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208 8 From Euclid to the Development of Federal Environmental Law The U.S. District Court for the Northern District of Ohio and the Regulation of Physical Space Keith H. Hirokawa In 1969, the federal district court for the Northern District of Ohio occupied a position of potentially profound influence, for the Cuyahoga River was burning . Although the blaze on the river would illuminate the Ohio sky for only twenty-four minutes1 —not even long enough for the local papers to snap a single photograph—the flames would be reflected on the hearts and homes of an entire embattled nation for decades through the flurry of federal environmental laws that followed. The Cuyahoga River became the symbol of a past that the nation would resolve to remedy. The U.S. District Court for the Northern District of Ohio was not called upon to adjudicate the liabilities resulting from this pivotal event. But in the years preceding the Cuyahoga fire, the district court was asked to navigate conflicting jurisprudential approaches to the use of land, air, and water. This chapter explores a handful of these cases, bringing them to light in order to illustrate the nation’s struggle over suspicious conceptions of economic advantage and fairness, flexible distinctions of private and public property, and evolving ideas of nature and health. The chapter begins with the 1924 decision in Ambler Realty Corporation v. Village of Euclid, which remains the most famous chal- 209 From Euclid to the Development of Federal Environmental Law lenge to the constitutionality of zoning regulations. It then turns to the 1930 decision in Swetland v. Curtiss Airports Corporation, where the district court addressed the inevitable limitations in property rights above land following the advancement of powered human flight. Finally, it considers an opinion released on the eve of the Cuyahoga River fire, when the court was asked to choose between saving a town and protecting railroad operations in Biechelle v. Norfolk & Western Railway Company. Although the district court’s decisions in these controversies do not bear the indelible character that we often attribute to law (the Euclid and Swetland opinions were overturned, and the decision in Biechelle might be considered unfortunate), the federal district courts for the Northern District of Ohio contributed to a legal framework in which the fire could occur and, perhaps more significantly, in which the fire could be perceived as an important event. Nature and Nuisance in the Northern District of Ohio It is often said that the exercise of property rights by any one owner must be limited in order to provide such property rights to many. In this regard, nuisance law has been an essential platform for determining when a person’s actions fall outside the protective shelter of property rights. Typically expressed as an unreasonable interference with another individual’s property interests or with the needs of the general public welfare—sic utere tuo ut alienum non laedus (“One should use his own property in such a manner as not to injure that of another”)2 —nuisance acts serve as a limitation on the freedom to control captured water, air, and land. Although the advent of administrative agencies has been the impetus for developing a deeper understanding of how and when land uses cause impacts to others and the environment, nuisance doctrine continues to serve as the foremost catalog of limitations on property rights.3 For the purposes of this chapter, nuisance law is historically relevant because Ohio was particularly industrious in developing its natural resources long before local, state, or federal governments were actively regulating natural resource production. Ohio’s access to commerce via waterways and railroads, as well as its forests and mineral and oil deposits, have allowed the state to host a competitive marketplace. The state claims the first discovery of oil from a drilled well, in 1814, and it was one of the nation’s most productive coal-mining states during the Industrial Revolution.4 With an active industry, of course, came the 210 Keith H. Hirokawa inevitability that nuisance law—especially in conflicts over domestic and industrial pollution, vast landscape transformations, and controversies among competing property claims—would help characterize the geopolitical circumstances of the region. Three preliminary points are salient to understanding the influence of nuisance law on the controversies that loomed in the Northern District. First, nuisance law requires courts to define the scope of property rights, and as such, nuisance is governed by state law. Ohio...

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