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

• Author: Morriss, Andrew P.
• Position: Book Review

Chasing the Wind: Regulating Air Pollution in the Common Law State By Noga Morag-Levine Princeton, N.J.: Princeton University Press, 2003.

Pp. xv, 259. $35.00 cloth.

Political scientist Noga Morag-Levine's new book Chasing the Wind poses an important challenge to many parties in the debate over environmental law and policy. She sets aside the conventional debate between green partisans seeking greater regulatory intervention and economics-minded critics of current law and policy who seek to reform environmental law to reflect concerns such as the knowledge problem (see, for example, Friedrich Hayek, "The Use of Knowledge in Society," American Economic Review 35 [1945]: 519-30). Instead, Morag-Levine attempts to reframe the debate as one between a technology-based approach (as in Germany) and a risk-based approach (as in the U.S. Clean Air Act). Although she does not succeed in her attempt, her book offers a wealth of insights into the debate over air-pollution-control efforts and environmental policy. It certainly belongs on the bookshelf of anyone concerned with environmental issues.

Statutes are often poorly written, and books about law imitate statutes far too often. Encountering a well-written book on a legal topic is therefore a rare surprise, and Morag-Levine deserves praise for turning the complexities of environmental law into a lively read. She has a knack for explaining legal ideas without resorting to jargon. The presence of a "plot" also helps the book's style: the author has a thesis and tells a coherent story. Further, as a commentator on U.S. environmental law and policy, Morag-Levine has a huge advantage: her law degree is not from a U.S. law school, but from the Hebrew University of Jerusalem. Being trained in a somewhat different approach to law (Israeli law schools teach in the British tradition) gives her a valuable perspective on American law. This strength is also a weakness, however, as I discuss later.

The basic thesis of the book is original and provocative. Morag-Levine argues that the law concerning environmental protection contains two opposing traditions: one based in European civil law, which ultimately yielded technology standards for air-pollution control, and the other based in the common law, which came to rely on risk-based standards. The civil-law systems, exemplified in Germany, produced regulatory regimes that specified technological measures that industries were required to take to ameliorate, but not...