"Legal protection: A Primer on Air Pollution protection"

One of the most important things we can do to clean up the air we breathe is to pass and enforce laws to stop pollution. Luckily, the United States has no shortage of lawyers and consequently some of the best pollution laws in the world. But laws work best when we understand them, know our rights, and are able to point out illegal activity. Does that mean you should spend next weekend in the library trying to read the thousands of pages of air pollution laws in the United States? Yes. Yes it does. But since most of us have more pressing things to do with our time, we have provided a summary of the most important clean air laws here. This way you can stay informed, and still do something more interesting with your weekend, like studying the works of Nobel Prize winning German physicist Max Karl Ernst Ludwig Planck (1858-1947).

Concern about air pollution reaches back centuries--from the times when neighbors worried about the stench of adjacent farm animals and how that affected enjoyment of their property28 to more recent days when one state worried about an adjoining state's copper smelting operation and its negative impact on forest preserves.29 Before the Clean Air Act (CAA) was established in 1970, however, air pollution control was largely based on nuisance laws and local and state air regulations. The CAA represented the first federal regulatory statute on air pollution. The Clean Air Act Amendments of 1990 are said to be the most far-reaching environmental legislation in history, not to mention some of the most controversial. This section will give an overview of the CAA and the amendments made to it in 1977 and 1990.

CAA established comprehensive sets of measures to control outdoor air pollution. When enacted in 1963, it called for federal support for air pollution research as well as assistance to states willing to develop their own pollution control agencies.30 The amendments made to the CAA in 1970 almost made it an entirely different act, and therefore 1970 is generally thought of as the year CAA was enacted. The following are some of the major provisions encompassed within the Act as it now stands31:

• Section 108 -- requires the Environmental Protection Agency (EPA) to identify "air pollutants" which may endanger public health and to publish air quality criteria.
• Section 109 -- requires the EPA to adopt national ambient air quality standards (NAAQS).
• Section 110 -- requires states to submit to the EPA state implementation plans (SIP) in which they propose how to make their state be in compliance with NAAQS.

• Requires the EPA to establish national emissions standards for cars and light trucks. Essentially this title addresses controls on mobile sources.

• Section 304 -- gives citizens the right to bring to court violators of emissions standards.
• Section 319 -- requires that standardized air quality monitors be established throughout the country.

• Creates a system of marketable allowances for sulfur dioxide emissions from power plants and major industrial sources. Calls for control programs for air pollutants which cause acid rain.

• Requires permits for all major industrial sources with state administration and federal oversight. The permitting system helps to keep in check the distribution of major pollutants.

• Establishes a program for controlling substances that contribute to depletion of stratosphere, the protective ozone layer.

• Contains provisions for citizen and government enforcement of the Clean Air Act.

The following is a short summary of the history of U.S. federal legislation concerning air pollution:

1955 -- Air Pollution Control Act was established which stated the necessity of providing research and technical assistance to the Secretary of Housing, Education, and Welfare (HEW) to study the causes and effects of air pollution.32

1963 -- The enactment of the Clean Air Act created the first federal regulation of air pollution. The Act ordered the Secretary of HEW to define air quality criteria and convene interstate conferences concerning health and welfare of citizens with respect to air pollution.

1965 -- Motor Vehicle Air Pollution Control Act was created to establish automobile emissions standards.

1967 -- Air Quality Act was created to define "air quality control regions", and create state commissions on air pollution.

1970 -- First set of amendments to the Clean Air Act and first comprehensive national regulation standards. These amendments created the basic program for controlling air pollution that we live by today.

1977 -- Of the amendments that were instituted in 1977, one of the most important was the establishment of statutory separation of the country into areas that were not yet achieving the NAAQS goal, which were to be labeled "non-attainment areas", and those areas where air quality was better then NAAQS.33 Areas of non-attainment now have to impose strict limitations on construction of new or modified sources that would affect air quality.

1990 -- The amendments enacted in 1990 made changes to the non-attainment provisions and the design of the hazardous air pollutants program, as well as adjusting mobile source standards.34 Additionally, the amendments focused on incentive-based regulatory techniques such as permit trading, and having clean fuel programs.

State laws regarding clean air for the most part reiterate the federal mandate and create plans to actually implement regulations. For more in-depth knowledge of what your particular state's air laws are, visit the state branch of the EPA on the web.

While the CAA is the primary regulation for which air pollution is controlled within the United States, there are several international protocols dealing with the condition of the air. It is important to review these protocols to get a better understanding of the global legislative processes that affect air quality.

1987 -- The Montreal Protocol on Substances that Deplete the Ozone Layer was held. The protocol called for stopping the production and consumption of chlorofluorocarbons (CFCs) at 1986 levels and reducing their use in industries by 50% for the following 10 years. The concern about CFCs is that they contribute to the depletion of the protective ozone layer that is needed to filter out UV rays from the sun.

1992 -- Framework Convention on Climate Change took place. It was an acknowledgement that climate change is a concern and that developed countries must take a lead in reducing emissions.

1995 -- Intergovernmental Panel on Climate Change (IPCC) second assessment concluded that humans have a "discernible influence" on the earth's climate.

1997 -- The Kyoto Protocol was created to reduce the emissions of the following six greenhouse gases by the named industrialized countries in Annex B of the Protocol: Carbon Dioxide, Methane, Nitrous Oxide, Hydroflurocarbons, Perflurocarbons, and Sulfur Hexafluroide. The Protocol calls for the reduction in emissions by 6-8% below 1990 levels by 2008-2012. The Protocol also proposed the idea of emissions trading between countries.

2000 -- IPCC in third assessment has declared that humans have "contributed substantially" to global climate change.

2000 -- The Hague, part of the Conference of Parties series to update Kyoto, is held to determine compliance regime, discuss the issue of carbon sinks, and finally ratifying the Protocol.

28. Alred's Case, 77 Eng.Rep.816 (1611)
29. St Helen's Smelting Co. V. tipping, 11 H.L.C. 642 (1865)
30. Kraft, Michael. Environmental Policy and Politics. Green Bay: Harper Collins, 1996. p.85
31. Plain English Guide to the Clean Air Act. United States Environmental Protection Agency, April 1993. http://www.epa.gov/oar/oaqps/peg_caa/pegcaain.html (Oct. 2000). Also, Clean Air Council. Title V: A Citizen's Guide to Stationary Source Permitting Process. Philadelphia.
32. Percival, Robert, Alan Miller, Christopher Schroeder, and James Leape. Environmental Regulation: Law, Science, and Policy. United States of America: Aspen Law and Business, 1996. p.769
33. Ibid. p.776
34. Ibid. p.777