Chasing the Wind: Regulating Air Pollution in the Common Law State [NOOK Book]

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 ...

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

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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.

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Editorial Reviews

Law and Social Inquiry
[Noga Morag-Levine] presents one of the first book-length studies of legislative failure that ascribes such a failure to conceptual, rather than political, causes. . . . Chasing the Wind is an important study of the Clean Air Act, with a great deal of information about the origins of the Act, its performance, and alternative approaches that might lead to greater success.
Law and Politics Book Review - Robert V. Percival
In this impressive review of the history of air pollution control law, Noga Morag-Levine traces the roots of current tensions between common law and precautionary approaches to regulation.... Chasing the Wind combines a remarkable blend of legal history, comparative law, and political theory that is presented with unfailing clarity and balance. . . . [A] major work of scholarship that should be essential reading for anyone seeking to understand this complex field.
Journal of Energy Literature - Christopher Hansen
The author carefully uses several centuries of legal cases and a sharp sense of comparison between U.S. and European regulatory and control regimes to provide the reader with a broad canvas of air pollution control history and to expose the weaknesses of different approaches. . . . This book is recommended for anyone concerned with regulatory policy and will help to give a broader and more historical perspective to today's decision makers.
International Journal of Environmental Studies - Mervyn Richardson
This work is highly recommended for all interested in the vital problems associated with Air Pollution, both in the USA and globally; it is reader friendly and is suitable reading material for both students and officials in government industry. . . . [I]t is very realistically priced, especially for hard cover.
Journal of Environmental Law - Mark Wilde
In her scholarly and fascinating book, Morag-Levine mounts a strong challenge against the orthodox view that [the Clean Air Act 1970] marked a great advance in the history of pollution abatement and asserts that the Act has failed to fulfill these initial promises. . . . The great strength of this book is its reliance upon historical and political sources in addition to legal ones; this provides insights and nuggets of historical detail which could not be gained through a strictly legal analysis of the materials. . . . [T]here can be no clearer exposition of the manner in which domestic legal traditions combined with social, economic, political and historic factors serve to mould regulatory responses to pollution.
" Law and Social Inquiry ard Rubin

[Noga Morag-Levine] presents one of the first book-length studies of legislative failure that ascribes such a failure to conceptual, rather than political, causes. . . . Chasing the Wind is an important study of the Clean Air Act, with a great deal of information about the origins of the Act, its performance, and alternative approaches that might lead to greater success.
From the Publisher

"In this impressive review of the history of air pollution control law, Noga Morag-Levine traces the roots of current tensions between common law and precautionary approaches to regulation.... Chasing the Wind combines a remarkable blend of legal history, comparative law, and political theory that is presented with unfailing clarity and balance. . . . [A] major work of scholarship that should be essential reading for anyone seeking to understand this complex field."--Robert V. Percival, Law and Politics Book Review

"The author carefully uses several centuries of legal cases and a sharp sense of comparison between U.S. and European regulatory and control regimes to provide the reader with a broad canvas of air pollution control history and to expose the weaknesses of different approaches. . . . This book is recommended for anyone concerned with regulatory policy and will help to give a broader and more historical perspective to today's decision makers."--Christopher Hansen, Journal of Energy Literature

"This work is highly recommended for all interested in the vital problems associated with Air Pollution, both in the USA and globally; it is reader friendly and is suitable reading material for both students and officials in government industry. . . . [I]t is very realistically priced, especially for hard cover."--Mervyn Richardson, International Journal of Environmental Studies

"In her scholarly and fascinating book, Morag-Levine mounts a strong challenge against the orthodox view that [the Clean Air Act 1970] marked a great advance in the history of pollution abatement and asserts that the Act has failed to fulfill these initial promises. . . . The great strength of this book is its reliance upon historical and political sources in addition to legal ones; this provides insights and nuggets of historical detail which could not be gained through a strictly legal analysis of the materials. . . . [T]here can be no clearer exposition of the manner in which domestic legal traditions combined with social, economic, political and historic factors serve to mould regulatory responses to pollution."--Mark Wilde, Journal of Environmental Law

"[Noga Morag-Levine] presents one of the first book-length studies of legislative failure that ascribes such a failure to conceptual, rather than political, causes. . . . Chasing the Wind is an important study of the Clean Air Act, with a great deal of information about the origins of the Act, its performance, and alternative approaches that might lead to greater success."--Edward Rubin, Law and Social Inquiry

Law and Politics Book Review
In this impressive review of the history of air pollution control law, Noga Morag-Levine traces the roots of current tensions between common law and precautionary approaches to regulation.... Chasing the Wind combines a remarkable blend of legal history, comparative law, and political theory that is presented with unfailing clarity and balance. . . . [A] major work of scholarship that should be essential reading for anyone seeking to understand this complex field.
— Robert V. Percival
Journal of Energy Literature
The author carefully uses several centuries of legal cases and a sharp sense of comparison between U.S. and European regulatory and control regimes to provide the reader with a broad canvas of air pollution control history and to expose the weaknesses of different approaches. . . . This book is recommended for anyone concerned with regulatory policy and will help to give a broader and more historical perspective to today's decision makers.
— Christopher Hansen
International Journal of Environmental Studies
This work is highly recommended for all interested in the vital problems associated with Air Pollution, both in the USA and globally; it is reader friendly and is suitable reading material for both students and officials in government industry. . . . [I]t is very realistically priced, especially for hard cover.
— Mervyn Richardson
Journal of Environmental Law
In her scholarly and fascinating book, Morag-Levine mounts a strong challenge against the orthodox view that [the Clean Air Act 1970] marked a great advance in the history of pollution abatement and asserts that the Act has failed to fulfill these initial promises. . . . The great strength of this book is its reliance upon historical and political sources in addition to legal ones; this provides insights and nuggets of historical detail which could not be gained through a strictly legal analysis of the materials. . . . [T]here can be no clearer exposition of the manner in which domestic legal traditions combined with social, economic, political and historic factors serve to mould regulatory responses to pollution.
— Mark Wilde
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Product Details

  • ISBN-13: 9781400825851
  • Publisher: Princeton University Press
  • Publication date: 1/10/2009
  • Sold by: Barnes & Noble
  • Format: eBook
  • Edition description: Course Book
  • Pages: 264
  • File size: 3 MB

Meet the Author

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

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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
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