Anatomy of a Green Gavel

Michigan Supreme Court Historical Society

 Anatomy of a Green Gavel
John D. Voelker upheld a Detroit air pollution ordinance 11 years before the Clean Air Act
by Drew YoungeDyke

 In a recent article for Michigan Trout and Riverwatch, I speculated that Justice John D. Voelker, who wrote Trout Madness and Anatomy of a Murder under the pen name of Robert Traver, probably would have earned a “Green Gavel” or two; after all, he was a trout fisherman. Justice Voelker served on the Michigan Supreme Court from 1956 to 1960, a little over twenty years before the era covered by the Michigan League of Conservation Voters’ new Green Gavels program, which evaluates environmental cases decided by the Court since 1982.

Well, as it turns out, I was right. Justice Voelker wrote many opinions during his time on the Court, in cases ranging from auto accidents to divorces, with his characteristic wit known to anyone who has ever read one of his books. The 1959 case of Port Huron Cement Company v. City of Detroit was no exception, when Justice Voelker wrote the Court’s opinion about a Detroit air pollution ordinance.

Prior to the 1970 Clean Air Act, there were no federal air quality standards. However, the problem of air pollution was already recognized and some cities and states were enacting their own air quality laws. Detroit was one such city, enacting a smoke abatement ordinance which prohibited smoke emissions over a certain density. Two steamers owned by the Port Huron Cement Company violated this ordinance while docked at the port of Detroit.

Detroit filed a complaint, and the company filed a lawsuit to block the city from enforcing its ordinance, arguing that federal laws regulating interstate commerce pre-empted the city from enforcing its own air pollution ordinance. Pre-emption occurs when the federal government regulates an area of law so fully that there is no room for state or local regulation. Justice Voelker had to decide whether or not Detroit’s ordinance was pre-empted by federal interstate commerce regulations.

To do this, Voelker broke the case down into three issues: 1) whether Detroit’s ordinance conflicted with any federal ordinances, 2) whether Detroit’s ordinance sought to regulate interstate commerce, and 3) whether Detroit’s ordinance was reasonable.

Voelker decided that Detroit’s air pollution ordinance did not conflict with any federal ordinances and that it only incidentally affected interstate commerce, as its primary purpose was to protect the health of Detroit residents. It was in Voelker’s analysis of the third issue, though, where his thoughtful wit really shined.

This son of the U.P., who had written so extensively about his native pine-covered peninsula, betrayed some of the angst that many feel when compelled to leave the northwoods for the cities of the south, like Lansing or Detroit, and in doing so identified problems and solutions which still exist as succinctly as anyone could. He wrote:

…we reluctantly realize that the pastoral pine-scented days of yore are gone forever, and that our society has become dependent upon vast conglomerates of power of which smoke is all too frequently an unwanted by-product … It does not follow, however, that if we cannot have smokeless cities that men must compose themselves and dwell in an ever-deepening pall of smoke … [T]his ordinance concededly seeks to outlaw only the emission of smoke of such density that can readily be prevented by the use of modern smoke control equipment. All it costs is money.

Justice Voelker upheld the Detroit air pollution ordinance and for that, I am sure, he would have earned himself a Green Gavel. The United States Supreme Court even affirmed his decision in 1960. Voelker also identified an issue with which we still struggle, over fifty years later, as the EPA attempts to control air pollution which “can readily be prevented by modern … equipment,” in the face of opposition from those who believe that short-term marginal profits are a higher priority than the quality of the air we breathe and the health of those who breathe it.

Over a decade before the Clean Air Act was enacted, Justice Voelker predicted it and upheld the ability of Detroit to protect its citizens until then, writing:

We concede that this subject is one that might well call for uniform legislation of federal scope, but until that happens we are not persuaded that our citizens must patriotically gag, choke and grope with obedient resignation until that happy day arrives.

Just as his pen name Robert Traver did in novels like Anatomy of a Murder, Justice Voelker addressed a serious topic with dry wit as accurate as the lines he cast on Frenchman’s Pond, as if the very fact that we even have to debate the topic is so absurd that it requires some measure of humor to adequately address it. In doing so, he also identified the solution to solving environmental problems in his day and ours: deciding our priorities. After all, once we do that, “all it costs is money.” 

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