Chasing the Wind (ebook)

Argumento de Chasing the Wind (ebook)

"[Noga Morag-Levine] presents one of the first book-length studies of legislative failure that ascribes such a failure to conceptual, rather than political, causes. . . . Chasing the Wind is an important study of the Clean Air Act, with a great deal of information about the origins of the Act, its performance, and alternative approaches that might lead to greater success."--Edward Rubin, Law and Social Inquiry

"This work is highly recommended for all interested in the vital problems associated with Air Pollution, both in the USA and globally; it is reader friendly and is suitable reading material for both students and officials in government industry. . . . [I]t is very realistically priced, especially for hard cover."--Mervyn Richardson, International Journal of Environmental Studies

"This work is highly recommended for all interested in the vital problems associated with air pollution, both in the USA and globally; it is reader friendly and is suitable reading material for both students and officials in government and industry."--Mervyn Richardson, International Journal of Environmental Studies

"In her scholarly and fascinating book, Morag-Levine mounts a strong challenge against the orthodox view that [the Clean Air Act 1970] marked a great advance in the history of pollution abatement and asserts that the Act has failed to fulfill these initial promises. . . . The great strength of this book is its reliance upon historical and political sources in addition to legal ones; this provides insights and nuggets of historical detail which could not be gained through a strictly legal analysis of the materials. . . . [T]here can be no clearer exposition of the manner in which domestic legal traditions combined with social, economic, political and historic factors serve to mould regulatory responses to pollution."--Mark Wilde, Journal of Environmental Law

"No other book so thoroughly weaves together themes in common-law nuisance, federal pollution legislation, local pollution control, and even constitutional law. Morag-Levine manages to tell a story about how all of these various strands fit together that is at once persuasive and interesting, not to mention carefully documented and painstakingly argued. I learned a great deal reading this book, and I will think differently about the field of air pollution control as a consequence."--Lisa Heinzerling, Georgetown University

"An exceptionally thoughtful study of air pollution regulation, Chasing the Wind provides a magisterial account of the tensions embedded within American environmental law and their historical roots. Noga Morag Levine shows us that the present state of environmental regulation is much more a creature of the distant, common law past than has generally been acknowledged. This is both a surprising and important argument."--Cary Coglianese, Harvard University

"In this impressive review of the history of air pollution control law, Noga Morag-Levine traces the roots of current tensions between common law and precautionary approaches to regulation.... Chasing the Wind combines a remarkable blend of legal history, comparative law, and political theory that is presented with unfailing clarity and balance. . . . [A] major work of scholarship that should be essential reading for anyone seeking to understand this complex field."--Robert V. Percival, Law and Politics Book Review

"The author carefully uses several centuries of legal cases and a sharp sense of comparison between U.S. and European regulatory and control regimes to provide the reader with a broad canvas of air pollution control history and to expose the weaknesses of different approaches. . . . This book is recommended for anyone concerned with regulatory policy and will help to give a broader and more historical perspective to today's decision makers."--Christopher Hansen, Journal of Energy Literature0Preface ix
Acknowledgments xiii
List of Abbreviations xv
Introduction 1
CHAPTER ONE
Regulating Air Pollution: Risk-and Technology-Based Paradigms 9
A Rights Revolution? Risk and BAT in the Clean Air Act 13
The 1970 Clean Air Act: Regulatory Options 15
The 1970 Clean Air Act: Regulatory Implementation 17
Risk, Courts, and the EPA 22
Risk versus BAT: The Policy Debate 24
CHAPTER TWO
"Command and Control": Means, Ends, and
Democratic Regulation 27
Means, Ends, and Democratic Regulation 28
Means, Ends, and Lochner 30
Between Lochner and Industrial Union (the Benzene Case) 32
CHAPTER THREE
Regulating "Noxious Vapours": From Aldred's Case to the Alkali Act 39
Sic Utere: Absolute Liability as a Separation Regime 40
Controlling Noxious Vapors from Copper and Alkali Works in Nineteenth-Century Britain: Technological and Evidentiary Barriers 47
Absolute Liability and "Trifling Inconvenience": The Road to the St. Helen's Regime 52
The Alkali Act Regime 56
CHAPTER FOUR
On the "Police State" and the "Common LawState" 63
"Lochner Revisionism" and American Exceptionalism 64
The "Police State" and the "Common Law State" 67
Nuisance Law and Public Health Administration 71
Between Nuisance and Substantive Due Process 74
Administration, Delegation, and the Rule of Law 79
On the "Absolutism of a Democratic Majority" 82
CHAPTER FIVE
From Richards's Appeal to Boomer: Judicial Responses to Air Pollution, 1869-1970 86
Richards's Appeal (1868): Injunction or Damages? 88
Huckenstine's Appeal (1872): Neither Injunction nor Damages 91
Pennsylvania Lead Company (1881) and Evans v. Reading Chemical Fertilizing Co.(1894): Injunctive Relief and Out-of-Place Industrial Facilities 92
Versailles Borough (1935) and Waschak v. Moffat (1954): "One Who Voluntarily Goes to War ..." 94
Sullivan v. Jones & Laughlin Steel Co.(1904): BAT Injunctions 98
CHAPTER SIX
"Inspected Smoke": The Perpetual Mobilization Regime 103
English Antismoke Efforts Prior to 1880 105
Smoke in America: 1881-1948 109
Smoke Abatement and the Police Power 112
Perpetual Mobilization and Nuisance Per Se 115
Beyond Smoke 122
CHAPTER SEVEN
"Odors," Nuisance, and the Clean Air Act 124
An Emergent Air-Pollution Regime: 1947-55 124
The Problem of "Odors" 128
Odors and Nuisance Law 130
"Odors" and the Road to the CAA 133
Odors and the EPA: 1970-92 135
CHAPTER EIGHT
Regulating "Odors": The Case of Foundries 143
Foundries: Process, Pollution, and Control Technology 144
New Haven, Michigan 148
Berkeley, California 153
Tempe, Arizona 161
Skokie, Illinois 166
Evidentiary Burdens and Perpetual Mobilization 173
CHAPTER NINE
Conclusion 179
Notes 189
Cases Cited 233
Selected Bibilography 235
Index 249