1. 42 USC 7409 (b) (1994). See discussion in Cass R. Sunstein, Risk and Reason: Safety, Law, and the Environment (Cambridge: Cambridge University Press, 2002), 230–34.
2. As chapter 1 will show, both the federal Clean Air Act and the German air pollution regime rely primarily on performance rather than on prescriptive technology standards.
3. Michael Faure and Marieke Ruegg, “Environmental Standard Setting through General Principles of Environmental Law,” in Environmental Standards in the European Union in an Interdisciplinary Framework, ed. Michael Faure, John Vervaele, and Albert Weale (Antwerpen: Maklu, 1994). See also Organisation for Economic Co-Operation and Development, “Hazardous Air Pollutants,” paper presented at the London Workshop, 1995.
4. See Bruce Albert Ackerman and Richard B. Stewart, “Reforming Environmental Law,” Stanford Law Review 37 (1985): 1333, 1334; Allen V. Kneese and Charles L. Schultze, Pollution, Prices, and Public Policy (Washington, D.C.: Brookings Institution, 1975), 69–84; A. Myrick Freeman III, “Air and Water Pollution Policy,” in Current Issues in U.S. Environmental Policy, ed. Paul R. Portney (Baltimore: Johns Hopkins University Press, 1978), 49–58; Stephen G. Breyer, Regulation and Its Reform (Cambridge: Harvard University Press, 1982), 271– 84; Richard B. Stewart, “Controlling Environmental Risks Through Economic Incentives,” Colum. J. of Envtl. L. 13 (1988:153); Cass R. Sunstein, “Administrative Substance,” Duke L. J. 1991 (1991): 607, 627–42.
5. See Richard B. Stewart, “Madison’s Nightmare,” U. Chi. L. Rev. 57 (1990): 335, 340; Richard H. Pildes and Cass R. Sunstein, “Reinventing the Regulatory State,” U. Chi. L. Rev. 62 (1995):1.
6. In its originally military context “command and control” denotes hierarchical exercise of authority “over assigned forces in the exercise of a mission” (Dictionary of Military Terms [New York: H.W. Wilson, 1986], 54).
7. A prime example of the reliance of contemporary takings jurisprudence on nuisance law is found in Justice Scalia’s opinion in Lucas v. South Carolina Coastal Council, where he wrote in reference to the state’s authority to prohibit construction on beachfront property without having to pay compensation under the Fifth Amendment’s takings clause: “To win its case, South Carolina, … as it would be required to do if it sought to restrain Lucas in a common-law action for public nuisance, must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing” (Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2901).