The Supreme Court’s Earliest Pollution Cases
Long before Congress, a notoriously conservative Court began taking pollution seriously.
Well over a century ago, the Supreme Court ruled that it had that power to treatment interstate water pollution. That was in 1901. Six years later, the Court decided its first air pollution case. Notably, these cases got here throughout the conservative Lochner era when the Court was hardly known for its liberalism. Quite the contrary. Yet the Court didn’t hesitate to handle pollution issues.
The water pollution case was Missouri v. Illinois. In a feat of engineering prowess or incredible hubris, depending on the way you take a look at it, Illinois had built a canal to reverse the flow of a river from Lake Michigan to the Mississippi. The canal then became a dumping place for town’s raw sewage. Missouri claimed that the sewage was befouling the water as distant as St. Louis. The Court had long heard other law suits between states, but this was apparently the primary one to involve pollution.
The Court’s decision was written by Justice Shiras. You wouldn’t be alone in the event you’ve never heard of him. Fame is fleeting. Suffice it to say that he was a conservative member of a conservative Court — perhaps essentially the most conservative Court in history until now.
Almost all the opinion consists of quotations from the parties and a recitation of past lawsuits between states decided by the Court. It’s tedious reading. Then, near the top, Shiras gets right down to business. Describing the case, he said:
“The bill on this case doesn’t assail the drainage canal as an illegal structure, nor aim to stop its use as a waterway. What’s sought is relief against the pouring of sewage and filth through it, by artificial arrangements, into the Mississippi River, to the detriment of the State of Missouri and her inhabitants. . . . .”
Within the Court’s view, that was enough to offer it jurisdiction. In a later round of the litigation, the Court held that Missouri had not sufficiently proved its case that the explanation for contamination was sewage from Illinois moderately than sewage from Missouri.
The air pollution, Georgia v. Tennessee Copper Co. , involved horrendous sulfur dioxide coming from a copper smelter. The result was massive destruction of Georgia land by carbon dioxide. This time the choice was by a famous judge, Justice Oliver Wendell Holmes. Here’s what he said:
“It’s a fair and reasonable demand on the a part of a sovereign that the air over its territory mustn’t be polluted on an ideal scale by sulphurous acid gas, that the forests on its mountains, be they higher or worse, and whatever domestic destruction they’ve suffered, mustn’t be further destroyed or threatened by the act of individuals beyond its control, that the crops and orchards on its hills mustn’t be endangered from the identical source.”
Citing the Missouri case, Holmes said that state sovereignty was on the core of the case:
“When the states by their union made the forcible abatement of outdoor nuisances unattainable to every, they didn’t thereby comply with undergo whatever is perhaps done. They didn’t resign the potential for making reasonable demands on the bottom of their still remaining quasi-sovereign interests, and the choice to force is a suit on this Court.”
These two cases are little known today, but they’ve forged long shadows. Very briefly, here were a few of their longterm impacts:
- International law. This line of precedent got the eye of a world tribunal within the Trail Smelter case, which involving a Canadian smelter polluting across the U.S. border. The tribunal held that a rustic has an obligation to stop its inhabitants from inflicting serious harm inside one other country. Thus, Canada needed to take responsibility for the pollution. This principle is now famous in international law because the Smelter Trail rule. In turn, that principle of international law was taken up in international concords akin to the 1992 Rio Declaration on Environment and Development.
- Water pollution. Use of federal common law to pursue water pollution cases enjoyed a giant revival within the Sixties and early Nineteen Seventies. It was ended by the Supreme Court, which held that the then-new Clean Water Act took over the sphere of interstate water pollution in lieu of court-made rules.
- Climate change. In a groundbreaking climate decision, Massachusetts v. EPA, Justice Stevens invoked this line of cases to emphasise the special interest that states have in access to the Court to guard their interests as sovereigns. The upshot was to offer states standing to sue EPA for failing to take motion against carbon emissions. Also, this line of cases was repurposed early on this century as a way to bring lawsuits against major carbon emitters in federal court. The Supreme Court ultimately said that for the reason that Clean Air Act covered climate change, lawsuits based on judge-made federal rules were not needed. It left open the potential for lawsuits based on state law, and state lawsuits against oil corporations are actually underway.
Because it has turned out, the Supreme Court has been pleased to cede these pollution issues to Congress. But Justice Shiras’s imprint lives on in international law and maybe in standing law.
Shiras, who was born in 1832, retired from the Court just after the choice. Unlike some current Justices, apparently didn’t think life tenure meant that he had to remain on the Court the remainder of his life. He retired just after the Missouri case was decided and lived one other twenty years, dying in 1924.
