The Supreme Court’s Earliest Pollution Cases

Long before Congress, a notoriously conservative Court started taking pollution seriously.

Well over a century ago, the Supreme Court ruled that it had that power to remedy interstate water pollution. That was in 1901. Six years later, the Court decided its first air pollution case.  Notably, these cases came during the conservative Lochner era when the Court was hardly known for its liberalism.  Quite the contrary. Yet the Court didn’t hesitate to address pollution issues.

The water pollution case was Missouri v. Illinois.  In a feat of engineering prowess or incredible hubris, depending on how you 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 the city’s raw sewage. Missouri claimed that the sewage was befouling the water as far away as St. Louis. The Court had long heard other law suits between states, but this was apparently the first one to involve pollution.

The Court’s decision was written by Justice Shiras. You wouldn’t be alone if you’ve never heard of him. Fame is fleeting.  Suffice it to say that he was a conservative member of a conservative Court — perhaps the most conservative Court in history until now.

Almost all of 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 end, Shiras gets down to business. Describing the case, he said:

“The bill in this case does not assail the drainage canal as an unlawful structure, nor aim to prevent its use as a waterway. What is 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. . . . .”

In the Court’s view, that was enough to give it jurisdiction. In a later round of the litigation, the Court held that Missouri had not sufficiently proved its case that the cause of contamination was sewage from Illinois rather 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 decision was by a famous judge, Justice Oliver Wendell Holmes. Here’s what he said:

“It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.”

Citing the Missouri case, Holmes said that state sovereignty was at the core of the case:

“When the states by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasi-sovereign interests, and the alternative to force is a suit in this Court.”

These two cases are little known today, but they have cast long shadows.  Very briefly, here were some of their longterm impacts:

  1. International law. This line of precedent got the attention of an international tribunal in the Trail Smelter case, which involving a Canadian smelter polluting across the U.S. border. The tribunal held that a country has a duty to prevent its inhabitants from inflicting serious harm within another country. Thus, Canada had to take responsibility for the pollution. This principle is now famous in international law as the Smelter Trail rule. In turn, that principle of international law was taken up in international concords such as the 1992 Rio Declaration on Environment and Development.
  2. Water pollution. Use of federal common law to pursue water pollution cases enjoyed a big revival in the 1960s and early 1970s. It was ended by the Supreme Court, which held that the then-new Clean Water Act took over the field of interstate water pollution in lieu of court-made rules.
  3. Climate change.  In a groundbreaking climate decision, Massachusetts v. EPA, Justice Stevens invoked this line of cases to emphasize the special interest that states have in access to the Court to protect their interests as sovereigns.  The upshot was to give states standing to sue EPA for failing to take action against carbon emissions. Also, this line of cases was repurposed  early in this century in order to bring lawsuits against major carbon emitters in federal court. The Supreme Court ultimately said that since the Clean Air Act covered climate change, lawsuits based on judge-made federal rules were no longer needed. It left open the possibility of lawsuits based on state law, and state lawsuits against oil companies are now underway.

As it has turned out, the Supreme Court has been happy to cede these pollution issues to Congress. But Justice Shiras’s imprint lives on in international law and perhaps in standing law.

Shiras, who was born in 1832, retired from the Court just after the decision. Unlike some current Justices, apparently didn’t think life tenure meant that he had to stay on the Court the rest of his life. He retired just after the Missouri case was decided and lived another two decades, dying in 1924.





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Reader Comments

8 Replies to “The Supreme Court’s Earliest Pollution Cases”

  1. Dan, how can we educate and motivate voters to realize that climate change is the gravest threat to our survival and we must act today?

    We must elect people who will make the right things happen with the greatest sense of urgency because the UN is warning us that we have already passed some tipping points of no return!

  2. P.S. However, the way things are going now, without any leadership to educate and motivate, Greta Thunberg is right about “UN Climate Change Conference is a ‘scam.'” And the reality is that the US in 2022 is now proving that American Democracy is also a scam because our politicians are too corrupt to change.

    So if educational institutions like UC continue to fail to educate and motivate the peoples of the world, and our failures to survive are out of control because our political and intellectual leaders are failing to meet the challenges of change, then history teaches us that this is truly The End of the End

  3. i cover these cases in the common law portion of my environmental law class. there is also an early interesting water pollution case between NY and NJ

  4. UN chief warns planet is heading toward `climate chaos’:

    “Guterres said that in the last few weeks, reports have painted “a clear and bleak picture” of global-warming greenhouse gas emissions still growing at record levels instead of going down 45% by 2030 as scientists say must happen.”

    QUESTION: Is there any institution with leadership that can make the right things happen in time to save the human race from destroying itself?

  5. SHARM EL-SHEIKH, Egypt (AP) — “Cooperate or perish,” the United Nations chief told dozens of leaders gathered Monday for international climate talks, warning them that the world is “on a highway to climate hell” and urging the two biggest polluting countries, China and the United States, to work together to avert it.

    11/7/22 By SETH BORENSTEIN

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

READ more