Clean Air Act turns 50

Dan Farber recently posted on the subject at Legal Planet. Here's part of what he had to say:

No doubt we could design a more effective and efficient regulatory scheme if we were start over. But the Clean Air Act has nonetheless had a major impact.  Here’s what EPA has to say on the subject  — and remember, this is from the Trump EPA, which is no fan of regulation:

• Experience with the Clean Air Act since 1970 has shown that protecting public health and building the economy can go hand in hand.

• Clean Air Act programs have lowered levels of six common pollutants — particles, ozone, lead, carbon monoxide, nitrogen dioxide and sulfur dioxide — as well as numerous toxic pollutants.

• From 1970 to 2017, aggregate national emissions of the six common pollutants alone dropped an average of 73 percent while gross domestic product grew by 324 percent. This progress reflects efforts by state, local and tribal governments; EPA; private sector companies; environmental groups and others.

• The emissions reductions have led to dramatic improvements in the quality of the air that we breathe. Between 1990 and 2017, national concentrations of air pollutants improved over 75% for lead, carbon monoxide, and sulfur dioxide; 56% for nitrogen dioxide (annual); and 22% for ozone. Particulate concentrations improved more than a third between 2000, when trends data begins for ultra-fine particles, and 2015.

For more on the history of the Act, see here. 

Tension between public health and environmental protection

The latest issue of the Journal of Environmental Law has an interesting piece by Ben Pontin, "The Constitutive Tension Between Public Health and Environmental Protection—An Historical Perspective". Pontin writes (footnotes omitted):

According to David Hughes, the author of an early formative textbook, environmental law has ‘public health origins’. That is to say, many current regulatory bodies and laws are rooted in the sanitary boards created and statutes drafted during industrialisation to address cholera, typhus and other diseases then associated with urban life. Hughes makes the important point that environmental regulation has borrowed from public health regulation above all in the form of the use of criminal law as a tool of prevention of harm, rather than sanctioning of individual wrongdoing.

It is true that the laws and institutions of public health burgeoned during industrialisation, and that they defined progress at this time. Thus one of the most ‘progressive’ Victorian-era administrations—that of Benjamin Disraeli between 1874 and 1880—was elected on a manifesto echoing Cicero’s maxim salus populi sumprema lex esto (the health of the people is the highest law). This administration put on the statute book the Public Health Act 1875, which heralded a significant shift ‘towards a more modern, collectivist approach to public health’. Under the umbrella of Cicero’s maxim was also enacted legislation controlling air and river pollution.

Yet environmental legislation in and around this period has an autonomy in relation to public health that is not fully captured by Professor Hughes’ characterisation. For instance, whereas public health campaigners seeking the creation of a robust nationwide legal response to disease encountered obstacles in an age of ‘laissez faire’, those defending ‘nature’ found legislation easier to secure. An example is the protection of rural vegetation from chemical factories under the Alkali Act 1863, by means of a centralised, criminal administrative regulatory regime. Public health campaigners in respect of urban peoples were less easily heard within the law-making institutions than the elite proprietors of country estates, safeguarding trees, hedges and meadows. 

Charles Tennant's St. Rollox Chemical Works in 1831

Climate change and the US Clean Air Act

President Nixon signs the Clean Air Act of 1970

Richard Revesz recently posted a piece on climate change regulation, "Bostock and the End of the Climate Change Double Standard", forthcoming in the Columbia Journal of Environmental Law. The abstract explains that the article "performs a deep dive into the legislative materials surrounding the enactment of the Clean Air Act of 1970. After uncovering a treasure trove of sources that had not previously been part of the public discourse, it shows how, under the interpretative approach of each of the three opinions [in the US Supreme Court decision of Bostock v. Clayton County (2020)], greenhouse gases are unquestionably pollutants for the purposes of the Clean Air Act."

The article goes on to argue that

Despite the abundance of legislative history demonstrating Congress’ awareness of and concern about climate change, much of the evidence was not brought to bear in arguments in support of the Act’s authority to regulate greenhouse gases.... The analysis of the legislative history undertaken here, therefore, is largely new to the dialogue surrounding the Clean Air Act’s authority to regulate greenhouse gases, and provides considerable evidence of the scope of Congress’ awareness of issues involving global climate change preceding at the time of the passage of the Act.

*****

Despite the lack of virtually any discourse surrounding the references to climate change in the legislative history of the Clean Air Act of 1970, the legislative materials... provide considerable evidence that Congress understood and was concerned about issues surrounding climate change during the time of the Act’s debate and passing. 

The article goes on to detail the many statements and reports regarding climate change in general and global warming in particular that were part of the legislative history of the 1970 Clean Air Act Amendments.