Over at Legal Planet, Dan Farber recently posted on "The Supreme Court’s Earliest Pollution Cases". Farber writes:
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.
Chicago Drainage Canal being built (from The New Student's Reference Work (1914))
I'm not sure this was really the US Supreme Court's first pollution case - how about the Slaughterhouse Cases? In any case, Farber goes on to also discuss Georgia v. Tennessee Copper Co., an interstate air pollution case. He comments:
These two cases are little known today, but they have cast long shadows. Very briefly, here were some of their longterm impacts:
- 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.
- 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.
- 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.
