CHAPTER 1 THE LEGISLATIVE HISTORY OF U.S. AIR POLLUTION CONTROL
| Jurisdiction | United States |
(2000)
THE LEGISLATIVE HISTORY OF U.S. AIR POLLUTION CONTROL*
George Washington University Law School
Washington, D.C.
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TABLE OF CONTENTS
§ 1-1. Introduction
§ 1-2. Air Pollution Control by State and Local Governments
§ 1-2(a). 1880 to 1918
§ 1-2(b). Post World War I Air Pollution Control Efforts: 1920-1963
§ 1-2(c). Local Land Use Controls
§ 1-2(d). The Role of Local Government Today
§ 1-3. The Development of the Federal Air Pollution Program: 1963-1970
§ 1-4. The Clean Air Act in the 1970s
§ 1-5. The CAA in the 1980s
§ 1-6. Legislative History of the 1990 CAA Amendments
§ 1-7. Overview of the 1990 CAA Amendments
§ 1-8. Post-1990 Legislation
§ 1-8(a). The One Hundred Second Congress
§ 1-8(b). The One Hundred Third Congress
§ 1-8(c). The One Hundred Fourth Congress
§ 1-8(d). The One Hundred Fifth Congress
§ 1-9. Conclusion
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§ 1-1. Introduction
The legal roots of air pollution control are found in common law tort remedies. Some tort actions provide for the use of equitable remedies such as injunctions or abatement orders, rather than limiting successful plaintiffs to money damages. These remedies, which include public nuisance,1 private nuisance,2 trespass,3 and strict liability,4 historically have been used for pollution control. Using these causes of action allows for court orders to be issued to require the installation of pollution controls or to force seriously polluting businesses to shut down.5 It is difficult, however, for a plaintiff to win an air pollution case. Air pollution often involves many sources whose emission can be transported for long distances, and during transport chemical transformations occur in the atmosphere.6 The interaction of many chemicals, before and
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during exposure, and the limits of scientific knowledge, makes proving causation difficult.7 In addition, the transactional costs of the tort system are high so only the most severely injured can expect to obtain effective legal representation.8 Because the time between the release of air pollutants and the manifestation of personal injury can be decades, by the time the tort system responds, massive injuries may have occurred and the potential defendants may no longer be in business. Moreover, the court system had a pronounced tilt in favor of protecting pollutors from the late 1800s until the 1960s.
As the nation's industrialization gained momentum, the judiciary embraced the concept that the fledgling economy could expand only if the business community was protected from law suits by those who were injured.9 Through their decisions, the law of torts changed to limit corporate liability.10 During the second half of the 1800s, fault became an element that had to be proved in order for a plaintiff to recover; the plaintiff not only had to show that a right had been violated but also that the defendant had engaged in intentional or negligent misconduct.11 This negligence-based cause of action was quickly adopted throughout the United States. Additional defenses were soon recognized that made it more difficult to win a tort case. The doctrines of contributory negligence, assumption of risk, and the fellow-servant rule could preclude liability against negligent defendants. Charities and governmental units were given immunity from tort actions.12 Moreover, a short statute of limitations that began running at the time of the last exposure, often
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precluded a legal remedy because the statute ran before the manifestation of the injury.13 The public policy of encouraging economic growth was more important than concern for either private property or human health that was adversely affected by air pollution.14 This policy had the effect of allowing corporations to pollute without accountability.
Judicial hostility to environmental claims also is manifested by the rarity with which the courts have used the doctrine of nuisance to abate air pollution. During the twentieth century, attitudes gradually shifted so that plaintiffs would occasionally win a nuisance case, but even today judicial balancing rarely results in significant equitable relief being granted to plaintiffs.15 The defendant, by paying damages, effectively obtains the right to pollute.16
The tort system failed to protect public health and welfare from the adverse effects of air pollution. This led to local government ordinances, usually based on public nuisance concepts, becoming the control of choice through the mid-1960s. Since then, local government controls have gradually been supplanted by an increasingly complex federal and state program that is the subject of most of this article. Private tort remedies, however, remain the only significant avenue for legal redress by those who suffer personal injuries and property damage due to the release of air pollutants. These problems may be remedied using the legal doctrines known as toxic torts, but this area of law is not the subject of this article.
