Cuyahoga's Myths and Urban Justice
The famous Cuyahoga River fire of June 22, 1969 — the spur that started debate on pollution across the nation, and led to passage of the Clean Water Act three years later — is lodged more in legendary storytelling than in reality. The fire was actually fairly minor, causing only $50,000 in losses to the Republic Steel Mill located along the river, damaging some wooden trestles. Moreover, no photograph of the event exists — the photo reproduced here, like the one a month later in Time magazine, was from a much larger 1952 blaze.
According to Cleveland Historical, the river actually caught fire several times before the 1969 event went viral. So concern was not new. In fact, in 1881, “the mayor of Cleveland had called the Cuyahoga ‘an open sewer through the center of the city,’” as quoted in Teresa Opheim’s excellent write-up in EPA Journal on the event’s 20th anniversary. The river picked up effluvia from Akron to Cleveland and dumped it into Lake Erie, creating a cesspool.
In Opheim’s account, the “spiritual damage” reported by local newspapers was far greater than the actual damage when the river, covered with oil and debris, ignited for 20 minutes that summer day. Cleveland soon became a national punch line. Its fabled industry, the economic underpinning of the region, kept visitors away from the city and kept the locals surrounded by water pollution, not to mention foul air.
Ironically, according to Cleveland Historical’s Michael Rotman, “the city and its residents were beginning to take responsibility for the cleanliness of the river” in the decade preceding the famous fire. In fact, “residents overwhelmingly passed a $100 million bond initiative to fund the Cuyahoga’s cleanup” a year before the blaze. And in an extended blog post titled “Fables of the Cuyahoga: Reconstructing a History of Environmental Protection,” Case-Western law professor Jonathan Adler lists numerous actions in response to the stream’s pollution taken prior to the fire.
Adler would presumably agree with Rotman’s conclusion that the 1969 conflagration “was not really the terrifying climax of decades of pollution, but rather the last gasp of an industrial river whose role was beginning to change.”
Today, burning pollutants on an urban river would bring up issues of environmental justice, so it is worth noting that the fire is a good example of the impacts often faced by poor and/or minority communities. The blaze took place just yards from the city’s first African American neighborhood. Into the breach stepped Carl Stokes, the dynamic mayor and the man responsible for the river cleanup bond campaign a year previously.
Stokes was the first black elected to head a major American city. As a result, “the national press had their reporters here 24 hours a day,” resident Ben Stefanski would later observe. “They were living here so they had to tell the story” when the infamous fire broke out.
As Rotman reports, Mayor Stokes “became deeply involved with the issue, holding a press conference at the site of the fire the following day and testifying before Congress — including his brother U.S. Representative Louis Stokes — to urge greater federal involvement in pollution control.” The mayor demanded funding from Washington as well as changes in the law to stop allowing facilities to discharge into the Cuyahoga with impunity. “The Stokes brothers’ advocacy played a part in the passage of the federal Clean Water Act of 1972,” Rotman concludes.
Though the Stokeses successfully leveraged environmental concern to help a polluted African American neighborhood, the cleanup was slow. Today, the stream’s health, while vastly improved in terms of industrial discharges, is still impaired by non-point sources not easily regulated by the federal law. Thus, although the Cuyahoga was designated an American Heritage River in 1998, the watershed is one of 43 Great Lakes Areas of Concern in EPA’s classification. Cuyahoga Valley National Park was established in 1974, but it begins upriver from the neighborhood where the blaze occurred. That community still includes a dredged working river flanked by a cement plant, gravel pits, abandoned sites, and a steel mill.
Notice & Comment is written by the editor and represents his views.
First Time a Natural Resource Granted Legal Status in U.S.
On [March 1], the citizens of Toledo, Ohio, granted legal rights reserved for people to Lake Erie, the 9,940-square-mile body of water on which their city depends. According to Sigal Samuel at Vox, the passage of the controversial ballot measure marks the first time a natural resource has been granted legal status in the United States, though a precedent for doing so has been established by other countries in recent years.
The saga of Lake Erie’s personhood began in the summer of 2014, when a toxic algae bloom in the lake, powered by agricultural runoff and other pollution, led the city to turn off the spigots. The incident caused a state of emergency declaration, leaving half a million people without water for three days.
