The Legislative History of U.S. Air Pollution Control
| Author | Arnold W. Reitze, Jr. |
| Pages | 1-23 |
Page 1
Chapter 1:
The Legislative Histor y of
U.S. Air Pollution Control
§1. Introduction
e legal roots of air pollution control are found
in common-law tort remedies; public nuisance,
private nuisance, trespass, and strict liability his-
torically have been used for pollution control.
Some tort actions provide for the use of equitable
remedies such as injunctions or abatement orders,
rather than limiting successful plaintis to money
damages. Using causes of action, such as nuisance
or trespass, allows for court orders to be issued to
require the installation of pollution controls or to
force seriously polluting businesses to shut down.
It is dicult, however, for a plainti to win a n air
pollution ca se. Air pollution often involves many
sources whose emission can be transported long
distances, and chemica l tra nsformations occur
in the atmosphere during tra nsport. e interac-
tion of many chemicals, before and during expo-
sure, and the limits of scientic knowledge make
proving causation dicult. In addition, the trans-
actional costs of the tort system a re high, which
usually means that only the most severely injured
obtain eective legal representation. Because the
time bet ween the release of air pollutants and the
manifestation of personal injury can be decades, by
the time the tort system responds, ma ssive injuries
may have occurred, a nd potential defendants may
no longer be in business. Moreover, from the late
1800s until the 1960s, the court system had a pro-
nounced tilt in favor of protecting polluters.
As the nation’s industriali zation gained momen-
tum, t he judiciar y embraced the concept that t he
business community needed protection from law-
suits from those who were injured.1 rough judicial
1. R. Dale Grinder, e Battle for Clean Air: e Smoke Problem in
Post-Civil War America, in P R A
C, 1870–1930, at 91 (Martin V. Melosi ed., 1980) [here-
decisions, the law of torts evolved to limit corporate
liability. During the second half of the 1800s, fault
became an element that had to be proved in order
for a plainti to recover; the plainti had to show
not only that a right had been violated but also that
the defenda nt had eng aged in intentional or neg-
ligent misconduct. Prior to 1850, recovery in tort
required proof of a n intentional tort or a violation
of a property right where the defendant’s motives
were largely irrelevant. e case usually cited as
beginning the requirement for proving fault is
Brown v. Kendall,2 which limited recovery to cases
involving intentional or negligent misconduct.
is negligence-based c ause of action was quickly
adopted throughout the United States. Additional
defenses soon were recognized, including the doc-
trines of contributory negligence, assumption of
risk, and the fellow-servant r ule, which could be
used to preclude liability being imposed on negli-
gent defendants. Charities and governmental units
were immune from tort actions. A short statute
of limitations that beg an running at the time of
the last exposure often precluded a legal remedy
because the statute ran before the manifestation of
the injury. e public policy of encouraging eco-
nomic growth was more important than concern
for either private property or human hea lth that
was adversely aected by air pollution. is policy
had the eect 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 pollu-
tion. During t he 20th century, attitudes gradua lly
inafter Grinder]. e legal techniques used to prevent injured
victims from obtaining a tort recovery are discussed in S
M. S, L ch. 2 (1980).
2. 60 Mass. (6 Cush.) 292 (1850).
