The Legislative History of U.S. Air Pollution Control

• Author: Arnold W. Reitze, Jr.
• Pages: 1-23

Page 1

Chapter 1:

TheLegislative Historyof

U.S. Air PollutionControl

§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 plaintis 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 dicult, however, for a plainti to win an air

pollution case. Air pollution often involves many

sources whose emission can be transported long

distances, and chemical transformations occur

in the atmosphere during transport. e interac-

tion of many chemicals, before and during expo-

sure, and the limits of scientic knowledge make

proving causation dicult. In addition, the trans-

actional costs of the tort system a re high, which

usually means that only the most severely injured

obtain eective legal representation. Because the

time between the release of air pollutants and the

manifestation of personal injury can be decades, by

the time the tort system responds, massive injuries

may have occurred, and 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 industrialization gained momen-

tum, the judiciar y embraced the concept that the

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, inP  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 engaged in intentional or neg-

ligent misconduct. Prior to 1850, recovery in tort

required proof of an 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 cause 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 rule, 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 began 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 health that

was adversely aected by air pollution. is policy

had the eect 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 the 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 plaintis would occasionally win a

nuisance case, but even today judicial balancing

rarely results in signicant equitable relief being

granted to plaintis. e defendant, by paying

damages, eectively obtains the right to pollute.3

e tort system failed to protect public health

and welfare from the adverse eects of air pollu-

tion. is led to local government ordinances, usu-

ally based 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 signicant avenue for lega l redress by those

who suer 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 coal 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 air 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 ineective 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 as

1902, the New York City Health 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 eorts of Los Angeles to control pho-

tochemical smog’s precursors in the 1940s, local

government air pollution programs usually only

attempted to control smoke.9Most communities

considered smoke something to be endured as the

price of industrialization and progress.

Early eorts to control air pollution led to court

challenges before judges who were not sympathetic

to local government eorts to abate air pollution.

In the late 1800s, many cities enacted smoke ordi-

nances that subsequently were invalidated by the

courts.10For example, St. Louis enacted an ordi-

nance to abate smoke as a “nuisance,” but the

Missouri Supreme Court, in 1893, ruled that the

ordinance was an unconstitutional usurpation of

the state’s police power because only the state had

the power to make smoke releases a nuisance.11

Subsequently, another ordinance was enacted, but

the Manufacturers Association 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 eects of

urban a ir pollution. Political tension developed as

air pollution control advocates divided into those

concerned primarily with the quality of the envi-

ronment and those concerned primarily with eco-

nomic “progress” and eciency. 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 inecient

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).

11. City of St. Louis v. Heitzeberg Packing & Provision Co., 42

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).