On February 18, the U.S. Environmental Protection Agency (EPA) announced its National Enforcement Initiatives for the next three years. See National Enforcement Initiatives, EPA, www.epa.gov/enforcement/national-enforcement-initiatives (last visited July 1, 2016). According to EPA’s press release, “[o]ne of EPA’s top enforcement priorities is to protect safe drinking water, and three of its initiatives include a focus on keeping pollutants out of drinking water.” EPA Announces National Enforcement Initiatives for Coming Year, EPA News Release, Feb. 18, 2016, https://yosemite.epa.gov/opa/admpress.nsf/0/25662047ebab45a085257f5d0071b4a0. Those three initiatives are (1) keeping raw sewage from contaminating surface and groundwater, (2) preventing animal waste from contaminating surface and groundwater, and (3) keeping industrial pollutants out of the country’s waters. EPA’s focus on keeping pollutants out of water stems in part from the drinking water crises in Flint, Michigan; Toledo, Ohio; and Charleston, West Virginia.
These recent events have shed light not only on the known dangers, such as lead, but also on the plethora of chemicals in the water system with unknown impacts. A New York Times article about Flint published shortly before EPA announced its initiatives highlighted the hidden problem posed by a “soup of contaminants” that includes 100 potentially risky chemicals and a dozen microbes listed on the Contaminant Candidate List (CCL) issued by EPA under the Safe Drinking Water Act. Michael Wines & John Schwartz, Unsafe Lead Levels in Tap Water Not Limited to Flint, New York Times, Feb. 8, 2016, www.nytimes.com/2016/02/09/us/regulatory-gaps-leave-unsafe-lead-levels-in-water-nationwide.html?_r=0. “How do you look at the long-term impact of these trace chemicals?” asked one scientist. “That’s what we’re trying to wrap our heads around. The research that could determine whether anything is a problem is very complicated.” Id.
In the midst of these drinking water crises and enforcement initiatives aimed at keeping pollutants out of the water, it is worth considering the long history of public health concerns about dirty water in the United States. That history predates the fires that burned on the Cuyahoga River and Rachel Carson’s warnings in Silent Spring, which are considered by many to be turning points in the history of environmental law, and stretches back to at least the early nineteenth century. Looking at this early history, it becomes apparent that the attempt to abate polluted water and obtain safe drinking water has been a long-standing struggle and that many of these challenges arose amidst scientific uncertainty.
In the nineteenth and early twentieth centuries, government officials, medical experts, engineers, citizens, and judges often grappled with the legal challenges presented by contaminated water in the context of public health regulations, state and local laws and ordinances, and decisions by the courts in private and public nuisance suits. Snapshots of four American cities at three different times—Boston in the early nineteenth century, Memphis in the mid-to-late nineteenth century, and Chicago and St. Louis at the turn of the twentieth century—provide illustrative examples of the public health threats associated with polluted water that emerged against a backdrop of scientific uncertainty.
Contaminated water was ubiquitous in early nineteenth-century Boston. Its prevalence in privies and cesspools, underground drains, and tidal flats made seepage into sources for potable water common. One body of water, Mill Pond, was described as a “capacious receptacle and reservoir of all the filth and putrescent substances of a considerable portion of said town; above ninety privies are emited [sic] into said Pond; a great number of common sewers flow into it. . . .” Nancy S. Seasholes, Gaining Ground: A History of Landmaking in Boston, 77 (2003) (quoting petition of citizens advocating that Mill Pond be filled).
Some Bostonians viewed the omnipresence of polluted water as problematic because of fears that it was the cause of epidemic diseases, such as yellow fever, which had killed more than 300 people in Boston in 1798. According to the miasma theory, diseases emanated from contaminated water and effluvia. But under the contagionist theory, diseases were transmitted from person to person. The lack of scientific clarity on the mechanism for disease transmission led Boston health officials to institute an array of measures. They established sanitation rules and filled in stagnant water bodies as a way to curb miasmatic conditions, and they deployed quarantine rules at ports to blockade contagion from other places.
Boston’s Mill Creek, which originally connected Mill Pond with Boston Harbor, was emblematic of the nuisance presented by a contaminated body of water. The city filled in Mill Creek in 1828–1829 to protect the public health, and this effort was at the center of a case that reached Massachusetts’ highest court. In Baker v. Boston, the plaintiff alleged that the city’s filling in of the creek interfered with his use and benefit of the creek. See 12 Pick. 184, 189–90 (Mass. 1831).
Massachusetts’ Supreme Judicial Court ruled in favor of the city, grounding its decision in the police power, which is “the ability of a state or locality to enact and enforce public laws regulating or even destroying private right, interest, liberty, or property for the common good.” William J. Novak, The People’s Welfare: Law & Regulation in Nineteenth-Century America, 13 (1996). The court stated:
It has not been denied, nor can it be, that the mayor and aldermen . . . are clothed with legislative powers and prerogatives to a certain extent, and that they are fully empowered to adopt measures of police, for the purpose of preserving the health, and promoting the comfort, convenience and general welfare of the inhabitants within the city. Among these powers no one is more important than that for the preservation of public health of the citizens.
Baker, 12 Pick. at 197–98. The court added that to the extent the city interfered with the plaintiff’s private rights, he was “compensated by sharing in the advantages arising from such beneficial regulations.” Id. at 198.
A few decades later, Memphis faced similar challenges with poor sanitation and outbreaks of disease. Like most Americans of the era, Memphians deposited most of their sewage into privies and cesspools, many of which were located near wells. And they suffered from cholera, dysentery, and yellow fever with staggering impacts: 2,000 people died in an 1873 yellow fever epidemic, and 5,150 people died from an epidemic in 1878.
