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 were allowed to continue.

Using a nuisance action to control widespread air pollution proved inadequate in other ways as well. At COMMON LAW, only the attorney general or local prosecutor could sue to abate a public nuisance (one that damages a large number of persons) unless a private individual could show "special" damage that was distinct from and more severe than that suffered by the general public. The private plaintiff with special damages had the necessary standing (legally protectible interest) to seek injunctive relief. In some states, the problem of standing has been corrected through laws that allow a private citizen to sue to abate public nuisances such as air pollution, though these laws are by no means the norm. Moreover, with the nuisance doctrine the plaintiff has the burden of showing that the harm she or he has experienced was caused by a particular defendant. However, since pollutants can derive from many sources, it can be difficult, if not impossible, to prove that a particular polluter is responsible for a particular problem. Last, nuisance law was useful only to combat particular polluters; it did not provide an ongoing and systematic mechanism for the regulation and control of pollution.

Early in the nineteenth century, a few U.S. cities recognized the shortcomings of common-law remedies and enacted local laws that attempted to address the problem of air pollution. Pittsburgh, in 1815, was one of the first to institute air quality laws. Others, like Chicago and Cincinnati, passed smoke control ordinances in 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 usually addressed polluted air as an interference with the enjoyment of property, scientists quickly discovered that air pollution also poses significant health and environmental risks. It is believed to contribute to the incidence of chronic 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 and increasing alarm over the problem's long-range effects finally resulted in the development of state and federal legislation. The first significant legislation concerning air quality was the Air Pollution Control Act, enacted in 1955 (42 U.S.C.A. § 7401 et seq. [1955]). Also known as the 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 the 1960s authorized federal agencies to intervene to help abate interstate pollution in limited circumstances, to control emissions from new motor vehicles, and to provide some supervision and enforcement powers to states trying to control pollution. By the end of the 1960s, when it became clear that states had made little progress in combating air pollution, Congress toughened the Clean Air Act through a series of new laws, which were known as the Clean Air Act Amendments of 1970 (Pub. L. No. 91-604, 84 Stat. 1676 [Dec. 31, 1970]).

The 1970 amendments greatly increased federal authority and responsibility for addressing the problem of air pollution. They provided for, among other things, uniform national emissions standards for the hazardous air pollutants most likely to cause an increase in mortality or serious illness. Under the amendments, each state retained some regulatory authority, having "primary responsibility for assuring air quality within the entire geographic area comprising such state." Thus, states could not "opt out" of air 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 established in 1970, to institute national standards regarding ambient air quality for air pollutants endangering public health or welfare, in particular sulfur dioxide, carbon monoxide, and photo-chemical oxidants in the atmosphere. The EPA was also granted the authority to require levels of harmful pollutants to be brought within set standards before further industrial expansion would 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 extensively revised 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, many of the 1977 reforms were achieved. Many states, with the help of federal funding, developed programs that require automobiles to be tested regularly for emissions problems before they could be licensed and registered. The 1977 amendments

Air pollution obscures the skyline of Houston, Texas, in August 1995.
AP/WIDE WORLD PHOTOS

also directed the EPA to issue regulations to reduce "haze" in national parks and other wilderness areas. Under these regulations the agency sought to improve air quality in a number of areas, including the Grand Canyon in Arizona.

During the 1980s and 1990s, several environmental issues, including acid rain, global climate change, and the depletion of the ozone layer, gave rise to further federal regulation. Acid rain, which has caused significant damage to U.S. and Canadian lakes, is created when the sulfur from fossil fuels, such as coal, combines with oxygen in the air to create sulfur dioxide, a pollutant. The sulfur dioxide then combines with oxygen to form sulfate, which, when washed out of the air by fog, clouds, mist, or rain, becomes acid rain, with potentially catastrophic effects on vegetation and ground water. Amendments to the Clean Air Act in 1990 (Pub. L. No. 101-549, 104 Stat. 2399 [Nov. 15, 1990]) sought to address the challenges posed by acid rain by commissioning a number of federally sponsored studies, including an analysis of Canada's approach to dealing with acid rain and an investigation of the use of buffering and neutralizing agents to restore lakes and streams. The 1990 laws also directed the EPA to prepare a report on the feasibility of developing standards related to acid rain that would "protect sensitive and critically sensitive aquatic and terrestrial resources." In addition, the amendments provided for a controversial system of "marketable allowances," which authorize industries to emit certain amounts of sulfate and which can be transferred to other entities or "banked" for future use.

