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

By Noga Morag-Levine | Go to book overview

CHAPTER ONE
Regulating Air Pollution: Risk- and
Technology-Based Paradigms

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 deadly pollution episodes made some dangers obvious, the hidden and latent effects of chronic exposure constituted a more serious and pervasive concern. By the 1960s, environmental movements across advanced industrial democracies were demanding more governmental protection against hazardous chemicals.1

The movement met with considerable success in both Europe and the United States, and an array of new or revamped regulatory mandates subjected industrial activity to regulatory standards determined by recently empowered administrative agencies. Yet despite trans-Atlantic similarities in environmental concerns and modes of public mobilization, the chemical regulation regime created in the United States diverged from its European counterparts both in its definition of the pertinent regulatory task and in the style of its implementation.2 From the start, the American regime stood apart in the ambitiousness of its scope and the absolute protection it sought to offer. “Clean air, clean water, open spaces” ought to be “the birthright for every American,” declared President Nixon in his 1970 State of the Union Address.3 Protecting these rights justified the extension of federal authority deep into regulatory domains previously ruled by state legislators and common law judges. Consistent with the rationale of protecting fundamental citizen rights, the numerous health and safety statutes enacted by Congress around that time promised virtually complete elimination of hazardous exposure to chemicals.4

The gap is particularly evident in clean air legislation. Of all the American federal health and safety statutes introduced during that era in rapid succession, none captures the new regime’s ambitious orientation better

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