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 [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. 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 [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.
[ Footnote 1 ] 380 F.Supp. 11.
[ Footnote 2 ] The Solicitor General in his brief filed with us states:
[ Footnote 3 ] 498 F.2d 1073, 1084.