The Mining Law of 1872: Past, Politics, and Prospects

12: Environmental Law in the Age of Aquarius

116 chapter 12 environmental Law in the age of aquarius i saw all over the desert what human hands had left: strip mining left a pulverized mountain of debris. —Julia stein, “This Land” in Walker Woman (2002) Miners did not see the environmental law revolution coming, and until anaconda’s smelter closed, many thought public relations and politics would continue to solve their legal problems.1 Miners gathered in conventions and admired their accomplishments rather than reading aldo Leopold’s A Sand County Almanac (1948), rachel L. Carson’s Silent Spring (1962), or Barry Commoner’s The Closing Circle (1971). The Clean air act of 1963 gave the federal government enforcement power over air pollution, and the Water Quality act of 1965 gave similar authority over water pollution on interstate waters. Mining interests watched, but they had defeated the Justice department before and mining was, after all, a needed industry. When the Clean air act was amended in 1967 and 1970, smelter interests saw the return of the smoke wars of the turn of the century. When President nixon signed the national environmental Policy act of 1969 into law on January 1, 1970, the age of aquarius had matured into earth day celebrations and a full-scale attack on polluters, including those patriot prospectors of the american West.2 on July 8, 1971, republican Bob Mathias introduced H.r. 9661 calling for “the California desert national Conservation area.”3 Three weeks later republican Congressman Jerry Pettis put H.r. 10305 in the hopper, calling for an 11-million-acre national conservation area.4 despite the fact that Congress had not amended or repealed the sacred Mining Law of 1872, the nation’s lawmakers had confronted Environmental Law in the Age of Aquarius / 117 environmental pollution head-on, and that included the practices of mining corporations in the West. if the miners missed what was going on in Washington, d.C., they could hardly avoid the dramatic political shift to green in Montana, the home of anaconda Copper Mining Company. in the winter 1970 edition of the Montana Business Quarterly k. ross Toole, a University of Montana history professor, challenged people to stop the pollution. He reviewed the Butte air pollution disaster of 1889–1891, the Bliss case of the deer Lodge Valley farmers of 1911, and the 1957–58 Missoula pulp plant’s water and air pollution. The tired explanations of industry anaconda Copper Mining Company’s “new Works,” constructed with a high stack to offset air pollution litigation of the deer Lodge Valley farmers and ranchers. Courtesy of the Montana Historical society, Helena. 118 / Chapter 12 did not clear the air of the “yellowish-gray, vile-smelling smog.”5 Toole asserted that clean air, clean water, wilderness areas, and beautiful countrysides are not “bonuses” any longer. america is running out of these commodities—and fast. it is trite, but man does not live by bread alone and no planner should forget it. The “quality of life” may not attract industry, but neither should industry be solicited which destroys the quality of life.6 in addition, Toole contended with economists and their cost-benefit analyses. Putting a price on aesthetics was one thing, but knowing that “the number of deaths from lung cancer in the anaconda area is 29 times greater than in the Gallatin Valley . . . and 12 times greater than the national average” was beyond economic models.7 The people of Montana had an interest in health that transcended jobs, Toole argued. The land, water, and air were part of a public trust the people must manage wisely. The solutions were classic: “But, as Cassius said, ‘the fault lies not in our stars, but in ourselves.’ and, therefore, it is correctable. Perhaps the ultimate strength of man lies in some capacity to look into himself and out at the world—and change things. That, at least, is our best hope—and it may well be our last.”8 Toole challenged the people of the last best place to change, and he was not alone. Toole’s message was not the only missive for environmental control . The northern Plains resource Council published The Plains Truth, telling Montanans of the massive strip mining of coal planned for Colstrip and the proposed dam on the Upper Yellowstone river.9 environmental activists in Missoula formed Gals against smog and Pollution to demand legislative reform, and activists in Helena created the environmental...