Vol. 14 No. 1 (January 2004)

CHASING THE WIND: REGULATING AIR POLLUTION IN THE COMMON LAW STATE by Noga Morag-Levine. Princeton: Princeton University Press, 2003. 259 pp. Cloth $35.00. ISBN: 0-691-09481-0.

Reviewed by Robert V. Percival, School of Law, University of Maryland. Email: Rpercival@law.umaryland.edu.

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. Morag-Levine, a political science professor at the University of Michigan, argues that U.S. air pollution control efforts have been hampered by the continued influence of common law principles despite the enactment of the Clean Air Act, which was designed to overcome the common law's inadequacies. She explores why common law notions have proven so durable in the U.S. legal system even after the enactment of comprehensive federal regulatory statutes. Comparing U.S. experience with that of Europe, Morag-Levine argues in favor of a more precautionary approach to regulation akin to that employed in civil law countries that place greater emphasis on technology-based regulation.

CHASING THE WIND combines a remarkable blend of legal history, comparative law, and political theory that is presented with unfailing clarity and balance. Among the many virtues of this book are its meticulous discussion of the historical development of the common law, its comparative analysis of pollution control regulation in common law and civil law countries, and its discussion of why some U.S. communities continue to face air pollution problems more than 30 years after enactment of the Clean Air Act.

CHASING THE WIND provides a fascinating account of the history of air pollution control efforts, beginning with British courts' early development of the common law, the legal tradition adopted in nearly all the United States after the American Revolution. In 1611 a British court established the important principle that even non-trespassory invasions of private property - e.g., odors from a neighbor's pig sty - could be actionable as private nuisances. Applying the ancient Latin maxim, sic utere tuo, ut alienum non laedas - everyone must use their own property so as not to harm another - British courts held polluters liable to plaintiffs who could prove that air pollution had caused significant harm to their property. For centuries prior to the enactment of modern environmental legislation, this body of common (or judge-made) law was the first line of defense against most pollution problems.

The common law requires plaintiffs to prove that particular sources of pollution have caused them significant harm, a task that is rarely easy except when pollution from a single, particularly noxious source causes visible damage. Common law courts initially performed a kind of zoning function by encouraging such sources, including copper smelters and alkali works, to locate away from residential areas. However, particularized proof of causal injury became more difficult as the number of sources and pollutants multiplied with the growth of industrial activity. Even if plaintiffs could overcome the daunting hurdle of proving causal injury, courts often refused to require abatement of the pollution if the source shown to cause harm was of considerable economic value. Environmental legislation ultimately was adopted because the common law by itself proved inadequate to control burgeoning pollution problems.

Many U.S. cities adopted smoke control ordinances in the nineteenth century, but it was not until 1970 that a national regulatory program to control air pollution was adopted in the United States. By contrast, Britain adopted national regulatory legislation to control air pollution - the Alkali Act - in 1863. The Alkali Act reduced air pollution by requiring sources of particularly noxious emissions to use new pollution control technology. European countries with a civil law tradition favor technology-based regulation, which Norag-Levine maintains is a product of their greater receptivity to the precautionary principle - a "better safe than sorry" approach that seeks to prevent harm before it occurs. By contrast "the American regulatory paradigm aspires to scientific determination of the level of pollution mitigation required" (p.180). The U.S. Clean Air Act mandates that uniform, health-based air quality standards be established throughout the nation based on assessment of the likely risks of air pollution.

CHASING THE WIND examines the unfulfilled promise of the U.S. Clean Air Act, devoting particular attention to EPA's failure to regulate emissions that cause annoying odors. It focuses on lengthy battles to stop such emissions by residents of four communities (including Berkeley, California, where as a graduate student Morag-Levine experienced such pollution first hand). The book reports that even the most determined efforts of concerned citizens often produced little more than "inspected pollution" despite repeated complaints to regulatory authorities.

While the U.S. Clean Air Act is widely believed to represent a radical departure from the common law regime, Morag-Levine argues that its seemingly absolutist mandates to protect public health and its citizen suit provisions paradoxically reflect the influence of the Act's common law roots. She views the citizen suit provisions as a product of the common law's distrust of administrative decisionmaking and the desire of Congress to use judicial oversight as a check on its abuse. Morag-Levine complains that courts reviewing regulatory decisions in the "common law state" have continued to second-guess legislative judgments concerning regulatory goals and the means for achieving them as the U.S. Supreme Court did in its notorious LOCHNER decision striking down maximum hours legislation in 1905.

Morag-Levine's argument that the continuing influence of common law notions has hampered the implementation of regulatory legislation is important and highly perceptive. Even though environmental laws were adopted to overcome limitations of the common law, the common law's notion that government should intervene only when specific harm to individuals is proven continues to be surprisingly influential in judicial review of environmental regulations. Morag-Levine notes that it also has been influential in the U.S. Supreme Court's revival of constitutional doctrines requiring the government to compensate private property owners for "regulatory takings." But the phenomenon has an even broader sweep. It also has shaped the Court's efforts to restrict the ability of private parties to enforce the environmental laws by manipulating constitutional doctrines of standing to require increasingly detailed showings of injury before citizen suits may be pursued. It has inspired federal appeals courts to invalidate some important environmental initiatives, including EPA's regulations to phase out remaining uses of asbestos, which were struck down by a court that insisted on impossibly detailed analyses never contemplated by Congress when it authorized preventive regulation.

