Gingrich v. Murray: How Government Caused the Cuyahoga River Pollution Fire

Earlier this month, former-Speaker of the House Newt Gingrich met with 63 conservative leaders. In an exchange with CEI’s Myron Ebell, Gingrich said that he “‘was in Congress when the Cuyahoga River caught on fire,’ and thus supports strong government programs to protect the environment.” In his excellent book The Really Inconvenient Truths, CEI’s Iain Murray shows how government intervention actually caused the infamous Cuyahoga fire.

On June 22, 1969, the Cuyahoga River in Cleveland “caught fire.” This fact is indispensible to central-planners and the enemies of industry. The “burning river” is one of the founding myths of big-government-environmentalism—particularly on the federal stage….

The real story is more complex, and a good portion of the blame lies on the shoulders of big government—specifically on the “progressive” abolition of property rights in favor of “common” ownership. In short, one key problem was that nobody had property rights over the river. It was nobody’s “doorstep,” and so everybody was spitting on it.

In early American history, this principle of private ownership supported by common law was the model for waterways. As settlers moved into the drier areas of the country this principle changed, with the “progressive” notion of common ownership replacing it. With water belonging not to individuals, but to the state, the way was opened for pollution. The principle of common ownership contributed to environmental degradation in a way that the tradition of private property did not.

This meant that industrial areas tended to treat their commonly owned rivers as common dumping grounds, hence the mayor’s description of the Cuyahoga as “an open sewer through the center of the city.” The industrialization of the city was viewed by city managers and residents alike as a desirable thing, and the side effects exhibited as the Cuyahoga changed color and odor were viewed as signs of progress. The city moved to take its domestic water from Lake Erie rather than clean up the river.

With oil, debris, and other effluent accepted as part of the river, fires were inevitable, and common. The river is believed to have caught fire in 1868, 1883, and 1887. A river fire in 1912 killed five men. The same spot ignited in 1922, and there was yet another fire in 1930. By 1936, concern was growing, but it concentrated on lack of appropriate fire control services rather than on the state of the river. Fires burst out again in 1936, 1941, and 1948. The 1952 fire was caused after a Standard Oil facility had spread a two-inch thick oil slick across the river, and the resultant blaze caused as much as $1.5 million worth of damage, destroying a shipyard and a bridge. There was no loss of life, if only because the fire started on a Saturday.

Other rivers caught fire in this period: the Buffalo River in New York State in the 1960s, the Rouge River in Dearborn, Michigan (repeatedly), the Schuykill River, and a river leading into Baltimore Harbor. The Cuyahoga was probably the worst offender, but it was by no means alone.

To hear the environmentalist myth, one would believe that the river’s plight was caused by selfish local companies and that the river was saved only by federal intervention in the shape of the Clean Water Act of 1972. Yet cleanup of the Cuyahoga had started after the terrible fire of 1952. In 1959, fish reappeared, testimony to some remarkable progress. The leading businesses of the area formed the Cuyahoga River Basin Water Quality Committee in 1963. In 1968, voters approved by a two-to-one margin a bond issue totaling $100 million for the purposes of cleaning up and protecting the river.

The actions undertaken by the city reflected actions take around the same time by the state of Ohio, and other cities and states around the nation, to control water pollution since the 1950s. When the Environmental Protection Agency undertook its first National Water Quality Inventory in 1973, it found that there had been “significant improvements” in water quality over the preceding decade. What appears to have happened is that the American people in industrial areas had gone through the environmental transition in and around the 1950s and 1960s. They were starting to value clean water for its own sake, rather than viewing the river as a common resource for industrial benefit. Things appeared to have been slowed by a conflict between state and city officials in the 1960s, but there was clear political will for an aggressive approach to cleaning up the river before the Federal action of 1972.

More importantly, however, the capacity for enforcing cleanup of the Cuyahoga was already in place in the shape of the Common Law. It is part of the mythology of the Cuyahoga fire that it demonstrated the failings of the Common Law in protecting against pollution, yet as Jonathan Adler says, the law “may have gotten something of a bum rap.” Indeed, anyone looking for the culprit in the river’s pollution would have to first turn to the government, which relied on “progressive” anti-traditional, anti-property-rights arguments to justify its actions.

By the 1960s, the state of Ohio had basically taken “ownership” of the river. That put the Cuyahoga’s fate in the hands of bureaucrats in Columbus, the state capital, 120 miles from Cleveland, and nowhere near the Cuyahoga. They officially declared the river to be for “industrial use.” Nominally to reduce pollution, the state government issued pollution permits, allowing certain businesses to dump their waste into the river. These state-issued permits completely smashed the recourse the people of Cleveland would traditionally have: common law tort. Adler suggests that one cause was the “state water pollution permitting system which insulated permitted facilities from public nuisance actions and generally inhibited local efforts to combat pollution.”

Cleveland’s utilities director Ben S. Stefanski II explained after the fire that Columbus’s permit system had made the city impotent. “We have no jurisdiction over what is dumped” in the river, he told the Plain Dealer. “The state licenses the industries and gives them legal authority to dump in the river. Actually, the state gives them a license to pollute.”

Far from the government standing by while business polluted the river, sometimes, the government stood in the way while business tried to clean up the river. In 1965, for example, a real estate company sued the city to stop allowing use of the river as an industrial dump. It won, but the verdict was overturned by the state supreme court, which found that state law trumped common law rights. In 1968, Arnold Reitze noted that “common law actions for water pollution abatement are not common and perhaps the protection afforded by the permit system is the reason.”

(Excerpted from The Really Inconvenient Truths, pages 227-232)