Toledoans for Safe Water, an advocacy group that works to clean up and protect the lake . . . partnered with the Community Environmental Legal Defense Fund to bring the Lake Erie Bill of Rights Charter Amendment, which states the lake has the right to “exist, flourish, and naturally evolve” to a vote this week. The referendum passed with 61 percent approval . . .
The legislation entitles the lake certain rights and empowers citizens to advocate for those rights when they are being violated, like bringing legal suits against polluters. . . .
The Lake Erie Bill of Rights is part of what’s being called the Rights of Nature legal movement, an idea first floated by environmental lawyer Christopher Stone in the Southern California Law Review in 1972.
— Smithsonian
“The case adds to a growing roster of legal losses for Mr. Trump’s efforts to undo Mr. Obama’s environmental legacy. Experts in environmental law estimate that the Trump administration has now lost about 40 environmental cases in federal courts.”
— Coral Davenport in the New York Times, on the U.S. district court decision overturning Trump’s order rescinding Obama’s ban on drilling in the Arctic and Atlantic
The Pelican Brief
Did you hear the story about the single iconic sea bird that was recently awarded more than a million dollars in compensation for injuries suffered from the 2010 BP Deepwater Horizon blowout in the Gulf of Mexico? It was not, as Forum readers might expect, a matter of a bad NOAA NRDA. No, it was the NBA at issue, and the alleged lost income of a power forward on its franchise now named the Pelicans, who play in New Orleans.
To clarify, at the time of the spill, the team was called the Hornets, but they are an invasive species in Louisiana. So that mascot was supplanted in 2012 for a favorite local bird just removed from the endangered list. In fact, the pelican’s trials resulting from its status as a favorite source of feathers for ladies’ hats had led to the formation of the National Refuge System in 1903.
But there was no trial for the 21st century Pelican who claimed damage from the BP oil spill, because his brief was unpersuasive to a reviewing court. It all came down to basic contract interpretation and looking up a few terms of art used in tort lawsuits.
What happened was David West saw his success in claiming losses suffered from the oil spill reversed by an unimpressed panel of the Fifth Circuit Court of Appeals, which forcefully cited precedent and plain meaning in declining as a judicial waste of time to remand the case to the district court for reconsideration.
The Pelican’s brief claimed that he had experienced a diminution in salary after the catastrophe, a fact that the NBA star could prove through his tax records. He was awarded almost $1.5 million in lost wages by the settlement claims administrator, which was affirmed by the settlement appeal panel, even though he was paid the full amount of his $45 million contract.
As is the case with many superstars paid such sums, for tax purposes the total was front-loaded, with progressively smaller amounts paid the athlete each year. So West, who negotiated the contract four years before the blowout, was able to show that the year after the spill he earned less than the year before. For reasons the Fifth Circuit doesn’t go into, the federal district court then denied discretionary review of the settlement adjudicator’s award decision.
But the appeals jurists reversed the district judge in a terse decision. “The fact that West received less money in 2010 than in 2009 does not mean he ‘lost’ anything or was ‘damaged’ in any way,” their decision reads. “It means only he agreed to a front-loaded contract. And he did so many years before the Deepwater Horizon catastrophe.”
The settlement agreement is a contract, the judges quickly conclude in their decision, and therefore its interpretation is a “question of law” and the appeals court can review de novo. The court takes an excursion into Black’s Law Dictionary to uncover the true meaning of “loss.” The court then cites precedent in saying a claimant must have suffered “actual losses” and “harm” caused by the activity for which the compensation is to be paid. The damages must therefore be “unexpected.” The settlement documents make that clear, the reviewing court said.
Notably, for reasons not elucidated in the decision, the appeals court states it had previously said that proof of loss could substitute for proof of causation in awarding compensation under the settlement agreement. Still, under the court’s own precedent, “We must give ‘some weight’ to ‘what damages recoverable in civil litigation actually are.’” But since West was paid what he expected to be paid, that makes the issue of causation and financial evaluation irrelevant.
Thus the settlement claims panel and the district court erred in granting the compensation, the Fifth Circuit panel concludes.
50 years ago series: The Cuyahoga fire and urban justice.
