- 8:30 AM

Development of Air Pollution Law Over the Past 100 Years

Mary Ellen Ternes, McAfee & Taft, 10th Floor, Two Leadership Square, Oklahoma City, OK 73102-7103 and Lee Paddock, The George Washington University Law School, 2000 H Street, NW, Suite E-101, Washington, DC 20052.

Air pollution, along with other pollution, has historically followed industrial growth. In the late nineteenth century, air pollution was a serious local problem arising in many industrial settings in the United States. Before legislation had been adopted to specifically address air pollution, the courts utilized common law causes of action such as "public nuisance" to resolve claims of damage to human health and the environment. The 1907 U.S. Supreme Court decision Georgia v. Tennessee Copper Co. was just such a case, where the Court enjoined Tennessee Copper Companies from generating further sulphur dioxide emissions from roasted ore in open heaps which Georgia alleged to have caused a "wholesale destruction of forests, orchards and crops" in Georgia. With this case, the U.S. Supreme Court enjoined continuing pollution by a private party at the request of a State based upon an injury to the State in its capacity as a quasi-sovereign. The resulting body of caselaw, as well as the law of private nuisance, preceded the first federal statute related to air pollution, the 1955 Air Pollution Control Act, which did little more than provide a budget to study the causes and effects of air pollution. Air regulation was again attempted with the Clean Air Act of 1963 which provided the government with a mechanism to convene conferences with state and local authorities in order to develope bases for federal abatement actions and a cease and desist order. However, the 1963 Act resulted in only one enforcement action. The first direct regulation of air pollution was adopted in 1965, with the Motor Vehicle Air Pollution Control Act, followed by the Air Quality Act of 1967. But it was the Clean Air Act of 1970 that finally changed the priorities, emphasis and approach of federal air pollution regulation.

This presentation will provide a history of common law and legislation and the United States experience with this authority which provides the bases for the current approach to air pollution control legislation and regulation. Attendees should expect to gain a better understanding and appreciation of the rational supporting current law and policy in this complicated area of environmental regulation.