When the states by their union made the forcible abatement of
outside nuisances impossible to each, they did not thereby agree to
submit to whatever might be done. They retained the right to make
reasonable demands on the grounds of their still remaining
quasi-sovereign interests, and the alternative to force a
suit in this Court.
This Court has jurisdiction to, and at the suit of a state will,
enjoin a corporation, citizen of another state, from discharging
over its territory noxious fumes from works in another state where
it appears that those fumes cause and threaten damage on a
considerable scale to the forests and vegetable life, if not to
health, within the plaintiff's state.
A suit brought by a state to enjoin a corporation having its
work in another state from discharging noxious gases over its
territory is not the same as one between private parties, and
although the elements which would form the basis of relief between
private parties are wanting, the state can maintain the suit for
injury in a capacity as
quasi-sovereign, in which capacity
it has an interest independent of and behind its citizens in all
the earth and air within its domain, and whether insisting upon
bringing such a suit results in more harm than good to its citizen,
many of whom may profit through the maintenance of the works
causing the nuisance, is for the state itself to determine.
The facts are stated in the opinion.
Page 206 U. S. 236
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity filed in this Court by the State of
Georgia, in pursuance of a resolution of the legislature and by
direction of the governor of the state, to enjoin the defendant
copper companies from discharging noxious gas from their works in
Tennessee over the plaintiff's territory. It alleges that, in
consequence of such discharge, a wholesale destruction of forests,
orchards, and crops is going on, and other injuries are done and
threatened in five counties of the state. It alleges also a vain
application to the State of Tennessee for relief. A preliminary
injunction was denied; but, as there was ground to fear that great
and irreparable damage might be done, an early day was fixed for
the final hearing, and the parties were given leave, if so minded,
to try the case on affidavits. This has been done without
objection, and, although the method would be unsatisfactory if our
decision turned on any nice question of fact, in the view that we
take we think it unlikely that either party has suffered harm.
Page 206 U. S. 237
The case has been argued largely as if it were one between two
private parties; but it is not. The very elements that would be
relied upon in a suit between fellow-citizens as a ground for
equitable relief are wanting here. The state owns very little of
the territory alleged to be affected, and the damage to it capable
of estimate in money, possibly at least, is small. 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 independent of and behind the titles of its citizens, 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. It might have to pay
individuals before it could utter that word, but with it remains
the final power. The alleged damage to the state as a private owner
is merely a makeweight, and we may lay on one side the dispute as
to whether the destruction of forests has led to the gullying of
its roads.
The caution with which demands of this sort on the part of a
state for relief from injuries analogous to torts must be examined
is dwelt upon in
Missouri v. Illinois, 200 U.
S. 496,
200 U. S.
520-521. But it is plain that some such demands must be
recognized, if the grounds alleged are proved. When the states by
their union made the forcible abatement of outside nuisances
impossible to each, they did not thereby agree to submit to
whatever might be done. They did not renounce the possibility of
making reasonable demands on the ground of their still remaining
quasi-sovereign interests, and the alternative to force is
a suit in this Court.
Missouri v. Illinois, 180 U.
S. 208,
180 U. S.
241.
Some peculiarities necessarily mark a suit of this kind. If the
state has a case at all, it is somewhat more certainly entitled to
specific relief than a private party might be. It is not lightly to
be required to give up
quasi-sovereign rights for pay;
and, apart from the difficulty of valuing such rights in money, if
that be its choice, it may insist that an infraction of them shall
be stopped. The states, by entering the Union, did not sink
Page 206 U. S. 238
to the position of private owners, subject to one system of
private law. This Court has not quite the same freedom to balance
the harm that will be done by an injunction against that of which
the plaintiff complains, that it would have in deciding between two
subjects of a single political power. Without excluding the
considerations that equity always takes into account, we cannot
give the weight that was given them in argument to a comparison
between the damage threatened to the plaintiff and the calamity of
a possible stop to the defendants' business, the question of
health, the character of the forests as a first or second growth,
the commercial possibility or impossibility of reducing the fumes
to sulphuric acid, the special adaptation of the business to the
place.
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, be
they better or worse, and whatever domestic destruction they have
suffered, should not be further destroyed or threatened by the act
of persons beyond its control, that the crops and orchards on its
hills should not be endangered from the same source. If any such
demand is to be enforced this must be notwithstanding the
hesitation that we might feel if the suit were between private
parties, and the doubt whether, for the injuries which they might
be suffering to their property, they should not be left to an
action at law.
The proof requires but a few words. It is not denied that the
defendants generate in their works near the Georgia line large
quantities of sulphur dioxide which becomes sulphurous acid by its
mixture with the air. It hardly is denied, and cannot be denied
with success, that this gas often is carried by the wind great
distances and over great tracts of Georgia land. On the evidence,
the pollution of the air and the magnitude of that pollution are
not open to dispute. Without any attempt to go into details
immaterial to the suit, it is proper to add that we are satisfied,
by a preponderance of evidence, that the sulphurous fumes cause and
threaten damage on so considerable
Page 206 U. S. 239
a scale to the forests and vegetable life, if not to health,
within the plaintiff state, as to make out a case within the
requirements of
Missouri v. Illinois, 200 U.
S. 496. Whether Georgia, by insisting upon this claim,
is doing more harm than good to her own citizens is for her to
determine. The possible disaster to those outside the state must be
accepted as a consequence of her standing upon her extreme
rights.
It is argued that the state has been guilty of laches. We deem
it unnecessary to consider how far such a defense would be
available in a suit of this sort, since, in our opinion, due
diligence has been shown. The conditions have been different until
recent years. After the evil had grown greater in 1904, the state
brought a bill in this Court. The defendants, however, already were
abandoning the old method of roasting ore in open heaps and it was
hoped that the change would stop the trouble. They were ready to
agree not to return to that method, and, upon such an agreement's
being made, the bill was dismissed without prejudice. But the
plaintiff now finds, or thinks that it finds, that the tall
chimneys in present use cause the poisonous gases to be carried to
greater distances than ever before, and that the evil has not been
helped.
If the State of Georgia adheres to its determination, there is
no alternative to issuing an injunction, after allowing a
reasonable time to the defendants to complete the structures that
they now are building, and the efforts that they are making to stop
the fumes. The plaintiff may submit a form of decree on the coming
in of this Court in October next.
Injunction to issue.
MR. JUSTICE HARLAN, concurring:
The State of Georgia is, in my opinion, entitled to the general
relief sought by its bill, and therefore I concur in the result.
With some things, however, contained in the opinion, or to be
implied from its language, I do not concur. When the Constitution
gave this Court original jurisdiction in cases
Page 206 U. S. 240
"in which a state shall be a party," it was not intended, I
think, to authorize the court to apply in its behalf any principle
or rule of equity that would not be applied, under the same facts,
in suits wholly between private parties. If this were a suit
between private parties, and if, under the evidence, a court of
equity would not give the plaintiff an injunction, then it ought
not to grant relief, under like circumstances, to the plaintiff,
because it happens to be a state, possessing some powers of
sovereignty. Georgia is entitled to the relief sought not because
it is a state, but because it is a party which has established its
right to such relief by proof. The opinion, if I do not mistake its
scope, proceeds largely upon the ground that this Court, sitting in
this case as a court of equity, owes some special duty to Georgia
as a state, although it is a party, while, under the same facts, it
would not owe any such duty to the plaintiff if an individual.