Duncan Maysilles '79

September 16, 2011Duke Law News

“It is hard to make a desert in a region that receives almost sixty inches of rain each year, but that is exactly what happened in the Ducktown Basin.”

In his new book, Ducktown Smoke, Duncan Maysilles offers that blunt summary of the environmental devastation caused by sulfur dioxide pollution in a Southern Appalachian mountain basin in the late 19th century. A byproduct of the smelting practices of two copper mining giants operating in Tennessee, toxic smoke, combined with destructive logging by the industry, gradually laid waste to timber stocks and crops, most of which were in neighboring Georgia. It also gave rise to decades of litigation — more than 250 private nuisance actions were filed against the copper companies in a 25-year period by residents, loggers, and farmers — and the first case of cross-border air pollution, Georgia v. Tennessee Copper Co., to come before the Supreme Court.

Maysilles, a commercial litigator at King & Spalding in Atlanta, began his research into the Ducktown disaster and the litigation it spawned while pursuing graduate studies in history at the University of Georgia, where he received his PhD in 2008. His immensely readable book picks up the story with the seizure of the region from the Cherokee; follows it through its vegetative reclamation over the last half century; and culminates with the Supreme Court’s citation of Georgia v. Tennessee Copper Co. in its 2007 decision in Massachusetts v. EPA, its first ruling relating to global warming.

A landmark ruling
The Court’s 1907 ruling in Georgia v. Tennessee Copper Co. broke new ground in holding that states have a quasi-sovereign interest in protecting the natural resources within their boundaries. “In his ruling, Chief Justice Holmes completely recast the litigation, saying, ‘This is a suit by a State for an injury to it in its capacity as a 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.’

“By characterizing the action as being about the state’s right to control its natural resources — the quality of air, the quality of the water, and the woods — he virtually created the federal common law of nuisance, for the purposes of interstate pollution. And the federal courts ran with that for decades.

“It was Holmes’ capacity to reframe nuisance law, at least at the Supreme Court level, in order to embrace the state’s interest in its own environment that was the groundbreaking part.”

The ruling influenced decades of federal pollution actions, including many cases of smelting pollution in the West, until it was supplanted by the preemption law doctrine, and then revived exactly a century later in Massachusetts v. EPA to provide the rationale for allowing states to have standing to pursue their challenge against the agency for its failure to regulate greenhouse emissions from new automobiles.

Private litigants face frustration and failure in state courts

Long before it got to the Supreme Court, hundreds of private litigants largely failed in their nuisance actions against the Tennessee Copper Company (TCC) and the Ducktown Sulfur, Copper & Iron Company (DSC&I). Maysilles recalls, with a historian’s evident glee, gaining access to newly discovered century-old records kept by corporate counsel detailing their litigation strategy.

“One of the most important documents I found was a letter from corporate counsel to DSC&I, saying they wanted to pursue the legal strategy of ‘keeping a blocked docket,’” he says. “In short, their goal was to use every legal procedural maneuver in order to delay and prevent cases from ever reaching trial.” One of the ways they did this was by exploiting the sharp distinctions between Tennessee’s separate courts of law and equity. It was a winning strategy; the plaintiffs and their attorneys spent years “hopping up and down the appellate ladder” without ever getting their cases to trial and, when they did, any damage awards were often insignificant compared to the damage they suffered, which was profound.

The frustration and anger of the Georgian Ducktown claimants eventually reached Atlanta and Georgia’s General Assembly authorized a federal lawsuit. As framed by Attorney General John C. Hart, the action asked the United States Supreme Court to use its original jurisdiction — essentially to sit as a trial court — to consider its request for an injunction to stop the smelting on the grounds “that sulfur smoke from the mines was ‘a hostile invasion upon the state of Georgia,” Maysilles writes. A provocative claim, it was also highly problematic; in a common law nuisance action, the state would have to argue and prove it had a direct property interest in the case, but it held no public domain lands in the Ducktown region.

