AIR POLLUTION

AIR POLLUTION

Air pollution has plagued communities since the industrial revolution and even before. Airborne pollutants, such as gases, chemicals, smoke particles, and other substances, reduce the value of and ability to enjoy affected property and cause significant health and environmental problems.

Despite the long history and significant consequences of this problem, effective legal remedies only began to appear in the late nineteenth and early twentieth centuries. Though some U.S. cities adopted air quality laws as early as 1815, air POLLUTION at that time was seen as a problem best handled by local laws and ordinances.
Only as cities continued to grow, and pollution and health concerns with them, did federal standards and a nationwide approach to air quality begin to emerge.
The earliest cases involving air pollution were likely to be brought because of a noxious
smell, such as from a slaughterhouse, animal herd, or factory, that interfered with neighboring landowners’ ability to enjoy their property.
These disputes were handled through the application of the NUISANCE doctrine, which provides that possessors of land have a duty to make a reasonable use of their property in a manner that does not harm other individuals in the area.
A person who polluted the air and caused harm to others was liable for breaching this duty and was required to pay damages or was enjoined (stopped through an INJUNCTION issued by a court) from engaging in the activities that created the pollution. In determining whether to enjoin an alleged polluter, courts balanced the damage to the plaintiff landowner’s property against the hardship the defendant polluter would incur in trying to eliminate, or abate, the pollution. Courts often denied injunctions because the economic damage suffered by the defendant—and, by extension, the surrounding community if the defendant was essential to the local economy—in trying to eliminate the pollution often outweighed the damage suffered by the plaintiff. Thus, in many cases, the plaintiff was left only with the remedy of money damages—a cash payment equal to the estimated monetary value of the damage caused by the pollution—and the polluting activities wereallowed to continue.Using a nuisance action to control widespreadair pollution proved inadequate in otherways as well. At COMMON LAW, only the attorneygeneral or local prosecutor could sue to abate apublic nuisance (one that damages a large numberof persons) unless a private individual couldshow “special” damage that was distinct fromand more severe than that suffered by the generalpublic. The private plaintiff with specialdamages had the necessary standing (legallyprotectible interest) to seek injunctive relief. Insome states, the problem of standing has beencorrected through laws that allow a private citizento sue to abate public nuisances such as airpollution, though these laws are by no meansthe norm.Moreover, with the nuisance doctrinethe plaintiff has the burden of showing that theharm she or he has experienced was caused by aparticular defendant. However, since pollutantscan derive from many sources, it can be difficult,if not impossible, to prove that a particular polluteris responsible for a particular problem.Last, nuisance law was useful only to combatparticular polluters; it did not provide an ongoingand systematic mechanism for the regulationand control of pollution.Early in the nineteenth century, a few U.S.cities recognized the shortcomings of commonlawremedies and enacted local laws thatattempted to address the problem of air pollution.Pittsburgh, in 1815, was one of the first toinstitute air quality laws. Others, like Chicagoand Cincinnati, passed smoke control ordinancesin 1881, and by 1912, twenty-three U.S.cities with populations of over two hundred thousand had passed smoke abatement laws. Though the early court cases usuallyaddressed polluted air as an interference withthe enjoyment of property, scientists quickly discovered that air pollution also poses significanthealth and environmental risks. It is believed to contribute to the incidence ofchronic diseases such as emphysema, bronchitis,and other respiratory illnesses and has been linked to higher mortality rates from other diseases,including cancer and heart disease. The shortcomings associated with the common-law remedies to control air pollution andincreasing alarm over the problem’s long-rangeeffects finally resulted in the development ofstate and federal legislation. The first significant legislation concerning air quality was the Air Pollution Control Act, enacted in 1955 (42U.S.C.A. § 7401 et seq. [1955]). Also known asthe Clean Air Act, it gave the Secretary of Health, Education, and Welfare the power to undertake and recommend research programs for air pollution control. Amendments passed during the1960s authorized federal agencies to intervene to help abate interstate pollution in