The Clean Air Act (CAA) of 1970 (with major amendments in 1977 and 1990) set forth many of the regulations we know today in the air pollution control industry. Signed into law alongside the National Environmental Policy Act (the law creating the Environmental Protection Agency), this bill was the first of its kind to establish the United States Federal Government’s role in controlling air pollution from organizations.
However, attempts to stave off air pollution date back much longer than that. In fact, there have been complaints about, litigation against, and even regulations to control pollution dating back to the move from B.C. to A.D. Today, we explore the first 2000 years of pollution control leading up to the push in the United States for Federal control and regulation.
The Roman Empire and Air Quality
A great deal of our legal system traces back to the Roman Empire, and the basis of mitigating air pollution is no different. In ancient Rome, laws existed to allow land transactions to be terminated as a result of “pestelentia (unhealthy, malodorous air).”
One of the first known examples of litigation pertaining to air quality occurred around 2,000 years ago. In this, jurist Aristo stated in an opinion given to Cerellius Vitalis (plaintiff) that a neighboring cheese shop cannot lawfully discharge smoke into Cerellius Vitalis’ upstairs property.
By AD 535, Justinian proclaimed the air, water, and sea as birthright in his 6th Century judicial reforms.
1300s: Edward ! Bans “Sea-Coal”
Fast-forward nearly 800 years, and you will see the next major fight for cleaner air. Throughout the 13th and 14th Centuries, London was rapidly expanding. Trees became scarce, wood became expensive, and another resource found popularity in furnaces: coal. Abundant, easy to find, and full of sulfur, London took to coal despite the thick smoke it created.
London burned more and more coal, which in turn combined with the naturally dense fog that pervades the area to create a nightmare scenario in which the city would be blacked out for days.
In 1306, King Edward I issued a ban on the burning of sea coal, marking the first ban on a substance known to produce adverse health effects. Although the ban was ultimately ignored by the population despite the threat of fines, furnace destruction, or death, it was the first of its kind.
England, 1610: Aldred’s Case
Move forward 300 years, and while coal bans in London were still ignored, a case regarding a pig sty established the basis for environmental tort law disputes. This case set precedent for the definition of nuisance and was used in a large number of cases in the United States and England.
Torts, Trespasses, and Nuisances: Pollution Control by Litigation
Life, Liberty and Property/Pursuit of Happiness. By any metric, air pollution had negative impacts on each. By this reasoning, air pollution was fought with litigation.
As much of the American legal system was built from English Common Law, citizens could take polluters to court for damage to property rights, with litigation under common law, either as a private nuisance, a public nuisance, or a trespass.
Problems with the Common Law Approach to Fighting Air Pollution
Unfortunately, while litigation was slightly more promising in water and land rights, fights over air pollutants and all-inclusive “smoke” proved more complex for the following, among other reasons:
- The nature of air and air pollution (multiple sources of emissions).
- Judicial hostility to lawsuits against polluters.
- Powerful defenses for polluters and short statute of limitations.
Few cases made it to court and fewer resulted in a win for plaintiffs until the early part of the 20th Century (Georgia vs. Tennessee Copper Company, which was not settled until 1915, was an early case emission reduction and recordkeeping requirements).
A Push for Regulation Begins in the 19th Century
While there were attempts around the world to cut pollution, early laws put in place in the US, Britain, and Germany had little bearing on pollution. Throughout the 19th Century, citizen groups and local governments began to push for controls, starting in Britain and moving to the US.
19th Century Citizen Groups Arise to Fight Air Pollution
Throughout the 19th Century, citizen groups emerged around the world, starting with the Committee for the Consumption of Smoke at Leeds and the Manchester Association for the Prevention of Smoke in 1842 and additional campaigns hitting the United States in pursuant decades.
Local Governments Work to Limit “Smoke”
As citizens in industrialized cities began to push for regulation, these cities began to take note. In 1881, Chicago passed the first municipal smoke abatement ordinance, with other Midwestern towns including Cincinnati, Cleveland, Pittsburgh, St. Louis, and St. Paul enacting public nuisance laws to deter smoke emissions shortly thereafter. By 1912, nearly every major city had enacted smoke abatement laws, but many were invalidated by hostile courts.
The Proof is in the Science
By the turn of the 20th Century, citizens’ groups, the medical community, and engineers pushed for more control of pollution and funding for pollution research, leading to more informed fights against pollutants, particulate matter and more. Early efforts resulted in the creation of “smoke inspector” positions, but these positions were filled by engineers who were more focused on efficiency than smoke abatement.
These efforts were derailed by World War I, the Roaring 20s, the Great Depression, and World War II. By time WWII had passed, the move away from coal had already begun, but a population and economic boom in the 1950s created new problems. States and locales had begun to make progress, with Los Angeles taking measures to control photochemical smog in the 1940s and the first state-level air pollution law passed in Oregon in 1952.
Conclusion: Protect the People, Protect Your Company
We will discuss Federal legislative and regulatory efforts in the 1950s, 60s and beyond upcoming blog on the background and passage of the Clean Air Act.
However, know this: The things that protected companies in the 19th and 20th Century have completely reversed. Courts are very sympathetic to the plaintiff in pollution cases, technology exists to prove which stationary source has created the effect, and the barriers to filing suit against a polluter are much lower.
No matter your opinions on the regulatory environment that exists today, protecting the community from hazardous air pollutants is both legally and financially astute. Learn more about HAP and VOC Abatement Tactics and Strategies, success stories, and tools used to fight pollution by contacting The CMM Group.