§ 1-2. Air Pollution Control by State and Local Governments
§ 1-2(a). 1880 to 1918
In the United States, the industrial-based cities such as Pittsburgh, Cincinnati, St. Louis, Cleveland, Detroit, Chicago, and Louisville had significant air pollution problems by the last quarter of the nineteenth century.17 The amount and type of air pollution in these cities was related to the fuel used in each area. New York, Philadelphia, Boston, and other cities in eastern United States primarily used anthracite coal from eastern Pennsylvania.18 In the cities of the Midwest, the most utilized fuel was high-sulfur, bituminous coal.19 Cities that burned bituminous coal developed the most serious air pollution problems, and their citizens became the original air pollution activists.20 The first air pollution ordinance may have been an 1881 Chicago ordinance which prohibited dense smoke.21 Shortly thereafter, Cincinnati, Pittsburgh, Cleveland, St. Louis, and St. Paul enacted public nuisance laws that prohibited emissions of smoke. As early as 1902, the New
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York City Health Commissioner attempted to ban the use of bituminous coal during the anthracite coal miners' strike.22 By 1910, Boston was regulating smoke using the Ringelmann Chart.23 By 1912, nearly every major city in the United States had a smoke abatement program.24 But, until Los Angeles began to control photochemical smog precursors in the 1940s, local government air pollution programs usually only attempted to control smoke.25 However, in most communities, smoke was considered something to be endured as the price of industrialization and progress.26
Early efforts to control air pollution led to court challenges before judges who were not sympathetic to local government efforts to abate air pollution. In the late 1800s, many cities had enacted smoke ordinances that were invalidated by the courts.27 For example, St. Louis had enacted an ordinance to abate smoke as a "nuisance,"28 but the Missouri Supreme Court, in 1893, ruled that the ordinance was an unconstitutional usurpation of the state's police power, because only the state had the power to make smoke releases a nuisance.29 Subsequently, another ordinance was enacted, but the Manufacturers Association of St. Louis pushed through an amendment that provided a defense to a nuisance action if there was no known way to prevent the emission or discharge.30
During the first two decades of the twentieth century, citizen groups, especially women's clubs, began to protest having to live with the effects of urban air pollution.31 The medical community noted an increase in nasal, throat, bronchial and pulmonary ailments attributed to air pollution.32 Engineers,33 whose jobs were to abate smoke, also participated in the politics of air pollution control. These engineers viewed smoke as an indicator of inefficient use of energy resources34 that could be reduced by technical advances in combustion technology.35 Engineers, along with women's organizations and civic groups, participated in studies on the effects of smoke pollution in cities and helped draft legislation. Political tension developed as air pollution control advocates divided into those concerned with the quality of the environment and those concerned with economic "progress" and efficiency. Those activists who saw smoke as a public nuisance demanded that air pollution laws be enforced. In contrast, those who considered smoke to be an inefficient
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use of fuel, including most engineers who worked in the combustion field, advocated "education" of polluters so that they would reduce their emissions.36 Progressive politicians often advocated the use of "experts" to run air quality commissions, which led to the hiring of engineers as smoke inspectors.37 With members of the "education" group filling the positions of inspectors, air pollution abatement efforts progressed slowly.
§ 1-2(b). Post World War I Air Pollution Control Efforts: 1920-1963
During World War I, air pollution control efforts were inconsequential. The war generated economic expansion resulted in increased air pollution emissions, but smoke toleration was considered a patriotic duty, and economic well-being was equated with smoke.38 During the business boom of the 1920s, political pressure for aggressive air pollution control diminished, and control was largely limited to minimal efforts made by engineers that ran local air pollution control agencies.39 The Great Depression, which followed, prevented the placement of additional economic burdens on the private sector.
During World War II, the national need for war oriented production and the lack of money for domestic programs prevented implementation of air pollution control programs, although some reduction in the emission of particulate matter and sulfur oxides occurred because of improvements...
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