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

By Noga Morag-Levine | Go to book overview

CHAPTER NINE
Conclusion

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 the differing approaches have had far-reaching implications for both the level of sacrifice that pollution imposes and the distribution of the pollution burden.

The reactive approach, focusing on the ultimate end of protection from pollution’s harms, promises a total remedy, if not through elimination, then through full monetary compensation. The proactive approach, focusing on the means of abatement, offers pollution reduction through substituting materials (such as clean coal) or the imposition of end-ofpipe controls (such as “smoke consumption devices”). But it promises nothing greater than incremental relief based on the feasibility of mitigation. The core logics of the two regimes diverge, as do the institutional processes used to implement them. Whereas the reactive regime ultimately relies on courts to determine the legitimate extent of intervention, the proactive approach places considerably more discretion in the hands of administrators. Though the regimes are conceptually distinct, hybrid interventions have developed, as when courts have taken on administrative tasks through BAT injunctions.

This book has traced the historical roots of these regimes to their national systems’ respective conceptions of the scope of regulatory authority under the police power. The civil law foundation, associated with states of the European continent, supports the proactive pollution regime; and English common law—later transplanted to North America—forms the core logic of its reactive counterpart. This historical difference has continued to shape air pollution regulation in Europe and the United States, with the clearest indicator of the divergence between the two approaches being the difference in the prevalence of technology standards in the alter-

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