Compelling Policy Question: Does the Government have a role in addressing problems related to pollution?

Pollution Policy Case Study: Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)

The State of Georgia has sued in Federal Court asking for an injunction against the Tennessee Copper Company requiring the company to stop their current method of smelting the copper ore.

Historical Context:

In 1843, a man looking for gold in Tennessee found copper. While copper was not as valuable as gold, it is still a valuable metal. By the 1850’s multiple copper mines were in operation in the “Copper Basin” region of Tennessee. By the late 1800’s two companies owned the mines and controlled the copper production in the copper basin. Those companies were the Ducktown Sulphur and Copper & Iron Company, and the Tennessee Copper Company.

After copper ore is mined, it has to go through the smelting process in order to remove the copper metal from the surrounding rock. Ore would be heated over burning wood. While the smelting process was able to get the copper out of the rock, it also released the sulfur content of the rock. Once released the sulfur turned into the gas sulfur dioxide, which rose into the atmosphere. When these chemical compounds rise into the atmosphere they mix with water molecules, then return to the earth’s surface as acid rain. Acid rain kills vegetation.

The acid rain resulting from the smelting process was destroying nearby farmer’s crops, orchards, and woodlots (trees harvested for lumber). Ten of these farmers filed a series of lawsuits in 1906 and 1907. These cases were consolidated when they were appealed to higher courts as Ducktown Sulpher, Copper & Iron Co. v. Barnes. These court cases were based on idea of nuisance law. This legal idea is that one person cannot create a nuisance on their property that harms the use of another person’s property. In this case, it was the smelting of copper ore on the company’s property was a nuisance to the farmers ability to grow crops on their property. Hundreds more lawsuits were filed. Farmers won some of the lawsuits, but typically the amount of time and money they spent on the lawsuit were not worth the amount of money they won from the company as a result of the trial. Worst of all, these lawsuits did not do anything to change the company’s practices.

In 1901 a group of farmers led by a man named William Madison filed a suit against the Ducktown, Sulfur, Copper & Iron Co. (Madison v.Ducktown, Sulfur, Copper & Iron Co.) The goal of this suit was to get an injunction against the Copper company which would require them to stop using their current process of smelting copper. The Madison case made it all the way to the Tennessee Supreme Court. This court ruled in favor of the Copper Company, and refused to issue the injunction (you will read their opinion in Section #2).

In 1903 people living in Georgia who were impacted by the copper smelting done in Tennessee began asking Georgia’s State Government to take action on their behalf. The Georgia State Government first passed a resolution to study the pollution, and after finding it was causing damage, the Governor of Georgia wrote a letter to the Governor of Tennessee demanding the Tennessee Government do something to put an end to the pollution made by the Tennessee Copper Company. When Tennessee refused to take action, the state of Georgia went to the Supreme Court to take legal action.

Section #1 Guiding question: Why do people believe the Government has a responsibility to regulate pollution?

Justice Oliver Wendell Holmes in his 1907 Opinion in Georgia v. Tennessee Copper Co. said...

Case: 206 U.S. 230

(Excerpts/link to original)

[T]he State of Georgia... enjoin(s) the defendant Copper Companies from discharging noxious gas from their works in Tennessee over the plaintiff's territory.

This is a suit by a State for an injury to it in its capacity of quasi-sovereign. In that capacity the State has an interest... in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.

[W]e cannot give the weight … (to the defendant's) comparison between the damage threatened to the plaintiff and the calamity of a possible stop to the defendants' business....

It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains... should not be further destroyed... that the crops and orchards on its hills should not be endangered.... If any such demand is to be enforced this must be...

It hardly is denied and cannot be denied with success that this (sulphuric) gas often is carried by the wind great distances and over... Georgia land. [T]he sulphurous fumes cause and threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff State... The possible disaster to those outside the State must be accepted as a consequence of her standing upon her extreme rights.

[T]here is no alternative to issuing an injunction...

In 1902, a photo was taken of the Tennessee Copper Company's Copperhill Plant in the Ducktown Mining District in Copper Basin Tennessee.

Description of the photo: Smelter building on left has two blast-furnace stacks and converter flue on the roof, a refining building extension on the far side, a covered charging-track trestle, rail track and ore bins to the right. Large 150-ft tall smelter smokestack is present on the hill. Power house/boiler room (center) has two medium stacks. Smelter office building is between smelter and power house. The first laboratory building is on hill behind power house (far right in photo). Locomotive engine house is on lower right, with a small plate/ structural shop beyond. Two covered water tanks for the smelter are on the hill. The large flat area south of smelter and power house has no significant visible slag. East Branch creek is flowing on lower left of photo; trees and grass are present on the Plant site. (Source)

Photo of Tennessee Copper Company smelter from 1904

(courtesy Ducktown Basin Museum )

Section #2 Guiding Question: Why do some people believe the Government does not have a right to regulate pollution?

In 1904, Justice Matthew M. Neil said in his Opinion of the Tennessee Supreme Court in Madison v. Ducktown Sulphur, Copper & Iron Co.

Case: 113 Tenn. 331, 83 S.W. 658 (1904) (Excerpts/ link to full document)

[T]he defendants are conducting and have been conducting their business in a lawful way, without... desire to injure any...

[I]f the injunctive relief (is) granted, the defendants will be compelled to stop operations, and their property will become practically worthless... [A] great and increasing industry in the state will be destroyed...

[T]he two companies pay out annually vast sums of money, which are necessarily of great benefit... [A] laboring population of from ten to twelve thousand people are practically dependent (on them)...

The question now to be considered is... shall (we) blot out two great mining and manufacturing enterprises... and drive more than 10,000 people from their homes? We think there can be no doubt as to what the true answer to this question should be.

[W]e are asked to... wreck two great mining and manufacturing enterprises, that are engaged in work of very great importance, not only to their owners, but to the state, and to the whole country as well...

A postcard was made of the Tennessee Copper Company's smelter in Copperhill, Tennessee in 1908.

The results and consequences of the Debate:

In 1907 the Supreme Court agreed with Georgia’s argument and granted an injunction against TCC, stopping them from using the open roast heap smelting method. However, this injunction was never enforced because the company came up with an alternative solution. The TCC engineers found a way to capture the gases released during the smelting process and make sulfuric acid, another product which they were able to sell. In the end, this new product became more important to the company than the copper they were producing.

Following the Supreme Court decision the mining company, and the Federal Government (through the New Deal) worked to repair the damage done to the environment by planting trees. In addition to planting trees, the Civilian Conservation Corps also built dams to control flooding in the Basin.

***Special thanks to Duncan Maysilles for his help with my research to create this page. You can find the book he wrote about the topic here.