Page 2 Air Pollution Control and Climate Change Mitigation Law
shifted so that plaintis would occasionally win a
nuisance case, but e ven today judicial balancing
rarely results in signicant equitable relief being
granted to plaintis. e defendant, by paying
damages, eec tively obtains the right to pollute.3
e tort s ystem failed to protect public health
and welfare from the adverse eects of air pollu-
tion. is led to local government ordinances, usu-
ally ba sed 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
book. Private tort remedies, however, remain the
only signicant avenue for lega l redress by those
who suer personal injuries and property damage
due to the release of air pollutants. Such injuries
may be remedied using the legal doctrines known
as toxic torts, but this area of law is not the subject
of this text.4
§2. Air Pollution Control by State
and Local Governments
§2(a). 1880 to 1918
In the United States, the industrial-based cities
such as Chicago, Cincinnati, Cleveland, Detroit,
Louisville, Pittsburgh, and St. Louis had signi-
cant air pollution problems by the last quarter of
the 19th century.5 e amount and type of air pol-
lution in these cities were related to the fuel used
in each area. Boston, New York, Philadelphia, and
other cities in the eastern United States primarily
used anthracite coa l from eastern Pennsylvania. In
the cities of the Midwest, the most utilized fuel was
high-sulfur, bituminous coal. Cities that burned
bituminous coal developed the most serious air
pollution problems, and their citizens became the
original a ir pollution activists.6 e rst air pollu-
tion ordinance may have been an 1881 Chicago
ordinance that prohibited dense smoke.7 Shortly
3. Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970).
See generally Gerald Torres, Who Owns the Sky?, P E.
L. R. ().
4. e weakness of the tort system is covered in more detail in
Arnold W. Reitze Jr., A Century of Air Pollution Control Law:
What’s Worked; What’s Failed; What Might Work, E. L.
(1991).
5. See Grinder, supra note 1.
6. Id.
7. J E. K E U, P P, A
C E C F E W
M V A P -, at 46-47 (1977).
However, an ineective 1868 ordinance in Pittsburgh is referred
thereafter, Cincinnati, Cleveland, Pittsburgh,
St. Louis, and St. Paul enacted public nuisance
laws prohibiting emissions of smoke. As early a s
1902, the New York City Hea lth Commissioner
attempted to ban the use of bituminous coal dur-
ing the anthracite coal miners’ strike.8 By 1910,
Boston was regulating smoke using the Ringel-
mann Chart. By 1912, nearly every major city in
the United States had a smoke abatement program.
Prior to the eorts of Los Angeles to control pho-
tochemical smog’s precursors in the 1940s, local
government air pollution programs usual ly only
attempted to control smoke.9 Most communities
considered smoke something to be endured as the
price of industrialization and progress.
Early eorts to control air pollution led to court
challenges before judges who were not sympathetic
to local government eorts to abate air pollution.
In the late 1800s, many cities enacted smoke ordi-
nances that subsequently were invalidated by t he
courts.10 For example, St. Louis enacted an ordi-
nance to abate smoke as a “nuisance,” but the
Missouri Supreme Court, in 1893, ru led t hat t he
ordinance was an unconstitutional usurpation of
the state’s police power because only the state had
the power to make smoke relea ses a nuisance.11
Subsequently, another ordinance was enacted, but
the Manufacturers A ssociation of St. Louis pushed
through an a mendment that provided a defense to
a nuisance action if there was no known way to
prevent the emission or discharge.12
During the rst two decades of the 20th cen-
tury, citizen groups, especially women’s clubs,
began to protest having to live with the eects of
urban a ir pollution. Political tension developed as
air pollution control advocates divided into those
concerned prima rily with the quality of the envi-
ronment and those concerned primarily with eco-
nomic “progress” and eciency. ose activists
who saw smoke as a public nuisance demanded
that air pollution laws be enforced. In contrast,
those who considered smoke to be an inecient
to in Cli I. Davidson, Air Pollution in Pittsburgh: A Historical
Perspective, 29 JAPCA 1035, 1037 (1979).
8. See Grinder, supra note 1, at 84.
9. K U, supra note 7.
10. Ralph H. German, Regulation of Smoke and Air Pollution in
Pennsylvania, 10 U. P. L. R. 493 (1949).
S.W. 954 (Mo. 1897).
12. e amendment was upheld in State v. Tower, 84 S.W. 10 (Mo.
1904). See also Eugene McQuillan, Abatement of Smoke Nuisance
in Large Cities by Legislative Declaration at Discharge of Dense
Smoke Is a Nuisance Per Se, 60 C. L.J. 343 (1905).
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