Chasing the Wind: Regulating Air Pollution in the Common Law State

by Noga Morag-Levine

The Federal Clean Air Act of 1970 is widely seen as a revolutionary legal response to the failures of the earlier common law regime, which had governed air pollution in the United States for more than a century. Noga Morag-Levine challenges this view, highlighting striking continuities between the assumptions governing current air pollution regulation in the United States and the principles that had guided the earlier nuisance regime. Most importantly, this continuity is evident in the centrality of risk-based standards within contemporary American air pollution regulatory policy. Under the European approach, by contrast, the feasibility-based technology standard is the regulatory instrument of choice.


Through historical analysis of the evolution of Anglo-American air pollution law and contemporary case studies of localized pollution disputes, Chasing the Wind argues for an overhaul in U.S. air pollution policy. This reform, following the European model, would forgo the unrealizable promise of complete, perfectly tailored protection--a hallmark of both nuisance law and the Clean Air Act--in favor of incremental, across-the-board pollution reductions. The author argues that prevailing critiques of technology standards as inefficient and undemocratic instruments of "command and control" fit with a longstanding pattern of American suspicion of civil law modeled interventions. This distrust, she concludes, has impeded the development of environmental regulation that would be less adversarial in process and more equitable in outcome.

264 pages, Hardcover

First published January 1, 2003

Reviews

[Jess · Rating 5 out of 5]

reading this in advance of the semester in case I don't have time once classes start lol. Anyways, great book. Felt like I learned so much, from what a nuisance regime is to common law to how regulation of air pollution functions. Much of my work has been within academia/some government, and to understand the historical context of air pollution in the US and across other countries sheds light on the regulatory limitations, the competing political and economic forces, and the immense challenges faced in multiple cases within the US to address pollution.

[Jennifer · Rating 5 out of 5]

I had the rare privelege of serving as a teaching assistant and research assistant under Noga during law school at Michigan State University, where she serves as an Associate Professor of Environmental Law. Noga's book is a wonderful insight into the application of the US Clean Air Act, and should be read, understood, and remembered by all practitioners within the field, both on the lobbyist and corporate law side.