Early in the summer of 1969,
the Cuyahoga River caught
fire. Piles of logs, picnic
benches, and other debris had
collected below a railroad
trestle, which impeded their
movement down the river.
These piles only lacked a spark
to set them afire. A passing
train with a broken wheel bearing
probably provided that
spark, igniting the debris
which, in turn, lighted the
kerosene-laden oil floating on
top of the river.
The fire burned only 24
minutes-too short a time for
the Cleveland Plain Dealer to
catch a photo-and at first it attracted
little attention. However,
in the following months, the fire
became a symbol of a polluted
America. It helped galvanize the
environmental movement. Even
today, the idea of the burning
river remains a symbol of industrial neglect of the environment.
A few things have been ignored in the legend surrounding
the Cuyahoga fire:
- The Cuyahoga, which flows through the city of
Cleveland into Lake Erie, had caught fire at least
two times before (in 1936 and 1952). The earlier
fires burned much longer and caused much more
damage. - While oil on the river burned, most of the fuel was
not industrial but, rather, logs, debris, and household
waste washed downstream by the periodic storms that roil the deep, fastmoving
river many miles
above Cleveland. - Most important for our understanding
of environmental
problems, the fire came about
because political control replaced
the emerging commonlaw
rule of strict liability. Had
that doctrine been allowed to
hold sway, there would probably
not have been a fire in
1969.
The industrial stretches of
the Cuyahoga River were, indeed,
polluted in 1969 and had
been for many years. In the
1930s, for example, the people
of Cleveland had clean drinking
water from Lake Erie. So municipal
authorities left the
Cuyahoga River alone-allowing
firms along its banks to discharge
into it at will.
Not everyone was content with that policy. In
some cases Cuyahoga water was too polluted even for
industrial use. In 1936, a paper manufacturer on
Kingsbury Run, a tributary of the Cuyahoga, sued the
city of Cleveland to stop it from dumping raw sewage
into the stream.
The city responded by saying that it had used the
stream as a sewer since 1860 and that therefore it had a
“prescriptive right” to use it that way. The court agreed
with the city of Cleveland. It stated that when part of a
stream “being wholly within a municipal corporation, so
that none but its residents are thereby affected, is generally
devoted to the purposes of an open sewer for more than 21 years . . . it becomes charged with a servitude
authorizing its like use by other riparian owners.”(1)
So much for protection of riparian rights in 1936!
However, that attitude changed rapidly. By 1948, the
doctrine of strict liability was taking hold. A court decision
states that “one may not obtain by prescription,
or otherwise than by purchase, a right to cast sewage
upon the lands of another without his consent.”(2) Other
rulings were similar.
Incomes were rising and concern about industrial
wastes was mounting. Pollutants were corroding sewage
treatment systems and impeding their operation. In another
part of the state, the Ohio River Sanitation Commission,
representing the eight states that border the
Ohio River (which runs along Ohio’s southern border),
developed innovations to reduce pollution. The municipalities
and the industries along the Ohio began to invest
in pollution control technology.
Unfortunately, this progress soon
ended. The evolving common
law and regional compacts hit a snag
in 1951 when the state of Ohio created
the Ohio Water Pollution Control
Board. The authorizing law
sounded good to the citizens of Ohio.
It stated that it is “unlawful” to pollute
any Ohio waters. However, the law
continues: “. . . except in such cases
where the water pollution control
board has issued a valid and unexpired
permit.”(3)
The board issued or denied permits depending on
whether the discharger was located on an already-degraded
river classified as “industrial use” or on trout
streams classified as “recreational use.” Trout streams
were preserved; dischargers were allowed to pollute industrial
streams. The growing tendency of the courts to
insist on protecting private rights against harm from
pollution was replaced by a public decision-making
body that allowed pollution where it thought it was appropriate.
During the 1960s, attempts were made to revive
the application of common-law rights to stop pollution
of the Cuyahoga. Those complaints were redirected to
the state or local agency in charge of managing water
quality, with one exception. In 1965, Bar Realty Corporation,
a real estate company, sued the city and the
board to compel them to enforce the city’s pollution
control ordinances against industrial polluters. The
judge agreed, and directed the city and the board to stop pollution of the Cuyahoga.(4) However, the Ohio Supreme
Court overturned the ruling. The Supreme Court
decided that Cleveland’s ordinances were in conflict
with state statutes. Management by permit continued to
dominate other institutional arrangements on the
Cuyahoga.
Cleveland Mayor Carl Stokes, who helped draw
attention to the Cuyahoga fire, criticized the state for
letting industries pollute. “We have no jurisdiction over
what is dumped in there. . . . The state gives [industry]
a license to pollute,” the Cleveland Plain Dealer quoted
him as saying (June 24, 1969). Stokes was not far off the
mark. However, he thought the solution was to move to
federal regulation rather than back to the guidance provided
by court decisions.
The famous fire illustrates the unfortunate history of
pollution control in the United States. Growing citizen
concern about pollution was leading to voluntary cleanup-as illustrated by the Ohio
River Sanitation Commission-but
the emerging common-law rule of
strict liability was abandoned in favor
of a political process that allowed continuing
pollution of certain segments
of the state’s waters.
By catering to special interests,
Ohio’s regulatory scheme stopped
the emergence of a doctrine that
would have spurred cleanup. It also
helped propel the nation toward national
legislation and its costly technological
specifications. The Clean
Water Act of 1972 may have led to change on the Cuyahoga, but it also stifled innovation
in pollution control and wasted vast sums of money,
both industry’s and the taxpayer’s.(5)
In sum, the Cuyahoga fire, which burns on in
people’s memory as a symbol of industrial indifference,
should also be viewed as a symbol of the weaknesses of
public regulation.
Notes
1. City of Cleveland v. Standard Bag & Paper Co.,
Ohio, 1905. 72 Ohio St. 324, 74 N.E. 206.
2. See Vian v. Sheffield (June 14, 1948), 85 Ohio
App. 191, 88 N.E. 2d 410, at 199. The decision cites
four other precedents. See also Weade v. City of Washington
(July 15, 1955), 128 N.E. 2d 256. While Vian involved
the overflow of contaminated water onto a
person’s land, those living along rivers had riparian
rights to nondeteriorated water quality.
3. The Water Pollution Control Act of Ohio, Sec. 1261-1e of the Act, Violations of Act Defined.
4. Bar Realty Corp. v. Locher, Ohio, 1972. 30 Ohio
St. 2d 190, 283 N.E. 2d 16.
5. See pgs. 76Ã77 in Bruce Yandle, Common Sense
and Common Law for the Environment, Lanham MD:
Rowman & Littlefield Publishers (1997).
Stacie Thomas, a 1998 PERC Fellow, is an economist with the Senate
Banking Committee in Washington, D.C. More information about the
Cuyahoga fire and common law can be found in “Burning Rivers,
Common Law, and Institutional Choice for Water Quality,” forthcoming
in The Common Law and the Environment, ed. Roger E. Meiners
and Andrew P. Morriss, Rowman & Littlefield Publishers (1999).
