The Soiling of the South: Ducktown Smoke
| Author | Oliver Houck |
| Position | Professor of Law at Tulane University in New Orleans, Louisiana |
| Pages | 8-9 |
Page 8 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, Nov./Dec. 2011
Environmental law professors
teach judicial opinions and,
from time to time, a favor-
ite question is the “top so
many” in the eld. Professor
Lazarus and I concocted a list for a book
of histories (written by others) with the
usual suspects — e.g., Calvert Clis,
Lucas, Chevron, and the sentimental fa-
vorite TVA v. Hill — but we are largely
prisoners of the present. en along
comes a closely contested opinion like
Massachusetts v. EPA, resurrecting a
case like Tennessee Copper, and we feel
the same unease that we would were a
ghost to descend from the attic.
As Ducktown Smoke: e
Fight Over One of the South’s
Greatest Environmental Disas-
ters relates in scrupulous de-
tail, Georgia v. Tennessee (and
the Ducktown, Pittsburgh
and Tennessee copper com-
panies) was the most impor-
tant environmental opinion
of its time, only the second of
the Supreme Court to touch
on the subject, and as hard
fought, divisive, intractable,
political, unpredictable, and
seemingly endless battle as
any of today. It was before the
Court nearly 15 years. It was accom-
panied by hundreds of private suits in
state courts seeking relief from a smoth-
ering and seemingly invincible blight.
It remains with us, looking on perhaps
with favor at the elaborate schemes
with which we now approach pollution
control, but also, just maybe, with the
latent authority to step in again when
things go amok.
We may begin with the photos. I
doubt that many of us have seen their
like short of war. It is as if one were
to superimpose the worst of the Dust
Bowl with abandoned houses topping
bleak ridges of sand, not a live stick to
the horizon, gullies so deep they appear
a scene on Mars, and, tying them to-
gether as if solving the mystery, a wide-
angle shot of the Tennessee Copper
plant on the Ocoee River, half obscured
by its fumes, human gures on the riv-
erbank dwarfed to the size of ants. e
drama of these photos would, it ap-
pears, impress the Court as well.
Only, this is not a natural desert,
nor a landscape devastated by farming
and drought. is is the high moun-
tain joinder of Tennessee and Georgia
(and a small piece of North Carolina)
where rainfall averages ve and a half
feet a year and which boasted some of
the most lush forests in North America.
Add a sprinkling of small farms with
diverse crops that fed the region. ey
would start the cases.
Everything about the story is brutal.
It starts with a land grab, only this one
involved a three-way between the Unit-
ed States, Georgia, and the Cherokee
Nation which had sided with America
during the Revolutionary War and was
about to be liquidated by it. Chief Jus-
tice Marshall had conrmed Cherokee
rights to this land, against Georgia,
only a few years before President An-
drew Jackson overruled him and sent
the natives packing on the Trail of Tears
to another land like the moon, Oklaho-
ma. All of which reinforced a sense of
sovereignty in the Georgian soul. Enter
now the rst copper mining in the high
Ducktown Valley, pre-Civil war, but
the logistics of hauling out the ore were
formidable and the industry was dying
within decades, to be rescued by the ar-
rival of rails. Everyone loved it, Geor-
gia, Tennessee, the increasingly prot-
able companies. en people began to
see what was happening, and it was ap-
palling, like death from the inside out.
Visitors to the region could not view it,
literally, for the smoke. e vegetation
was blasted, as by an explosion, in radi-
als that went out 10, then 20, then 50
miles. When the rains came, up to 16
feet of topsoil ushed away. e farms
too.
In the late 1890s, 10 Georgia farm-
ers brought suit for damages, nine men
and a woman named Mar-
garet Madison who sued as
a “femme sole” and claimed
that all she wanted was “to
grow her bread and eat it.”
ey got nowhere. Compa-
ny lawyers — in a full-court
press of delaying motions,
jurisdictional challenges, leg-
islative maneuvers, and other
tactics plainly designed not
only to wear these plaintis
down but to deter others
from even thinking about
it — tendered de minimus
settlements to seven farmers,
had the eighth dismissed outright, and
received verdicts of $100 and $60 on
the remaining two, which the compa-
nies stalled o for another two years in
appeals. Another brutality, in its way, of
the Ducktown saga. Eectively, the in-
dustry won, which would end the story
in no way remarkably nor remotely
touching the high court of the United
States.
What changed was the politics.
Georgians became increasingly upset
that neighboring Tennessee was pollut-
ing it at will and proting from it, while
their fellow citizens took the hit. e
Ducktown Smoke:
The Fight Over One of
the South’s Greatest
Environmental Disasters,
by Duncan Maysilles,
University of North Carolina
Press, 2011.
IN THE LITERATURE
e Soiling of the South: Ducktown Smoke
By Oliver Houck
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