Origins of the Clean Air Act: a new interpretation.

Author:Ahlers, Christopher D.
Position:I. Introduction through IV. A Case Study on the Abatement Conference and Judicial Enforcement Procedure: United States v. Bishop Processing Company, p. 75-102
  1. INTRODUCTION II. THE 1955 ACT III. THE 1963 ACT A. General Provisions and Stationary Sources B. Mobile Sources C. Miscellaneous Provisions D. Appropriations IV. A CASE STUDY ON THE ABATEMENT CONFERENCE AND JUDICIAL ENFORCEMENT PROCEDURE: UNITED STATES V. BISHOP PROCESSING COMPANY V. THE 1965 ACT A. General Provisions and Stationary Sources B. Mobile Sources C. Appropriations D. Federal Regulations VI. The 1967 Act A. General Provisions and Stationary Sources B. Mobile Sources C. Title III Pro visions D. Appropriations VII. THE 1970 ACT A. General Provisions and Stationary Sources B. Mobile Sources C. Appropriations VIII. Trends in the Evolution of the Clean Air Act XI. CONCLUSION I. INTRODUCTION

    The traditional view of historians of environmental law is that the Clean Air Act (CAA) (1) was passed in 1970 in response to the Year of the Environment. Punctuated by a number of developments in environmental law and policy, the year 1970 was indeed an important year in the history of environmental law. On the first day of the year, Congress passed the National Environmental Policy Act (NEPA), (2) requiring federal agencies to consider environmental impacts of major federal actions. (3) In his State of the Union address in January, President Nixon set forth an ambitious agenda to improve the condition of the environment over the course of the decade. (4) On April 22, 1970, Americans participated in Earth Day demonstrations, demanding governmental action to address the problem of pollution. (5) On December 2, 1970, the Environmental Protection Agency (EPA) was formed, following President Nixon's transmission to Congress of a reorganization plan for the executive branch. (6) The passage of the Clean Air Amendments of 1970 on the last day of the year capped off the Year of the Environment. (7) Given the historical context of these events, traditional scholarship has typically been dismissive of federal air pollution laws passed before 1970. (8) The recurring theme is that these laws were weak and ineffectual, and that the Clean Air Amendments of 1970 set forth a completely different approach. (9)

    This Article presents a view that departs from this traditional interpretation. Although the events of the Year of the Environment played a role in motivating the passage of the Clean Air Amendments of 1970, they do not explain how Congress actually constructed the CAA. (10) Contrary to the traditional view, the modern CAA was the product of a long, plodding legislative process over the course of fifteen years, in which Congress grappled with the problem of addressing a complex problem within contemporary legal and political constraints. (11) Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern CAA. (12) Most major principles and features of the modern statute can be traced back to those early acts. (13) There is far more continuity between the early acts and the modern CAA than has been recognized in traditional scholarship.

    This Article serves several purposes. First, as the nation continues to move in the direction of using the CAA to address global warming and climate change, it is important to understand how the Act was created. Studying the formation of the CAA is the best way to understand how the statute functions in its current form. Second, for students and professors of environmental law and administrative law, the CAA provides an excellent example of how Congress created the modern regulatory state. The modern regulatory state was not formed overnight, or even in the course of any one year.

  2. THE 1955 ACT

    In 1955, Congress passed the first in a series of five legislative acts that culminated in the 1970 Clean Air Act Amendments. (14) Although it did not have an official short title, the long title of this short, two-page act was "[t]o provide research and technical assistance relating to air pollution control" (1955 Act). (15) Several air pollution episodes motivated the passage of the 1955 Act. First, the London Fog disaster of December 1952 resulted in over 3,000 deaths in the United Kingdom. (16) Second, the Donora Smog incident of October 1948 resulted in twenty deaths in Pennsylvania. (17) The legislative history of the 1955 Act took note of these events, as well as others. (18) These individual events reflect a general historical pattern of environmental disasters leading to federal legislative action. (19)

    The 1955 Act was a milestone in the history of air pollution law. Congress granted federal authority to the Secretary of Health, Education, and Welfare (Secretary), as well as to the Surgeon General of the Public Health Service (Surgeon General), with respect to air pollution. (20) Generally, Congress authorized the Surgeon General "to prepare or recommend research programs for devising and developing methods for eliminating or reducing air pollution." (21) Specifically, the 1955 Act authorized the Surgeon General to engage in four different activities:

    (1) [E]ncourage cooperative activities by State and local governments for the prevention and abatement of air pollution; (2) collect and disseminate information relating to air pollution and the prevention and abatement thereof; (3) conduct in the Public Health Service, and support and aid the conduct by State and local government air pollution control agencies, and other public and private agencies and institutions of, technical research to devise and develop methods of preventing and abating air pollution; and (4) make available to State and local government air pollution control agencies, other public and private agencies and institutions, and industries, the results of surveys, studies, investigations, research, and experiments relating to air pollution and the prevention and abatement thereof. (22)

    Congress also authorized the Surgeon General to conduct investigations of specific air pollution problems, upon request of any state or local air pollution control agency, "with a view to recommending a solution." (23) Because Congress only authorized these actions, and did not require them, the powers granted were discretionary in nature. (24)

    Still, the 1955 Act included some mandatory requirements. It required the Surgeon General to prepare and publish from time to time reports of the "surveys, studies, investigations, research, and experiments made under the authority of this Act." (25) While there was no mandatory obligation to perform such investigations in the first place, (26) this reporting requirement was a significant step in the direction of the modern CAA.

    By modern standards, Congress created a limited role for the federal government relating to air pollution control. There were two reasons for this limited role. First, air pollution is a matter of scientific complexity, requiring the gathering of substantial information before deciding on regulatory requirements. (27) A general policy of the 1955 Act was to address the dangers to public health and welfare from air pollution. (28) In the legislative history, Congress more specifically identified the "need to determine the causes of air pollution, the meteorological factors and chemical elements involved, the effects, and possible preventive measures." (29) Congress realized this goal would not be achieved within the five-year appropriations period set forth in the 1955 Act. (30) Rather, the objective was to encourage coordination among different agencies toward the goal of understanding the nature and extent of the air pollution problem. (31)

    Despite its limited focus, the 1955 Act framed the way Congress would perceive air pollution for the next sixty years. The language "dangers to the public health and welfare" in the policy statement presented a new way of thinking about air pollution, compared with the common law conception of individual harm. (32) In subsequent acts, the term "dangers" would evolve into the concept of "endangerment," a standard that pervades the modern CAA. (33) In the modern CAA, endangerment functions as a condition for triggering mandatory action by EPA to address a particular air pollutant, in a number of different programs. (34)

    The second reason for Congress's limited approach was the constraint of federalism. (35) Another policy of the 1955 Act was "to preserve and protect the primary responsibilities and rights of the States and local governments in controlling air pollution." (36) This fundamental premise is a longstanding theme in the history of the statute, and is set forth several times in the modern CAA. (37) The premise that the states and local governments have primary responsibility over air pollution has not changed in the sixty years since the passage of the 1955 Act. (38)

    A related concern was the need to justify the federal regulation of air pollution within the limitations of the...

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