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

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

by Noga Morag-Levine
Chasing the Wind: Regulating Air Pollution in the Common Law State
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ISBN-10:
0691123810
ISBN-13:
9780691123813
Pub. Date:
10/30/2005
Publisher:
Princeton University Press
ISBN-10:
0691123810
ISBN-13:
9780691123813
Pub. Date:
10/30/2005
Publisher:
Princeton University Press
Chasing the Wind: Regulating Air Pollution in the Common Law State

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

by Noga Morag-Levine

Overview

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 Wind argues 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.

Product Details

ISBN-13: 9780691123813
Publisher: Princeton University Press
Publication date: 10/30/2005
Edition description: New Edition
Pages: 264
Sales rank: 814,524
Product dimensions: 5.75(w) x 9.00(h) x (d)

About the Author

Noga Morag-Levine is Associate Professor of Law at Michigan State University's College of Law.

Table of Contents

Preface ix
Acknowledgments xiii
List of Abbreviations xv
Introduction 1
CHAPTER ONE
Regulating Air Pollution: Risk-and Technology-Based Paradigms 9
A Rights Revolution? Risk and BAT in the Clean Air Act 13
The 1970 Clean Air Act: Regulatory Options 15
The 1970 Clean Air Act: Regulatory Implementation 17
Risk, Courts, and the EPA 22
Risk versus BAT: The Policy Debate 24
CHAPTER TWO
"Command and Control": Means, Ends, and
Democratic Regulation 27
Means, Ends, and Democratic Regulation 28
Means, Ends, and Lochner 30
Between Lochner and Industrial Union (the Benzene Case) 32
CHAPTER THREE
Regulating "Noxious Vapours": From Aldred's Case to the Alkali Act 39
Sic Utere: Absolute Liability as a Separation Regime 40
Controlling Noxious Vapors from Copper and Alkali Works in Nineteenth-Century Britain: Technological and Evidentiary Barriers 47
Absolute Liability and "Trifling Inconvenience": The Road to the St. Helen's Regime 52
The Alkali Act Regime 56
CHAPTER FOUR
On the "Police State" and the "Common LawState" 63
"Lochner Revisionism" and American Exceptionalism 64
The "Police State" and the "Common Law State" 67
Nuisance Law and Public Health Administration 71
Between Nuisance and Substantive Due Process 74
Administration, Delegation, and the Rule of Law 79
On the "Absolutism of a Democratic Majority" 82
CHAPTER FIVE
From Richards's Appeal to Boomer: Judicial Responses to Air Pollution, 1869-1970 86
Richards's Appeal (1868): Injunction or Damages? 88
Huckenstine's Appeal (1872): Neither Injunction nor Damages 91
Pennsylvania Lead Company (1881) and Evans v. Reading Chemical Fertilizing Co.(1894): Injunctive Relief and Out-of-Place Industrial Facilities 92
Versailles Borough (1935) and Waschak v. Moffat (1954): "One Who Voluntarily Goes to War ..." 94
Sullivan v. Jones & Laughlin Steel Co.(1904): BAT Injunctions 98
CHAPTER SIX
"Inspected Smoke": The Perpetual Mobilization Regime 103
English Antismoke Efforts Prior to 1880 105
Smoke in America: 1881-1948 109
Smoke Abatement and the Police Power 112
Perpetual Mobilization and Nuisance Per Se 115
Beyond Smoke 122
CHAPTER SEVEN
"Odors," Nuisance, and the Clean Air Act 124
An Emergent Air-Pollution Regime: 1947-55 124
The Problem of "Odors" 128
Odors and Nuisance Law 130
"Odors" and the Road to the CAA 133
Odors and the EPA: 1970-92 135
CHAPTER EIGHT
Regulating "Odors": The Case of Foundries 143
Foundries: Process, Pollution, and Control Technology 144
New Haven, Michigan 148
Berkeley, California 153
Tempe, Arizona 161
Skokie, Illinois 166
Evidentiary Burdens and Perpetual Mobilization 173
CHAPTER NINE
Conclusion 179
Notes 189
Cases Cited 233
Selected Bibilography 235
Index 249

What People are Saying About This

Lisa Heinzerling

No other book so thoroughly weaves together themes in common-law nuisance, federal pollution legislation, local pollution control, and even constitutional law. Morag-Levine manages to tell a story about how all of these various strands fit together that is at once persuasive and interesting, not to mention carefully documented and painstakingly argued. I learned a great deal reading this book, and I will think differently about the field of air pollution control as a consequence.
— Lisa Heinzerling, Georgetown University

Cary Coglianese

An exceptionally thoughtful study of air pollution regulation, Chasing the Wind provides a magisterial account of the tensions embedded within American environmental law and their historical roots. Noga Morag Levine shows us that the present state of environmental regulation is much more a creature of the distant, common law past than has generally been acknowledged. This is both a surprising and important argument.
— Cary Coglianese, Harvard University

From the Publisher

"No other book so thoroughly weaves together themes in common-law nuisance, federal pollution legislation, local pollution control, and even constitutional law. Morag-Levine manages to tell a story about how all of these various strands fit together that is at once persuasive and interesting, not to mention carefully documented and painstakingly argued. I learned a great deal reading this book, and I will think differently about the field of air pollution control as a consequence."—Lisa Heinzerling, Georgetown University

"An exceptionally thoughtful study of air pollution regulation, Chasing the Wind provides a magisterial account of the tensions embedded within American environmental law and their historical roots. Noga Morag Levine shows us that the present state of environmental regulation is much more a creature of the distant, common law past than has generally been acknowledged. This is both a surprising and important argument."—Cary Coglianese, Harvard University

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