280, 1284 (9th Cir.1981). However, this "passing observation," cf. id., was not made in a preemption context and we did not examine the statute’s regulatory scheme or look to see whether the statute addressed a particular problem. Accordingly, I do not believe that we intended our observation to constitute a definitive ruling on the critical preemption question at issue here.

. The Second Circuit did not reach "the broad question of whether the Clean Air Act totally preempts federal common law nuisance actions based on the emission of chemical pollutants into the air.” 666 F.2d at 32 . But see Reeger v. Mill Service, Inc., 593 F.Supp. 360, 363 (W.D.Pa.1984) (regulatory scheme of Clean Air Act “similar” to that of Clean Water Act, therefore "same principle of preemption” applies); United States v. Kin-Buc, Inc., 532 F.Supp. 699, 702 (D.N.J.1982) (common law of nuisance preempted because “Congress has addressed the problem of air pollution").

.The Clean Air Act does impose emission limitations on mobile sources and new stationary sources. See 42 U.S.C. §§ 7411 , 7521 (1982). But even in those contexts, the Act does not use a comprehensive permit system like the one that *1426 applies to water pollution. Rather, new stationary sourcesi are subject to “performance standards” that reflect the current state of pollution control technology. See id. § 7411. The new source performance standards are intended to supplement, not replace, the ambient air quality standards. Natural Resources Defense Council, Inc. v. Train, 545 F.2d 320, 326 (2d Cir.1976). Thus, the air quality standards remain the primary method of air pollution control.

. I note that the EPA’s regulations "may provide useful guidelines in fashioning ... rules of decision." Milwaukee I, 406 U.S. at 103 , 92 S.Ct. at 1392 n. 5.