That’s when a novel claim became truly cutting edge, Maysilles says. Logging magnate W. H. (Will) Shippen connected Hart and his special counsel, Ligon Johnson, to federal forestry officials and scientists who were surveying forestry conditions in the Southern Appalachians, and the state officials tied their case to the federal forestry conservation movement.

The federal government’s interest was twofold, Maysilles explains: to assess the health of forests in light of fears of a national “timber famine,” and to bolster a constitutionally sound rationale for creating national forests in a region where most lands were privately held. It was one rooted in interstate travel, commerce, and especially navigation — and largely based on the arguments detailed by George Perkins Marsh in his 1864 book Man and Nature, Maysilles says.

“Marsh argued that destruction of forests would result in diminished stream flow, flooding, siltation, changes in local climate, loss of fertility, and a whole host of other consequences,” he says, adding that federal government scientists were conducting some of the first air pollution studies as part of their forestry research. Hart and Johnson embraced the new research and its rationale, and set about persuading the high court that the case involved natural resource issues. It was very different from the farmers’ smoke suits, as evidenced by the state’s brief to the Supreme Court.

“It had only a handful of citations to any opinions or any statutes,” Maysilles observes. “Instead, more than 70 pages consisted of quotations, pictures, and scientific opinions, largely drawn from a forestry report from the Secretary of Agriculture and the work of other scientists and field researchers. They made their case through the government’s presentations.” The state also benefited from the visual impact of its case: Instead of heavily wooded mountains, the Court saw images of bare, brown desert. “That’s why, when Chief Justice Holmes was reviewing the evidence, he dismissed the issue of damages in one sentence,” says Maysilles. “He said, ‘The pollution of the air and the magnitude of that pollution are not open to dispute.’”

A fundamental tension: jobs v. the environment
Although Georgia prevailed in winning the right to shut down the smelting at the root of the smoke problem, it never wanted to shut down an industry central to the Ducktown region’s economy. In his opinion, Holmes also questioned whether it would be in the state’s interests to do so, Maysilles points out. Instead, the state used the Supreme Court grant of injunctive relief as leverage to force industry changes. The copper companies were eventually persuaded to employ state-of-the-art technology to capture sulfur dioxide smoke, thus removing it from the air to the greatest extent possible; they subsequently found a profitable market in beneficial byproducts, such as sulfuric acid used to convert the South’s abundance of phosphate rock into fertilizer.

“This was part and parcel with a fundamental tension of environmental litigation: jobs vs. the environment,” says Maysilles, who reviewed correspondence from the copper attorneys to Georgia’s attorney general detailing exactly how many Georgians were employed in the Tennessee mines, and how much the industry contributed to Georgia merchants and vendors.

Having spent years immersed in every aspect over the Ducktown pollution saga, Maysilles still marvels at the constituencies that came together in an epic legal battle well ahead of its time.

“These days, environmental law is driven by the environmental agencies and an environmentally aware public. ” he says. “Back then, they simply did not have a national, wide-scale appreciation of the whole ecological paradigm; it hadn’t developed yet. They also lacked a fully developed understanding of the impact of pollution upon public health. The science wasn’t there, the public awareness wasn’t there, and while there were prophets arguing for national forests, national parks, and in public recreation, there weren’t that many of them. You didn’t have environmental interest groups or an environmentally conscious public, apart from the forest conservation movement. So the pressure had to come from somewhere else.

“And I think the understanding of the debate and the ability to dialogue about it comes when we appreciate that those factors — the need to balance the health of people and the environment with the health of the economy — were always present, they are legitimate concerns, and there is rarely a situation when you want to solve it with a zero-sum solution. Seeing all the pieces back then and seeing how they put it all together, continues to fascinate me.”
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Ducktown Smoke is published by the University of North Carolina Press.
Duncan Maysilles

Photo Credit: Chris Rank

In addition to his work as a lawyer and historian, Duncan Maysilles is a musician who plays American roots music on the clawhammer banjo, mandolin, and hammer dulcimer.