Applications to Vacate Stay.
The respective applications for an order vacating or modifying
the stay order of the United States Court of Appeals for the Eighth
Circuit, presented to Mr. Justice BLACKMUN and by him referred to
the Court, are each denied. Four Justices, however, state
explicitly that these denials are without prejudice to the
applicants' renewal of their applications to vacate if the
litigation has not been finally decided by the Court of Appeals by
January 31, 1975.
Mr. Justice DOUGLAS, dissenting.
I would vacate the stay issued by the Court of Appeals.
Judge Lord made detailed findings as to the health hazard of the
respondent's discharges into the air and into the waters of Lake
Superior, 1 findings which I attach as an Appendix to this opinion.
The Court of Appeals disagreed with Judge Lord's conclusion
Page 419 U.S.
802 , 803
but it stopped short of holding that his findings were 'clearly
erroneous' within the meaning of Rule 52(a) of the Rules of Civil
Procedure. Even in its view, the issue, however, was close or
rather neatly balanced. [
Footnote
2] It therefore decided that being 'a court of law' it was
'governed by rules of proof' and that 'unknowns may not be
substituted for proof of a demonstrable hazard to the public
health.'3
That position, however, with all respect makes 'maximizing
profits' the measure of the public good, not health of human beings
or life itself. Property is, of course, protected under the Due
Process Clause of the Fifth Amendment against federal intrusion.
But so is life and liberty. Where the scales are so evenly divided,
we cannot say that the findings on health were 'clearly erroneous'
nor am I able to discover how 'maximizing profits' becomes a
governing principle overriding the health hazards. If equal justice
is the federal standard, we should be as alert to protect people
and their rights
Page 419 U.S.
802 , 804
as the Court of Appeals was to protect 'maximizing profits.' If,
as the Court of Appeals indicates, there is doubt, it should be
resolved in favor of humanity, lest in the end our judicial system
be part and parcel of a regime that makes people, the sovereign
power in this Nation, the victims of the great God Progress which
is behind the stay permitting this vast pollution of Lake Superior
and its environs. I am not aware of a constitutional principle that
allows either private or public enterprises to despoil any part of
the domain that belongs to all of the people. Our guiding principle
should be Mr. Justice Holmes' dictum that our waterways, great and
small, are treasures,4 not garbage dumps or cesspools.
APPENDIX TO MR. JUSTICE DOUGLAS' DISSENT
(3) The particles when deposited into the water are
dispersed throughout Lake Superior and into Wisconsin and
Michigan.
(4) The currents in the lake, which are largely
influenced by the discharge, carry many of the fibers in a
southwesterly direction toward Duluth and are found in substantial
quantities in the Duluth drinking water.
(5) Many of these fibers are morphologically and
chemically identical to amosite asbestos and an even larger number
are similar to amosite asbestos.
(6) Exposure to these fibers can produce asbestosis,
mesothelioma, and cancer of the lung, gastrointestinal tract and
larynx.
(7) Most of the studies dealing with this problem are
concerned with the inhalation of fibers; however, the available
evidence indicates that the fibers pose a risk when ingested as
well as when inhaled.
(8) The fibers emitted by the defendant into Lake
Superior have the potential for causing great harm to the health of
those exposed to them.
(9) The discharge into the air substantially endangers
the health of the people of Silver Bay and surrounding communities
as far away as the eastern shore in Wisconsin.
(10) The discharge into the water substantially endangers the
health of the people who procure their drinking water from the
western arm of Lake Superior including the communities of Beaver
Bay, Two Harbors, Cloquet, Duluth, and Superior, Wisconsin.
(11) The present and future industrial standard for a safe level
of asbestos fibers in the air is based on the [804-Continued.]
experience related to asbestosis and not to cancer. In addition
its formulation was influenced more by technological limitations
than health considerations.
(12) The exposure of a non-worker populace cannot be equated
with industrial exposure if for no other reason than the
environmental exposure, as contrasted to a working exposure, is for
every hour of every day.
(13) While there is a dose-response relationship associated with
the adverse effects of asbestos exposure and may be therefore a
threshold exposure value below which no increase in cancer would be
found, this exposure threshold is not now known.
Footnotes
Footnote 1 380 F. Supp.
11.
Footnote 2 The Solicitor
General in his brief filed with us states:
'In all of this the court of appeals
has proceeded on an admittedly preliminary assessment, based on
limited exposure to the voluminous record, of the question whether
the continued daily discharge of some 67,000 tons of suspended
solid waste into Lake Superior and some 100 tons of particulate
matter into the air constitutes a significant threat to public
health. While we believe that the court of appeals' conclusion in
this regard rests upon crucial assumptions that are refuted by the
substantial evidence of record here, we do not think it appropriate
to attempt to argue such evidentiary issues to this Court on an
even more limited record. Suffice it to say that there is no
serious dispute that the amphibole discharges in question are
widely believed to entail a risk of asbestosis, cancer, and other
adverse health consequences, and the only real dispute concerns the
quantitative assessment of the likelihood of such consequences-an
assessment that is particularly difficult here because of the
apparently long-term and cumulative results of exposure to such
materials.'
Footnote 3 498 F.2d
1073, 1084.
Footnote 4 New Jersey v. New
York,
283 U.S.
336, 342.
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