The problem of global climate change is linked to the accumulation of gases, including carbon dioxide and methane, in the atmosphere. Scientists have disagreed over the net effect of this pollution on the global climate: some have argued that it produces global warming; others have maintained that it gradually cools global temperatures. Scientists do agree that a sustained climate change in either direction could significantly affect the environment.

The 1990 amendments implemented a number of strategies to address changes in the global climate, including the commissioning of studies on options for controlling the emission of methane. The amendments also contained provisions to deal with the depletion of the ozone layer, which shields the earth from the harmful effects of the sun's radiation. Though the long-term consequences were hard to determine in the early 2000s, damage had already been seen in the form of a "hole" in the ozone layer over Antarctica. The destruction of the ozone layer was believed to be caused by the release into the atmosphere of chlorofluorocarbons (CFCs) and other similar substances. The 1990 laws included a ban on "nonessential uses" of ozone-depleting chemicals, and the placement of conspicuous warning labels on certain substances, indicating that their use harms public health and the environment by destroying the ozone in the upper atmosphere.

Regulatory interpretation of the Clean Air Act shifted between the late 1990s and early 2000s. Under President WILLIAM J. CLINTON, the Environmental Protection Agency sought to close loopholes in the law's enforcement through the New Source Review (NSR) program. Essentially, these rules used an industrial facility's age to determine when higher pollution emissions would require the facility to go through a permit process and install pollution control equipment. The agency sued some 50 companies in an effort to hold them to the highest pollution control standards. But the EPA shifted 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 rule changes in December 2002 that would relax requirements governing pollution levels and mandatory equipment upgrades. Under its socalled Clear Skies initiative, the Bush administration proposed issuing individual utilities pollution credits; these credits would allow the utility to lawfully generate a fixed amount of pollution, and if unused, any remaining credits could be sold to other utilities exceeding their permitted limit. Environmentalists criticized the proposals for gutting protections, while industry embraced them as flexible cost-savings measures.

In the 1990s, the battle to control air pollution moved indoors, into homes and businesses. Studies showed that people are exposed to higher concentrations of air pollution for longer periods of time inside buildings than out-ofdoors. Furthermore, evidence indicated that this exposure was contributing to a rapidly increasing incidence of illness, thus costing businesses, taxpayers, and the government billions of dollars in HEALTHCARE costs and lost work time. The typical U.S. home contains many hazardous chemicals and substances, including radon, which has been linked to lung cancer and other ailments. Congress responded to public concern about indoor air quality by requiring the EPA, with the Superfund Amendments and Reauthorization Act (SARA), to establish a program to study the problem and make appropriate recommendations (Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 [codified as amended in scattered sections 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 continued to be the effect of smoking in public places, especially as it concerns the rights and health of nonsmokers. Many states have enacted legislation designed to protect nonsmokers in public places, and the battle between smokers and nonsmokers made its way into the courts. An increasing number of restaurants, airlines, and other public facilities dealt with the problem by banning smoking completely.

While the trend has been toward adoption of smoking bans in the 2000s, advocates and opponents have fought pitched battles. Advocates point to successes such as stringent statewide bans in New York, California, and Delaware, along with an estimated 400 bans in cities such as Boston and Dallas, according to the American Nonsmokers' Rights Foundation. They also cited evidence presented at the American College of Cardiology's annual meeting in 2002 showing that the city of Helena, Montana, enjoyed dramatically reduced heart attack rates the year following enactment of its ban. Ironically, enforcement was subsequently halted while a court battle was waged over the ban.

Opposition to indoor smoking bans has come from the bar, restaurant and tobacco industries. Commercial groups argue that bans result in revenue loss, burdensome compliance regulation, and even a diminished labor force. They have achieved some success. Some city councils rejected proposed ordinances after heavy LOBBYING, such as in Eden Prairie, Minnesota, in 2002, and the city of Pueblo, Colorado, was forced to suspend its ordinances following a successful public signature drive calling for a public REFERENDUM in 2003.