limited circumstances,to control emissions from newmotor vehicles, and to provide some supervisionand enforcement powers to states trying to controlpollution. By the end of the 1960s, when itbecame clear that states had made little progressin combating air pollution, Congress toughenedthe Clean Air Act through a series of new laws,which were known as the Clean Air Act Amendmentsof 1970 (Pub. L. No. 91-604, 84 Stat. 1676[Dec. 31, 1970]).The 1970 amendments greatly increased federalauthority and responsibility for addressingthe problem of air pollution. They provided for,among other things, uniform national emissionsstandards for the hazardous air pollutants mostlikely to cause an increase in mortality or seriousillness. Under the amendments, each state retained some regulatory authority, having “primary responsibility for assuring air qualitywithin the entire geographic area comprising such state.” Thus, states could not “opt out” ofair pollution regulation and for the first time were required to attain certain air quality standards within a specified period of time. In addition, the amendments directed the administrator of the ENVIRONMENTAL PROTECTION AGENCY (EPA), which was also establishedin 1970, to institute national standards regardingambient air quality for air pollutants endangeringpublic health or welfare, in particularsulfur dioxide, carbon monoxide, and photochemicaloxidants in the atmosphere. The EPAwas also granted the authority to require levelsof harmful pollutants to be brought within setstandards before further industrial expansionwould be permitted.Despite the ambitious scope of the 1970 legislation,many of its goals were never attained.As a result, the Clean Air Act was extensivelyrevised again in 1977 (Pub. L. No. 95-95, 91 Stat.685 [Aug. 7, 1977]). One significant component of the 1977 amendments was the formulation of programs designed to inspect, control, and monitor vehicle emissions. The 1977 revisions also sought to regulate parking on the street, discourage automobile use in crowded areas, promote the use of bicycle lanes, and encourage employer-sponsored carpooling. Unlike the goals of several of the 1970 amendments, manyof the 1977 reforms were achieved. Many states,with the help of federal funding, developed programsthat require automobiles to be tested regularlyfor emissions problems before they couldbe licensed and registered. The 1977 amendments also directed the EPA to issue regulationsto reduce “haze” in national parks and otherwilderness areas. Under these regulations theagency sought to improve air quality in a numberof areas, including the Grand Canyon inArizona.During the 1980s and 1990s, several environmentalissues, including acid rain, global climatechange, and the depletion of the ozonelayer, gave rise to further federal regulation. Acidrain, which has caused significant damage toU.S. and Canadian lakes, is created when the sulfurfrom fossil fuels, such as coal, combines withoxygen in the air to create sulfur dioxide, a pollutant.The sulfur dioxide then combines withoxygen to form sulfate, which, when washed outof the air by fog, clouds, mist, or rain, becomesacid rain, with potentially catastrophic effects onvegetation and ground water. Amendments tothe Clean Air Act in 1990 (Pub. L. No. 101-549,104 Stat. 2399 [Nov. 15, 1990]) sought toaddress the challenges posed by acid rain bycommissioning a number of federally sponsoredstudies, including an analysis of Canada’sapproach to dealing with acid rain and an investigationof the use of buffering and neutralizingagents to restore lakes and streams. The 1990laws also directed the EPA to prepare a report onthe feasibility of developing standards related toacid rain that would “protect sensitive and criticallysensitive aquatic and terrestrial resources.”In addition, the amendments provided for acontroversial system of “marketable allowances,”which authorize industries to emit certainamounts of sulfate and which can be transferredto other entities or “banked” for future use.The problem of global climate change islinked to the accumulation of gases, includingcarbon dioxide and methane, in the atmosphere.Scientists have disagreed over the net effect ofthis pollution on the global climate: some haveargued that it produces global warming; othershave maintained that it gradually cools globaltemperatures. Scientists do agree that a sustainedclimate change in either direction couldsignificantly affect the environment.The 1990 amendments implemented a numberof strategies to address changes in the globalclimate, including the commissioning of studieson options for controlling the emission ofmethane. The amendments also contained provisionsto deal with the depletion of the ozonelayer, which shields the earth from the harmfuleffects of the sun’s radiation. Though the longtermconsequences were hard to determine inthe early 2000s, damage had already been seen inthe form of a “hole” in the