Environmental Engineering FOURTH EDITION

Air Pollution Law 413

and property rights is based on actual invasion of the property. Property law is founded

on ancient actions between land owners and involves such considerations as property

damage and trespassing. A plaintiff basing a case on property law takes chances, rolls

the dice, and hopes the court will rule favorably as it balances social utility against

individual property rights.

Nuisance is the most widely used form of common law action concerning the

environment. Public nuisance involves unreasonable interference with a right, such

as the “right to clean air,” common to the general public. A public official must bring

the case to the courtroom and represent the public that is harmed by the air pollution.

Private nuisance, on the other hand, is based on unreasonable interference with the

use and enjoyment of private property. The key to a nuisance action is how the courts

define “unreasonable” interference. Based on precedents and the arguments of the

parties involved, the common law court balances the equities, hardships, and injuries

in the particular case, and rules in favor of either the plaintiff or the defendant.

Trespass is closely related to the theory of nuisance. The major difference is that

some physical invasion, no matter how minor, is technically a trespass. Recall that

nuisance theory demands an unreasonable interference with land and the outcome of a

particular case depends on how a court defines “unreasonable.” Trespass is relatively

uncomplicated. Examples of trespass include physical walks, vibrations from nearby

surface or subsurface strata, and possibly gases and microscopic particles flowing from

an individual smoke stack.

In conclusion, common law has generally proven inadequate in dealing with prob-

lems of air pollution. The strict burdens of proof required in the courtroom often result

in decisions that favor the defendant and lead to smoke stacks that continue to pollute

the atmosphere. Additionally, the technicality and complexity of individual cases often

limit the ability of a court to act; complicated tests and hard-to-find experts often leave

a court and a plaintiff with their hands tied. Furthermore, the absence of standing in a

common law courtroom often prevents private individuals from bringing a case before

the judge and jury unless the individual actually suffered material or bodily harm from

the air pollution.

One key aspect of these common law principles is their degree of variation. Each

state has its own body of common law, and individuals relying on the court system

are generally confined to using the common laws of the applicable state. Given the

shortcomings inherent in common law, Congress adopted a federal Clean Air Act.

STATUTORY LAW

Federal statutory law controlling air pollution began with the 1963 and 1967 Clean Air
Acts. Although these laws provided broad clean air goals and research money, they
did not apply air pollution controls throughout the entire United States, but only in
particularly dirty communities. In 1970 the Clean Air Act was amended to cover the
entire United States, and the U.S. Environmental Protection Agency (EPA) was created
to promulgate clean air regulations and to enforce the Act. In 1977, provisions were
added to the Clean Air Act to protect very clean areas (“protection against significant
deterioration”), to enforce against areas that were not in compliance, and to extend the