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A River Ablaze

  • Stacie Thomas

    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
    • 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

    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

    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

    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.


    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).

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