Struggling for Context: An Appraisal of 'Struggling for Air

Date01 October 2016
Struggling for Context: An
Appraisal of “Struggling for Air”
by Craig N. Oren
Craig N. Oren is Professor of Law, Rutgers Law School.
Richard Revesz’s and Jack Lienke’s new book, Strug-
,1 has attracted considerable attention:
for instance, it was the subject of a symposium in
this publication.2 I want to build on that discussion here,
taking a dierent perspective from any expressed in the
Revesz and Lienke argue that there was a tragic aw
in the Clea n A ir Act (CAA) Amendments of 19703: the
“grandfathering” of existing electricity generating units by
exempting them f rom national emissions standards. is,
they argue, encouraged pre-1970 units to continue to run
without sucient pollution controls and to injure health
and the environment.
e book is incisive and a good read; everyone con-
cerned with environmental issues should study it. But I
want to question the authors’ account of why “grandfather-
ing” came to be, as well as their assumption that tr ying to
regulate power plants as they wished would have proven
e authors begin by providing an excellent primer on
how coal is used and its health and welfare eects.4 As
the authors point out, coal contains sulf ur—coal mined
in the ea stern United States has a particularly high sulfur
content5—and when burned, the sulfur becomes sulfur
dioxide, a da ngerous air pollutant.6 Even worse, the sul-
1. R L. R  J L, S  A: P P
  “W  C” (2016) [hereinafter S].
2. William M. Bumpers et al.,  
 , 46 ELR 10541 (July 2016). And just before this
Comment went to press, Leon Billings and omas Jorling, the leading
staers who assisted in drafting the Clean Air Act Amendments of 1970,
released an open letter to Revesz and Lienke criticizing their book. Clean Air
Watch,   (Sept. 9,
3. Pub. L. No. 91-604, 84 Stat. 1709.
4. See S, supra note 1, at 7-12.
5. Id. at 11.
6. For the U.S. Environmental Protection Agency’s (EPA’s) most recent stan-
dards and an explanation of the health and welfare eects of the pollutant,
see National Ambient Air Quality Standards for Sulfur Dioxide, 75 Fed.
Reg. 35520 (June 22, 2010); EPA’s most recent attempt to update its as-
sessment of sulfur dioxide may be found at 
fur dioxide, a long w ith the nitrogen oxide produced by
high-temperature combustion, wafts downwind generally
from the many power plants in the Midwest or Southeast
to the Northea st and eastern Canada, and is converted
into ne particles. is particulate matter causes acid rain
and impairs visibility.7 e particles are so sma ll that they
can penetrate into the deep lung, and studies have shown
a strong correlation bet ween concentrations of particulate
matter in the air and the da ily mortality rate in the loca le.
In addition, coal contains trace amounts of mercury
that, when the coal is burned, is transformed into a soluble
compound that bioaccumulates in sh, a nd causes neu-
rological impairments in t hose who eat it—generally, the
rural poor who depend on subsistence shing for part of
their dietary needs. Fetuses are particularly subject to dam-
age.8 Finally, as the authors point out, coal-burning utilities
contribute close to 30% of greenhouse gases that are warm-
ing the ear th and threatening disruption of the ecosystem
as well as damage to public health.
As Revesz and Lienke note, concern about the eects of
coal-red power plants and eorts to control those eects
go back at least 25 years, rather than being a “War on Coal”
launched by the Barack Obama Administration.9 Indeed,
concern about long-range transport of pollution from coal-
red plants goes back to the U.S. Environmental Protec-
tion Agency’s (EPA’s) struggles in the early 1970s against
, available at https://
7. For EPA’s most recent ambient air quality standards for par ticulate mat-
ter, including a description of its eects, see National Ambient Air Quality
Standards for Particulate Matter, 78 Fed. Reg. 3086 (Jan. 15, 2013). EPA’s
most recent update of its assessment of particulate matter may be found at
U.S. E P A, D I R
P   N A A Q S  P-
 M (2016), available at
8. For EPA’s most recent national emission standards for existing power plants,
see National Emission Standards for Hazardous Air Pollutants From Coal-
and Oil-Fired Electric Utility Steam Units and Standards of Performance
for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional
and Small Industrial-Commercial-Institutional Steam-Generating Units,
77 Fed. Reg. 9304 (Feb. 16, 2012).
9. S, supra note 1, at 22-23.
   
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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