Interstate and Federal Responses to Pollution

Law on water pollution continued to develop differently from law on air pollution during the twentieth century. In the United States, states improved their water pollution control administration and legislation before the mid-twentieth century, and many states also became parties to interstate compacts that managed water quality in interstate waters.

Moreover, the federal government increased its role in water pollution control throughout the twentieth century. In contrast, air pollution drew little attention at the state and federal levels before the late 1950s. However, under federal leadership the development of air pollution policy has been faster since the early 1960s than that of water pollution policy.

Water pollution already had interstate effects at the beginning of the twentieth century. For example, New York Bay was badly polluted by oil and industrial effluents in the late nineteenth century, and the Ohio River was polluted by phenols by World War I. States also initiated suits over interstate water pollution in the Supreme Court of the United States.

In 1901 the state of Missouri complained about the state of Illinois's endorsement of Chicago's plans to discharge its sewage into the Mississippi River. Chicago pursued the plan to protect water quality in Lake Michigan, its primary water supply. The plan involved the building of a shipping and sanitary canal to divert the Chicago River from Lake Michigan to the Illinois River, which flowed into the Mississippi River.

Chicago also diverted water from Lake Michigan to the canal to augment its flow and to flush its sewage down the new route. Chicago was involved in further litigation because its pumping of water lowered the water level in the Great Lakes. The Supreme Court ultimately required Chicago to build a sewage treatment plant—at the time the largest in the world.

The states of New York and New Jersey in turn litigated over New Jersey's plans to construct a trunk sewer to discharge sewage into New York Bay (New York v. New Jersey, 1921), as well as over New York's dumping of wastes into the sea off the coast of New Jersey (New Jersey v. City of New York, 1931, 1932, 1933).

The U.S. federal government made its first interventions in the issue of water pollution to protect interstate commerce and navigation. Congress enacted the Refuse Act of 1899 to protect navigation from widespread dumping of wastes. The act prohibited the dumping of wastes into navigable waters without a permit issued by the Army Corps of Engineers.

In 1924 Congress enacted the Oil Pollution Control Act to clarify the responsibilities for oil spills that occurred in coastal waters. The growth of oil refining and use of petroleum-based products had by this time caused frequent oil spills that threatened navigation, the coastal tourist industry, and recreation. However, these early federal statutes were seldom invoked against polluters.

Of more consequence was the establishment of the U.S. Public Health Service in 1912 with an authorization to research water pollution and its effects on public health. This research ultimately established the foundations for understanding the effects of pollution, such as the depletion of oxygen in watercourses. The federal government also funded water pollution control projects, such as the sealing of old mines and the construction of trunk sewers during the Great Depression.

Water pollution rose to the U.S. national political agenda in the 1930s, when the Izaak Walton League and other conservation groups promoted federal legislation and administration as a response to worsening water pollution. A water pollution control bill passed both houses during the 74th Congress in 1935, but proponents of federal water pollution policy ultimately prevented passage of the bill because of its weakness.

During the next session of Congress water pollution control bills again passed both houses, only to be vetoed by President Franklin D. Roosevelt, who saw that the bills' grant-in-aid program could not be afforded under the growing threat of war. Instead, the federal government promoted interstate compacts for the management of water quality in interstate waters. A number of interstate compacts were indeed negotiated and established in the 1930s and the 1940s.

However, the compacts remained largely ineffective because the interstate commissions did not usually have rulemaking powers and had no or only weak enforcement powers Congress established a temporary federal water pollution control program in 1948. The Water Pollution Control Act declared polluting interstate waters so as to endanger public health or welfare in another state to be a public nuisance.

The act empowered the U.S. surgeon general to abate such nuisances, but the proscribed enforcement procedures were weak. The act also provided inexpensive federal loans for the planning and construction of municipal sewage treatment plants, but funds were never appropriated for that purpose. The act also authorized the surgeon general to study water pollution problems and their abatement with state authorities.

The Federal Water Pollution Control Act (FWPCA) of 1956 established the permanent federal water pollution control program but declared water pollution control to be a primary responsibility of the states. The act eliminated all references to public nuisance and weakened the already weak federal enforcement powers. On balance, the act transformed the federal loan program into a grant-in-aid program, which promised a maximum of 30 percent or $250,000 of the construction costs of municipal sewage treatment plants.

The FWPCA amendments of 1961, 1965, 1966, and 1970 gradually extended the jurisdiction of federal legislation from interstate waters to all navigable waters, simplified and solidified the enforcement provisions, and made important changes to the administration of the program. The amendments also increased federal funding of municipal sewage treatment plants. The FWPCA of 1970 in turn comprehensively revised the Oil Pollution Control Act of 1924.

Despite amendments to the federal water pollution control program, it remained ineffective. Twenty enforcement conferences were held in the early 1960s, but only one resulted in a court proceeding. Even that proceeding, against the city of St. Joseph, Missouri, was settled out of court. Moreover, federal legislation did not respond to the emerging water pollution problems that repeatedly alarmed the public.

The linking of Minamata disease (a neurological disorder) to mercury in the 1950s caused alarm when high mercury concentrations proved to be common. The development and increased use of synthetic pesticides and other chemicals caused large-scale fish kills and bird kills that alarmed the public in the 1950s and the 1960s. Nonbiodegradable synthetic detergents produced long-lasting foam that blanketed many watercourses.

In 1969 the Cuyahoga River in Cleveland caught fire because of the oil and chemicals discharged into it. The Reserve Mining Company discharged asbestos-containing tailings into Lake Superior, polluting the water supply of several cities with a known carcinogen (United States v. Reserve Mining Co., 1974).

Increased public exposure to and awareness of environmental problems contributed to environmental activism in the 1960s and 1970s. Some activism was channeled into the courts, where citizen groups challenged both polluters and the federal government. For example, environmental activists used the citizen enforcement provisions of the Refuse Act of 1899 to begin court proceedings against industrial water polluters. In part as a response to these pressures, Congress enacted the Clean Water Act of 1972, which established the framework of the contemporary federal water pollution control program.

Air pollution also had interstate effects by the early twentieth century. For example, in 1907 the state of Georgia complained in the Supreme Court of the United States that smelter emissions that originated from the state of Tennessee caused property damage in Georgia (Georgia v. Tennessee Copper Co., 1907).

The United States engaged in a dispute with Canada in the 1930s over the sulfur dioxide emissions of a Canadian smelter in Trail, British Columbia, that injured property and other interests in the state of Washington. However, it was the "killer smogs" in Donora, Pennsylvania, in 1948; in London in 1948, 1952, and 1956; and in New York City in 1965 that finally stirred the U.S. federal government to action.

Federal air pollution control legislation saw daylight in 1955. The federal view was still that air pollution is "essentially a local problem" (Davies 1970, 45), and thus the act of 1955 provided funding only for research on air pollution. In 1960 Congress established the Division of Air Pollution to the Public Health Service. In 1963 the federal program was extended to include provisions for abating interstate air pollution and for giving federal grants to state and local air pollution control agencies.

However, only one enforcement action—United States v. Bishop Processing Co. (1970)—was ever decided in the courts on the basis of these provisions. The federal program developed faster after the mid-1960s. The Clean Air Act amendments of 1965 established federal regulation of new automobile emissions.

The New York City killer smog of 1965 expedited reforms included in the Air Quality Act of 1967, such as establishment of air quality criteria for the protection of welfare and public health, ambient air quality standards, air quality control regions, and state air pollution control programs.

The Clean Air Act amendments of 1970 then established the framework of the contemporary federal air pollution control program by increasing federal authority and by moving the administration of the program to the newly established Environmental Protection Agency (EPA).