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

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

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

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

Synopsis

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.

Excerpt

To most readers of this book, localized air pollution concentrations, or “hotspots,” are familiar only as momentary waves of caustic fumes encountered while driving past refineries, steel mills, chemical manufacturers, pulp mills, or other heavy industrial sites. But for the millions of Americans who live in close proximity to these pollution sources, such fumes are a constant intrusion and a persistent source of worry. “Noxious vapours” was the Victorian term for these gases and their multiple sensory assaults. Since the beginning of industrialization, some of those exposed to these vapors have attributed to them a long and consistent set of symptoms and concerns—nausea, vomiting, headaches, stinging throats, constricted chests, burning eyes, and a vague but persistent concern about long-term health effects. The seed of this book was such a worry.

Soon after moving into an Albany, California, apartment, my family noticed the intermittent presence of burnt plastic-like fumes that left an irritating, caustic sensation in the eyes and nose, and a bitter taste in the mouth. The fumes would come and go with the wind, and vary in their intensity. The parents of two young children, my husband and I soon became concerned that the air might be harmful, and we began to inquire as to the fumes’ source. After a number of false starts, we were referred to the regional air pollution agency, the Bay Area Air Quality Management District (BAAQMD) and contacted its complaint hotline. The agency registered our complaint under “odors” and sent an inspector, who informed us that the fumes came from a steel foundry located less than a mile away. The fumes were created by the rapid heating of synthetic resins during the metal-casting process, and—as we would later learn—included the emission of benzene, phenol, formaldehyde, and other hazardous air pollutants. We were told that for the Air District to take action, it must first establish that the odor amounted to a “public nuisance.” Under district rules, this required, as a first step, that complaints from five separate households be confirmed within a twenty-four hour period.

Encouraged by the prospect of pollution abatement, we began to call and register complaints. Although the agency responded diligently to each such complaint, we found that we often were unable to have our complaints confirmed. In the interval between our phone call and the arrival of the inspector, the odor often disappeared as a result of shifts in wind direction or in the foundry’s production processes. The inspector would arrive and sniff the air but neither she nor I could detect any trace of the . . .

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.