Chasing the Wind

Chasing the Wind: Regulating Air Pollution in the Common Law State

Noga Morag-Levine
Copyright Date: 2003
Pages: 264
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  • Book Info
    Chasing the Wind
    Book Description:

    The Federal Clean Air Act of 1970 is widely seen as a revolutionary legal response to the failures of the earlier common law regime, which had governed air pollution in the United States for more than a century. Noga Morag-Levine challenges this view, highlighting striking continuities between the assumptions governing current air pollution regulation in the United States and the principles that had guided the earlier nuisance regime. Most importantly, this continuity is evident in the centrality of risk-based standards within contemporary American air pollution regulatory policy. Under the European approach, by contrast, the feasibility-based technology standard is the regulatory instrument of choice.

    Through historical analysis of the evolution of Anglo-American air pollution law and contemporary case studies of localized pollution disputes,Chasing the Windargues for an overhaul in U.S. air pollution policy. This reform, following the European model, would forgo the unrealizable promise of complete, perfectly tailored protection--a hallmark of both nuisance law and the Clean Air Act--in favor of incremental, across-the-board pollution reductions. The author argues that prevailing critiques of technology standards as inefficient and undemocratic instruments of "command and control" fit with a longstanding pattern of American suspicion of civil law modeled interventions. This distrust, she concludes, has impeded the development of environmental regulation that would be less adversarial in process and more equitable in outcome.

    eISBN: 978-1-4008-2585-1
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. Acknowledgments
    (pp. xiii-xiv)
  5. List of Abbreviations
    (pp. xv-xvii)
  6. Introduction
    (pp. 1-8)

    The Clean Air Act of 1970 (CAA) is broadly understood as a pivotal moment in the history of U.S. environmental policy, entailing a radical shift away from an earlier common law regime that was operated piecemeal by local and state governments. The CAA superceded these decentralized approaches with federal, uniform, and proactive law. But most importantly, it is thought to embody a shift in priorities away from an earlier deference to industrial concerns toward a new and uncompromising commitment to the protection of public health.

    The act’s absolutist reputation rests primarily on the ambitiousness of the promise it encodes in...

  7. CHAPTER ONE Regulating Air Pollution: Risk- and Technology-Based Paradigms
    (pp. 9-26)

    A plethora of regulatory programs currently targets synthetic chemicals in our air, drinking water, food products, and workplaces. Although people had worried about the dangers posed by chemicals to health for centuries, a post–World War II surge in the industrial uses of man-made substances sparked new levels of environmental activism in Western Europe and the United States during the 1960s and 1970s. The immediately visible and undeniable advantages of the chemicals to industrial processes, sanitation, and agriculture lost some of their luster as evidence about the risks posed to health and ecosystems mounted. Although a handful of acute and...

  8. CHAPTER TWO “Command and Control”: Means, Ends, and Democratic Regulation
    (pp. 27-38)

    Encoded into the term “command and control,” widely used as a synonym for technology standards, is a fundamental challenge to the legitimacy of this regulatory approach.¹ The military and Cold War connotations of the phrase lend it considerable resonance in American political discourse, and its increasingly familiar presence in our regulatory vocabulary has allowed its shorthand critique of technology standards as vaguely authoritarian, and hence undemocratic, to masquerade as a neutral, almost technical, term. This chapter probes the charge that technology-based regulatory standards are democratically deficient. The basis for this critique is not immediately apparent, as it does not stem...

  9. CHAPTER THREE Regulating “Noxious Vapours”: From Aldred’s Case to the Alkali Act
    (pp. 39-62)

    “Noxious vapours” was the Victorian era’s term for the combination of fumes, gases and smells that surrounded a range of economic activities. Facilities in which animals were raised or animal products processed (such as slaughterhouses and tanneries) had long been a source of such pollution. But over the course of the nineteenth century, smells and gases from metal smelting and chemical manufacturing became the primary vapors of concern. Especially notable among the air-polluting industries of the era were the copper smelters and alkali works of Great Britain. Two classes of harm provoked concern regarding their emissions: injury to land as...

