Crediting the court with spurring harbor cleanup

Mastering Boston Harbor: Courts, Dolphins, & Imperiled Waters, By Charles M. Haar, Harvard University, 380 pp., illustrated, $35

When a young humpback whale appeared in Boston Harbor earlier this spring, it delighted observers with a whale-watch show worthy of Stellwagen Bank, all within sight of the downtown skyscrapers. And its appearance was the latest -- and certainly the splashiest -- evidence of the harbor's rebirth.

While it is not unusual to find humpbacks just offshore in the late fall and early spring, it took a cold spring and a good run of herring to lure one into the Inner Harbor. But as Bruce Berman of Save the Harbor/Save the Bay put it, ''It would not have been a pleasant place for him 18 years ago."

That would have been 1987, the year before work began on the harbor-cleaning treatment plant on Deer Island -- and the year before the campaigning George H.W. Bush mocked the ''Massachusetts Miracle" boast of his rival, Michael Dukakis, with a punch line that ''the last miracle in Massachusetts was when they found a fish alive in Boston Harbor."

And 1987 would also be fully three years after the events that Charles M. Haar describes in ''Mastering Boston Harbor," events in which he played a key role as the court-appointed special master in the case that led to creation of the Massachusetts Water Resources Authority, and thus to the rebirth of the harbor itself.

As Haar, a professor emeritus at Harvard Law School, recounts the harbor cleanup story, it becomes a personal testimonial for judicial activism.

In Haar's admiring account of Superior Court Judge Paul Garrity's actions, he argues that ''excessive caution in the exercise of judicial power can be just as damaging as an excess of zeal. . . . Power not deployed is power soon lost."

Garrity instituted ''a continuing process of negotiation and mediation overseen by the special master." The process was ''helped along by persistent reminders" -- and public ones -- to the Legislature and the Dukakis administration that the alternatives were going to trial or imposing sanctions.

In late 1984, as legislation creating the MWRA stalled in the Legislature, Garrity did impose a ban on any new tie-ins to the Metropolitan District Commission's sewer system, ordered a halt on any new sewer projects, and prepared to go to trial.

It worked, and as Haar writes, ''the successful outcome of this case reveals how . . . judicial law-making can become an indispensable part of the general process of solving social problems," as well as ''[refuting] any charge that judges lack the capacity to formulate and implement complex remedies."

Garrity left the case, and the bench itself, in January 1985, barely three weeks after Dukakis signed the MWRA legislation, and Haar's account basically ends there. The equally fascinating story of how the harbor was cleaned up, overcoming community resistance and engineering obstacles, received a fine account in Eric Jay Dolin's ''Political Waters," published last year.

Dolin also addressed the ''how clean is enough" issue, which even today remains a question, as he put it, ''phenomenally difficult to answer." The humpback's foray into the Inner Harbor perhaps provides the answer.