Memphis leaders sought to address this public health issue on several fronts, including changes to the legal structure to give more regulatory authority to the city. In 1879, the state legislature repealed the city’s charter, and the governor signed a bill creating a taxing district of Shelby County. This law transferred taxing power to the state and provided that the city would be run under three fire and police commissioners. The focus on public health was validated when the National Board of Health Commissioners completed a sanitation survey in 1880. According to the survey, 6,000 Memphis privies were unclean, and more than 3,000 wells and cisterns were within 50 feet of privies.
Memphis’s decision about what type of sewer system to build occurred in the context of two ongoing debates. First, engineers and officials discussed the merits of a combined sewer that carried both wastewater and storm water versus a separate sewer that carried only wastewater. Second, the emergence of the germ theory, which confirmed the contagionist theory about person-to-person transmission of disease, had fundamentally changed how people saw their relationship with nature. However, environmental sanitation, which was rooted in the miasma theory, remained a force in discussions about supplying clean water and disposing of dirty water. See Martin V. Melosi, The Sanitary City: Urban Infrastructure in America from Colonial Times to the Present, 103–116 (1999).
Memphis selected a separate sewer designed by George Waring, a proponent of the miasma theory who had worked with Frederick Law Olmsted on drainage for Central Park in New York City. The state legislature then enacted a law enabling the district to levy a sewer tax. Waring’s system, which did not provide passage for storm water, had significant flaws. The pipes clogged and the city did not construct an outlet to the Mississippi River, which in turn led discharges to be deposited in a local bayou. Yet by 1893, the city had built more than 50 miles of sewers.
A few hundred miles north of Memphis along the Mississippi River, a rise in deaths from typhoid fever in St. Louis demonstrated the interstate conflicts that emerged as regulatory bodies exercised expanded authority. According to the state of Missouri, this increase in the years 1900 to 1903 was due to Chicago’s reversal of the flow of the Chicago River away from Lake Michigan and toward the Mississippi. The reversal began in January 1900, and in that same month, Missouri filed an original action in the United States Supreme Court alleging that the reversal resulted in the discharge of “1,500 tons of poisonous filth daily into the Mississippi . . . so as to make it unfit for drinking, agricultural, or manufacturing purposes” and seeking an injunction. Missouri v. Illinois, 200 U.S. 496, 517 (1906).
After surviving a motion to dismiss, Missouri filed a supplemental complaint alleging that the fears raised in the initial complaint had become realities, and in particular, that typhoid bacillus in the water traveled from Chicago and caused the rise in typhoid fever deaths. The Court initially observed that had the lawsuit been brought 50 years earlier, it would have failed because “[t]here is no pretense that there is a nuisance of the simple kind that was known to the older common law,” thus alluding to the significant changes spurred by the germ theory. 200 U.S. at 522. The Court assumed that the germ theory explanation for typhoid fever was correct, but stated “beyond that assumption, everything is involved in doubt.” Id. at 523.
The parties’ experts conducted experiments and reached different views on factual issues, such as the time it would take bacilli to travel to St. Louis and whether they could survive the journey. The Court ultimately determined that Missouri had failed to meet its burden of showing a link between the discharges in Chicago and the typhoid fever in St. Louis. In the Court’s opinion, Justice Oliver Wendell Holmes noted that some of the pollution had come from Missourians and that Missouri will “not improbably find itself a defendant to a bill by one or more of the states lower down the Mississippi.” Id.
Although significant progress has been made in sanitation, Americans today continue to face public health challenges from contaminated water, as shown not only by recent drinking water crises, but also by deficiencies in municipal sewer systems. EPA has entered into consent decrees with numerous cities to settle claims that the cities were violating the Clean Water Act because of unlawful wastewater and storm water discharges. Boston, Memphis, Chicago and St. Louis represent four of those municipalities. See Boston Water and Sewer Commission Settlement, EPA Enforcement, Aug. 23, 2012, www.epa.gov/enforcement/boston-water-and-sewer-commission-settlement; City of Memphis—Tennessee Sanitary Sewer Overflow Statement, EPA Enforcement, Apr. 26, 2012, www.epa.gov/enforcement/city-memphis-tennessee-sanitary-sewer-overflow-settlement; Metropolitan Water Reclamation District of Greater Chicago Settlement, EPA Enforcement, Dec. 14, 2011, www.epa.gov/enforcement/metropolitan-water-reclamation-district-greater-chicago-settlement; St. Louis Clean Water Act Settlement, EPA Enforcement, Aug. 4, 2011, https://www.epa.gov/enforcement/st-louis-clean-water-act-settlement (each last visited July 1, 2016).
As in the past, current public health challenges are complicated by the fact that health and government officials often act amidst scientific uncertainty. For example, as part of regulating drinking water, EPA must publish every five years the CCL, “a list of contaminants which, at the time of publication, are not subject to any proposed or promulgated national primary drinking water regulation, which are known or anticipated to occur in public water systems, and which may require regulation.” 42 U.S.C. § 300g-1(b)(1)(B)(i). EPA issued a draft of the fourth CCL on February 4, 2015. See 80 Fed. Reg. 6076. The uncertainty surrounding the “soup of contaminants” in water systems is similar to the uncertainty about the causes of disease in the nineteenth and early twentieth century. These snapshots of how cities such as Boston, Memphis, Chicago, and St. Louis addressed public health crises that emerged amidst scientific uncertainty provide historical perspective on the challenges presented by dirty water and disease.