Georgia v. Tennesssee Copper Co. , 27 S. Ct. 618 ( 1907 )

Mb. 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 a discharge a wholesale destruction of forests, orchards, and crops is going on, and other injuries are done and threatened iii 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.

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 gtosi-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, 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, 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 yuasi-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 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 bé suffering to their property they should not be-left to an action at law.

The prodf requires but a few words. It is not denied that the defendants generate, in. their works near the Georgia line large quantities .of sulphur dioxid which becomes sulphurous acid, by its mixture with the air. It hardly is: denied and can-'ñot be-denied with-success that this gas often is' carried by the wind great- distances arid' oyer 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 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 con-, sequence of herstanding 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 défense 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 , 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.