Learning From Patchwork Environmental Regulation: What Animal Advocates Might Learn From the Varied History of the Clean Air Act

• Author: Elizabeth Hallinan & Jeffrey D. Pierce
• Pages: 3-42

3

Chapter 1:

Learning From Patchwork

Environmental Regulation:

What Animal Advocates

Might Learn From the Varied

History of the Clean Air Act

Elizabeth Hallinan and Jeffrey D. Pierc e

I. e History of Federal Air Pollution Regulation ......................................4

A. State Eorts to Regulate Air Pollution Prior to the Clean Air

Act ...................................................................................................5

B. Mounting Federal Attention, the Clean Air Act of 1963,

and Increasing State Eorts .............................................................. 7

II. Insights From the Clean Air Act Into the Legislative and

Regulatory Processes .............................................................................. 11

III. Application to Contemporary Eorts in Animal Protection ..................15

A. Case Study 1: Industrial Animal Agriculture ................................... 15

B. Case Study 2: Circuses and Traveling Shows ...................................25

Conclusion .....................................................................................................39

The federal commitment to curb air pollution stemmed less from well-

dened national policies or pressure from interest groups than from

the perceived problem that inconsistent state or local regulations cre-

ated for the regulated entities themselves. Rather than hindering the passage

of the Clean Air Act of 1970, the automobile and coal industries eventually

supported federal oversight to counteract what they viewed as overly stringent

state standards and to prevent the states, through federal preemption, from

ratcheting up their regulation of air pollution. e power of federalism ani-

mates the history of the Clean Air Act, with local and state eorts catalyzing

the passage of new national laws and vindicating the federalist view that t he

states may serve as the laboratories of democracy. e legacy of federal air

4 What Can Animal Law Learn From Environmental Law?

pollution oversight therefore demonstrates how relatively small victories at

the local and state levels may eventually lead to signica nt reform at the fed-

eral level, a pattern of development that might be replicated in other contexts,

including that of animal protection.

For their part, animal advoc ates fol lowing t his example mi ght consider

local a nd state opportunities to restrain either the pr actices or the markets

of an imal use industrie s—that is to say, to regulate either the production

methods or the animal products themselves. In some cases , like farmed

anima l welfare reform, such cumulat ive eorts mi ght eventua lly drive

industr y stakeholders to Washington to demand un iform federa l oversight,

which—l ike the automobile and coal industries before them—an imal agri-

cultura lists m ight prefer to patchwork and unpredictable local and st ate

regulat ion. In other cases, like circuse s and traveling shows, industry stake-

holders might even forego t he trip to Washington and capitulate to the

outcomes that welfare advocates have preferred, changing their business

models to incorporate more sustainable and humane practice s. In either

case, nat ional politicians mig ht seize the oppor tunity to lift an imal protec-

tion issues from the local and state arena and grant them national attent ion

and federa l oversight.

is chapter explores the development of local, state, and federal eorts

to regulate air qualit y and asks how that n arrative might instruc t contem-

porary advocates working to advance importa nt animal protection policies.

Part I revie ws the history of air pollution oversight culminating in the pas-

sage of the federa l Clean Air Act of 1970, paying particular attention to the

pressure t hat inconsistent state law placed on both industry and Congress.

Part II considers the insights that this hi story oers into the legislative and

regulator y proc esses pertinent to anima l and environmental protection.

Part III includes case studie s from two current are as of anima l law— indus-

trial anima l agriculture and the treatment of elephants in circuses—for

which the contours of contemporary regulation re semble i n some fashion

the previou s patchwork of state oversight of air pollution de scribed in Part

I. Part I II conclude s with prop osals for how the narrative of the Clean A ir

Act might guide animal advocates seeking to make legislative change s in

these areas.

I. The History of Federal Air Pollution Regulation

e rise of federa l air pollution control in the United States, culminating

with the Clean Air Act of 1970, emerged from the conuence of three

Learning From Patchwork Environmental Regulation 5

essentia l pressure points: mou nting concern among the American pub-

lic over the environment, the increasing inconvenience the automobile

and coal industries suered in the face of inconsistent and unpredict ably

unfolding state oversig ht, and the probable opportunism of two n ational

politician s.1 Althoug h our dome stic politics will almost certainly never

again see a time quite li ke the 1960s, with its bipartisan dedication to

improving the environment t hrough federal law, t he history of air pol-

lution control that led to the Clean Air Act’s pa ssage may still instruct

advocates in contemporary justice movements, including those  ghting

for animal protect ion.

A. State Efforts to Regulate Air Pollution Prior to the Clean Air Act

Concern over a ir pollution arose in southern California in the early 1940s,

following several days during which the smog that had gripped greater Los

Angeles sent citizens into sneezing, coughing , and cr ying ts.2 Early eorts

to regulate air pollution consisted only of local ordinances. However, these

initial attempts at regulation faced the same hurdles that would eventually

stymie environmental and hea lth agencies at every level of government.3

Municipal and other articial bounda ries mean nothing to emissions com-

ing from a variety of sources both stationary and mobile.4 is, coupled with

its own remarkable mobility, made (and continues to make) air pollution

logistically complicated to regulate eectively.

As Los Angeles struggled to curtail rising smog levels, state legislators in

Sacramento passed a law in 1947 that set California emissions standards for

“visible smoke,” granting counties local, if voluntary, authority to regu late.5

In the face of this perceived threat to industr y, railroad and oil companies

proered immediate resistance.6 Nonetheless, the voluntary nature of these

regulatory measures robbed the law of its teeth, with several counties simply

declining to comply.7 No one was happy as a result: industry continued to

1. See ge nerally Donald Elliot, Bruce Acke rman & John C. Millian, Toward a eory of Statut ory

Evolution: e Federal ization of Environment al Law, 1 J.L. E.  O. 313, 331 (1985) [here-

inafter Federal ization].

2. See J E. K  E U, P  P: A C E  C 

F E W M V A P 1940-1975, 52-53 (1977) [hereinafter

P  P]; see also Arthur C. Stern, History of Air Pollution Legislation in the United States,

32 J. A P C A’, 44, 48 (1982).

3. P  P, supra note 2, at 55-56.

4. Id. at 55.

5. See Stern, supra note 2, at 47.

6. P  P, supra note 2, at 61.

7. Id. at 63-68.