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

Preface 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