Air Pollution

• Author: Jeffrey Lehman, Shirelle Phelps

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Air pollution has plagued communities since the industrial revolution and even before. Airborne pollutants, such as gases, chemicals, smoke particles, and other substances, reduce the value of and ability to enjoy affected property and cause significant health and environmental problems. Despite the long history and significant consequences of this problem, effective legal remedies only began to appear in the late nineteenth and early twentieth centuries. Though some U.S. cities adopted air quality laws as early as 1815, air POLLUTION at that time was seen as a problem best handled by local laws and ordinances. Only as cities continued to grow, and pollution and health concerns with them, did federal standards and a nationwide approach to air quality begin to emerge.

The earliest cases involving air pollution were likely to be brought because of a noxious smell, such as from a slaughterhouse, animal herd, or factory, that interfered with neighboring landowners' ability to enjoy their property. These disputes were handled through the application of the NUISANCE doctrine, which provides that possessors of land have a duty to make a reasonable use of their property in a manner that does not harm other individuals in the area. A person who polluted the air and caused harm to others was liable for breaching this duty and was required to pay damages or was enjoined (stopped through an INJUNCTION issued by a court) from engaging in the activities that created the pollution. In determining whether to enjoin an alleged polluter, courts balanced the damage to the plaintiff landowner's property against the hardship the defendant polluter would incur in trying to eliminate, or abate, the pollution. Courts often denied injunctions because the economic damage suffered by the defendant?and, by extension, the surrounding community if the defendant was essential to the local economy?in trying to eliminate the pollution often outweighed the damage suffered by the plaintiff. Thus, in many cases, the plaintiff was left only with the remedy of money damages?a cash payment equal to the estimated monetary value of the damage caused by the

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pollution?and the polluting activities were allowed to continue.

Using a nuisance action to control widespread air pollution proved inadequate in other ways as well. At COMMON LAW, only the attorney general or local prosecutor could sue to abate a public nuisance (one that damages a large number of persons) unless a private individual could show "special" damage that was distinct from and more severe than that suffered by the general public. The private plaintiff with special damages had the necessary standing (legally protectible interest) to seek injunctive relief. In some states, the problem of standing has been corrected through laws that allow a private citizen to sue to abate public nuisances such as air pollution, though these laws are by no means the norm. Moreover, with the nuisance doctrine the plaintiff has the burden of showing that the harm she or he has experienced was caused by a particular defendant. However, since pollutants can derive from many sources, it can be difficult, if not impossible, to prove that a particular polluter is responsible for a particular problem. Last, nuisance law was useful only to combat particular polluters; it did not provide an ongoing and systematic mechanism for the regulation and control of pollution.

Early in the nineteenth century, a few U.S. cities recognized the shortcomings of common-law remedies and enacted local laws that attempted to address the...