CHASING THE WIND provides an excellent critique of the inadequacies of the common law and the surprising vitality of common law notions, despite the rise of the regulatory state. However, Morag-Levine ventures on shakier ground when she suggests that technology-based regulation is the best means for escaping the grip of common law ideals. Even if "the clearest indicator of the divergence between [civil law and common law] approaches [is] the difference in the prevalence of technology standards in the alternative regimes" (pp.179-80), it does not follow that the technology-based approach is a better strategy for controlling air pollution in the United States. While the Clean Air Act has failed to provide redress for some problems, like the odorous emissions on which the book focuses, it has been widely understood by courts as representing a sharp departure from the common law and it is responsible for dramatic reductions in air pollution. Morag-Levine's historical narrative does not discuss the ETHYL CORPORATION decision, where a federal appeals court in 1976 upheld EPA's first regulations limiting the amount of lead in gasoline. This decision stands as a landmark judicial endorsement of precautionary regulation. By concluding that EPA could limit the lead content of gasoline in the absence of the proof of causal injury required by the common law, this decision helped free air pollution regulation from the common law's grasp. It also played an important role in EPA's ultimate decision to ban leaded gasoline, which is responsible for the dramatic reduction in lead pollution noted in this book.

Morag-Levine notes that in a case involving regulation of worker exposure to benzene, the Supreme Court required the Occupational Health and Safety Administration (OSHA) to assess risks and determine that they are significant enough to warrant regulation. While this supports her thesis about the influence of common law notions, it also indicates that technology-based regulations like those used by OSHA to regulate benzene are no more immune to such influence than risk-based standards. The Court's decision delayed for a decade vital worker protections, but it has not proven to be a death knell for occupational health and safety standards, particularly since the Court quickly clarified that OSHA could adopt technology-based standards without performing cost-benefit analysis.

In her spirited defense of technology-based standards, Morag-Levine properly debunks the "command and control" label that spin-doctoring opponents of regulation have applied to it. However, her book unwittingly may lead the reader to believe that the continuing influence of the common law has prevented successful use of technology-based regulation in the United States. In fact, Congress has incorporated technology-based mandates in nearly every federal pollution control law, and they have spawned substantial reductions in pollution. The Oil Pollution Act's double-hull requirement has been a dramatic success both domestically and internationally. The Clean Water Act employs technology-based standards as the primary tool for controlling water pollution, and they have produced massive reductions in such pollutants. While water pollution understandably is beyond the scope of this book, the Clean Water Act's experience with technology-based standards demonstrates that American suspicion of civil law style interventions has not prevented extensive use of technology-based approaches. As Morag-Levine acknowledges, the Clean Air Act itself applies technology-based standards to new or modified sources. Moreover, the Act was amended in 1990 to transform a risk-based program to control hazardous air pollutants into a technology-based program requiring sources to use maximum achievable control technology. These developments suggest that Congress believes that technology-based regulation has an important role to play in U.S. pollution control policy.

Morag-Levine's larger concern seems to be that judicial review has made it difficult to implement federal regulatory programs to protect the environment. Comparing U.S. and European experience in air pollution control, Morag-Levine argues that technology-based regulation is less subject to judicial obstruction because it narrows the grounds on which industries can challenge regulations. While technology-based regulation may reduce the salience of arguments concerning the levels and significance of harm emissions cause, it provides new opportunities for regulated industries to challenge regulations on other grounds, such as their feasibility. Experience with technology-based regulation, particularly under the Clean Water Act, demonstrates that regulated industries are no less prone to challenge such regulations in court as they are risk-based standards. As a practical matter, whenever prospective regulation costs real money, regulatory targets will have ample incentive to wage war against it and battles lost in the agencies inevitably will reach the courts. Morag-Levine is appropriately skeptical of calls for restricting judicial review or the openness of the American regulatory processes. Even if these traditions ultimately do more to benefit regulatory targets than the general public, they appear to be a necessary price to pay to preserve the public's primary tool for holding agencies accountable.

The continuing legacy of the common law's quest for proof of causal harm may obstruct implementation of both technology-based and risk-based standards, but there are hopeful signs that the courts are beginning to appreciate why regulatory legislation is, and should be different. Recently the Supreme Court unanimously rejected an industry plea to rewrite the Clean Air Act to require that regulations be based on cost-benefit analysis. The Court also has recognized the folly of requiring citizens to make more detailed demonstrations of injury to establish their standing to sue than would be required to prove the merits of their enforcement actions. Just as the common law has evolved over time, judicial review of environmental regulations may be maturing to the point where it ultimately will escape the grasp of the very common law principles it was enacted to overcome.

Morag-Levine maintains that risk-based standards make it more difficult to address localized pollution problems to the detriment of minorities and the poor who are disproportionately exposed to risk. But as the quality of risk information improves, it actually may be easier for those trapped in localized islands of risk to seek redress under risk-based regulatory regimes. Legislators are adopting new approaches to regulation, such as the Emergency Planning and Community Right-to-Know Act, which now requires companies to provide the public with information annually on emissions of hundreds of toxic chemicals. This information has empowered citizen groups to pressure sources of air pollution to reduce their emissions voluntarily, an approach that has not yet been emphasized in Europe. The use of a rich mix of regulatory approaches is likely to do a better job of protecting human health and the environment than reliance on any one single strategy.

CHASING THE WIND brilliantly dissects the roots of current tensions between common law and precautionary approaches to regulation in contemporary U.S. air pollution control policy. Even if one is not entirely persuaded by her thesis, Morag-Levine does an exceptional job of tracing the historical roots of current tensions in air pollution control policy. This represents a major work of scholarship that should be essential reading for anyone seeking to understand this complex field.

CASE REFERENCES:

ETHYL CORPORATION v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (en banc).

LOCHNER v. NEW YORK, 198 US 45 (1905).

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Copyright 2004 by the author, Robert V. Percival.