A River Ablaze : PERC - The Property and Environment Research Center

PERC Reports: Volume 17,
No.2, June 1999

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A River Ablaze

Cuyahoga Revisited

By Stacie Thomas

PERC Reports 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. 76Ð77 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).