Dow Chemical Co. v. United States Ex Rel. Administrator

Background

Dow Chemical operates a 2,000-acre chemical plant in Midland, Michigan with many buildings and open-air equipment between them. Dow kept strong fences, guards, and other ground-level security and refused EPA a second on-site inspection. Rather than seek a warrant, EPA hired a commercial aerial photographer to shoot the plant from 12,000, 3,000, and 1,200 feet in navigable airspace. Dow sued, and lower courts were split before the Supreme Court reviewed the case.

Reasoning

The Court examined two questions: whether the Clean Air Act allowed aerial inspection, and whether taking such photographs without a warrant was a search. The Justices held that aerial observation and photography from public airspace fall within EPA’s inspection authority, and that outdoor areas of a large industrial complex are not like the private curtilage around a home. Because the pictures were taken from lawful airspace with a conventional mapping camera and did not penetrate buildings, the Court concluded the aerial photos were not a Fourth Amendment search.

Real world impact

The ruling lets EPA and similar agencies use routine aerial photography as a tool when monitoring large industrial sites without first getting a warrant. It leaves intact protection for building interiors and for overly intrusive technology (for example, devices that would penetrate walls or record private conversations). Trade secret and other laws still forbid disclosure or competitive misuse of confidential information discovered by such photos.

Dissents or concurrances

Justice Powell, joined by three colleagues, disagreed in part, arguing that Dow had reasonable privacy expectations and that the agency should have sought a warrant because the suit captured detailed proprietary information.