  10. CHAPTER FOUR On the “Police State” and the “Common Law State”
    (pp. 63-85)

    The 1863 House of Lords arbitration of the St. Helen’s copper smoke dispute had a U.S. parallel four decades later, when the State of Georgia brought suit before the Supreme Court against air pollution from two Tennessee smelters.¹ In a 1907 opinion written by Justice Holmes, the court unanimously issued an injunction requiring abatement of the smelters’ smoke.² In a short concurring opinion, Justice Harlan offered the following rationale: “Georgia is entitled to the relief sought, not because it is a State, but because it is a party which has established its right to such relief by proof.”³ In this,...

  11. CHAPTER FIVE From Richards’s Appeal to Boomer: Judicial Responses to Air Pollution, 1869–1970
    (pp. 86-102)

    Under England’s bifurcated regulatory regime, it fell to a statutory component—the Alkali Act—to provide incentives for the implementation of available pollution controls for noxious vapors. Meanwhile a judicial component (nuisance law under theSt. Helen’sdoctrine) adhered to an absolute liability rule that left some room for compensation for visible injury to property (most often damage to vegetation) but denied relief for “discomforts” stemming from fumes. In the absence of a similar statutory framework in the United States, it was left to common law judges to negotiate between the competing solutions for addressing air pollution disputes: land use...

  12. CHAPTER SIX “Inspected Smoke”: The Perpetual Mobilization Regime
    (pp. 103-123)

    Throughout the nineteenth and well into the twentieth century, the term “smoke,” in U.S. and British colloquial usage, referred to the mix of visible and invisible constituents currently known as air pollution. The technical and legal meaning of the term, however, was applied more narrowly to the visible particulate emissions created when coal, burning under conditions of incomplete combustion, released volatile matter in the form of sooty particles made up of unburned carbon, tar, ash, and other compounds.¹ In England, control of smoke and gases (noxious vapors) was split between two separate regimes until the passage of the 1956 Clean...

  13. CHAPTER SEVEN “Odors,” Nuisance, and the Clean Air Act
    (pp. 124-142)

    “Odors” is the regulatory classification to which municipal and state agencies have assigned localized air-pollution concentrations since the early 1950s, when these bodies’ jurisdiction was extended beyond smoke to the broader category, “air pollution.” This chapter follows the history of this regime during the two decades prior to and subsequent to passage of the 1970 Clean Air Act (CAA), focusing on how and why localized pollution came to be defined as “odors” and on the regulatory consequences that followed from this problem definition. Most importantly, as the chapter highlights, the term “odors” imparted an aesthetic and subjective meaning to the...

  14. CHAPTER EIGHT Regulating “Odors”: The Case of Foundries
    (pp. 143-178)

    The EPA decision not to regulate odors had far-reaching consequences for the experiences of firms, their surrounding communities, and state regulatory agencies. This chapter explores these implications through an examination of four disputes surrounding iron and steel foundries and their pollution-affected communities.

    Foundries melt and shape metal into parts used in 90 percent of manufactured products, from airplanes to zippers.¹ The industry provides widespread economic benefits,² but has long been associated with severe pollution problems. Historically, the primary source of air pollution from foundries was the melting process and its associated particulate emissions (fly ash, soot, metallic dust, and other...

  15. CHAPTER NINE Conclusion
    (pp. 179-188)

    The benefits of industrialization, from its inception, have been accompanied by the problem of troublesome air emissions. Though names for the phenomenon have changed over the centuries—“noxious vapors,” “smoke,” “fumes,” “odors,” or “air pollution”—the dilemma posed by the conjoined benefits and harms of industrialization has remained. Almost as old as the emission problem itself are two alternative families of public response: one reactive, and one proactive. Neither approach avoids imposing and distributing sacrifice on people affected by pollution, since neither regulatory method has been able to eliminate all of pollution’s harms while allowing industrial production to continue. Yet...

  16. Notes
    (pp. 189-231)
  17. Cases Cited
    (pp. 232-234)
  18. Selected Bibliography
    (pp. 235-248)
  19. Index
    (pp. 249-259)