ozone layer overAntarctica. The destruction of the ozone layerwas believed to be caused by the release into theatmosphere of chlorofluorocarbons (CFCs) andother similar substances. The 1990 laws includeda ban on “nonessential uses” of ozone-depletingchemicals, and the placement of conspicuouswarning labels on certain substances, indicatingthat their use harms public health and the environmentby destroying the ozone in the upperatmosphere.Regulatory interpretation of the Clean AirAct shifted between the late 1990s and early2000s.Under President WILLIAM J. CLINTON, theEnvironmental Protection Agency sought toclose loopholes in the law’s enforcementthrough the New Source Review (NSR) program.Essentially, these rules used an industrialfacility’s age to determine when higher pollutionemissions would require the facility to go through a permit process and install pollutioncontrol equipment. The agency sued some 50companies in an effort to hold them to the highestpollution control standards. But the EPAshifted direction under President GEORGE W.BUSH, who favored less stringent regulations.Initially, the EPA announced a review of the Clinton-era policy, before issuing proposed rulechanges in December 2002 that would relaxrequirements governing pollution levels andmandatory equipment upgrades. Under its socalledClear Skies initiative, the Bush administration proposed issuing individual utilitiespollution credits; these credits would allow the utility to lawfully generate a fixed amount ofpollution, and if unused, any remaining credits could be sold to other utilities exceeding theirpermitted limit. Environmentalists criticized the proposals for gutting protections, while industryembraced them as flexible cost-savings measures.In the 1990s, the battle to control air pollutionmoved indoors, into homes and businesses. Studies showed that people are exposed tohigher concentrations of air pollution for longerperiods of time inside buildings than out-ofdoors.Furthermore, evidence indicated that thisexposure was contributing to a rapidly increasingincidence of illness, thus costing businesses,taxpayers, and the government billions of dollarsin HEALTHCARE costs and lost work time.The typical U.S. home contains many hazardouschemicals and substances, including radon,which has been linked to lung cancer and otherailments. Congress responded to public concernabout indoor air quality by requiring the EPA,with the Superfund Amendments and ReauthorizationAct (SARA), to establish a program tostudy the problem and make appropriate recommendations(Superfund Amendments andReauthorization Act of 1986, Pub. L.No. 99-499,100 Stat. 1613 [codified as amended in scatteredsections of 10 U.S.C.A., 26 U.S.C.A., 29U.S.C.A., 33 U.S.C.A., and 42 U.S.C.A.]).One contentious air pollution issue continuedto be the effect of smoking in public places,especially as it concerns the rights and health ofnonsmokers. Many states have enacted legislationdesigned to protect nonsmokers in publicplaces, and the battle between smokers and nonsmokersmade its way into the courts. Anincreasing number of restaurants, airlines, andother public facilities dealt with the problem bybanning smoking completely.While the trend has been toward adoption ofsmoking bans in the 2000s, advocates and opponentshave fought pitched battles. Advocatespoint to successes such as stringent statewidebans in New York, California, and Delaware,along with an estimated 400 bans in cities suchas Boston and Dallas, according to the AmericanNonsmokers’ Rights Foundation. They alsocited evidence presented at the American Collegeof Cardiology’s annual meeting in 2002showing that the city of Helena, Montana,enjoyed dramatically reduced heart attack ratesthe year following enactment of its ban. Ironically,enforcement was subsequently haltedwhile a court battle was waged over the ban.Opposition to indoor smoking bans hascome from the bar, restaurant and tobaccoindustries. Commercial groups argue that bansresult in revenue loss, burdensome complianceregulation, and even a diminished labor force.They have achieved some success. Some citycouncils rejected proposed ordinances afterheavy LOBBYING, such as in Eden Prairie, Minnesota,in 2002, and the city of Pueblo, Colorado,was forced to suspend its ordinancesfollowing a successful public signature drivecalling for a public REFERENDUM in 2003.

FURTHER READINGS

Jackson, Ted. 2003. “Activists Fret President’s Plan HurtsEffort on FPL Emissions.”Palm Beach Post (February 28).Menell, Peter S., ed. 2002. Environmental Law. Aldershot,England; Burlington, Vt.: Ashgate/Dartmouth.Rodgers, William H., Jr. 1986. Environmental Law: Air andWater. Vol. 2. St. Paul,Minn.:West.Stagg, Michael K. 2001. “The EPA’s New Source ReviewEnforcement Actions: Will They Proceed?” Trends 33(November-December).

CROSS-REFERENCES

Automobiles; Environmental Law; Environmental ProtectionAgency; Pollution; Surgeon General; Tobacco.