[MUSIC] Hi everyone and welcome to our last week in this course. Can it be? In this session we're going to focus on the regulation of air pollution. Then later this week, we'll step back, look at air and water pollution in a little bit more depth, including the regulation of green house gases. And then in our final theory session we'll step back and do a retrospective about what we've done in this course as well as looking ahead. To what the future of environmental law holds, and the role that we'll all play in it. When we're talking about air pollution a good starting point is to recognize that at least in the United States prior to relatively recently, 1970, there really was not effective regulation of air pollution. Partly because there was no federal substantive statute regulation was left to the states. And most states were afraid of cracking down on polluters for fear that this climate this regulatory climate would chase away business. The law therefore fell to devices like the common-law nuisance actions we opened our course with, and there were relatively few cases like Georgia versus Tennessee Copper, where a court would actually issue an injunction, ordering a polluting source to shut down or change its ways. Much more common were results like Madison vs Ducktown Sulphur, where although the court found there to be a nuisance caused by the air pollution, relegated the plaintiffs a mere award in damages but the pollution went on. Even as a matter of common law nuisance The reaction of many courts was to really rail against the possibility of shutting down polluters. Because the polluters were also recognized as the source of jobs. Here are two counterpoints that took place in the US State of Pennsylvania. Around the middle of the 20th century, that sort of captured this idea. And they're ironic to look at them in comparison to one another. The first is from this case that simply came down from a court in Pennsylvania, the Pennsylvania appellate court, in which someone was complaining there was a nuisance caused by steel mills in Pittsburg. A city in Pennsylvania famous for its steel works, to which the court replied that the pollution in fact is the smell of prosperity, and without it Pittsburgh would just be a pretty little village. The irony is that this decision of the Pennsylvania Supreme Court came just a few years after an incredible, even notorious, public health event that took place in Donora, Pennsylvania. In which another town characterized by heavy polluting industries, suffered a combination of heavy pollution and a weather inversion layer, that locked in the pollution more than usual, and led to a true public health emergency. Even during the day the sky was so dark people couldn't see, they had to drive with their headlights on. There was a high school football game being played that day in Donora, Pennsylvania, in which the spectators, right there at the field, couldn't see the players because of the smoke in the air. 50% of the town was sickened. Hospitals were overflowing. And over 20 people died because of respiratory complications caused by this one day event. This event, ironically, went on to awaken people to the risks of air pollution and eventually led to the federal government in 1970 adopting the clean air act. The 1970 federal clean air act was the first comprehensive medium based statute enacted by the federal government, by a medium based statue I mean it focused on air as the medium. In comparison to the clean letter act which of course focused on surface water. One of the things that's not often recognized is it was this statute, even though it was focused on air, that actually created the United States Environmental Protection Agency as an agency that would implement the Clean Air Act and, of course, would later implement all of the major federal environmental statutes. For a number of reasons, the Federal Clean Air Act is not only comprehensive, it is considered by many one of the strongest environmental statutes ever enacted anywhere. The key to understanding this statute is to recognize in some respects that it is in fact several statutes in one. But at the core of the federal clean air act is ambient based regulation. This approach to pollution control is very different from the clean water act. The clean water act focused on a technology based approach, it asked what's the cleanup technology that exists. That's practicable, and let's just order it on certain polluting sources. Not so with the core of the federal Clean Air Act. Instead, it asks a different question to start with. It asks, how is the airshed doing? Is it healthy? Is it causing damage? Let's first find out all we can about the air in an area before we decide how to regulate. And the air we're talking about is the outside ambient air, as opposed to inside air inside of buildings. So the starting point for the Federal Clean Air Act is to ask, how is the ambient air? Section 109 of the Federal Clean Air Act instructs EPA to set standards for the outside air against which it can be measured, so that we can answer the question, how is the outside air? Section 109 requires the agency to set what are known as primary standards. Standards. These are standards focussing on human health, and the test that Congress gave was this. EPA, you are to set standards for the outside air that are requisite to protect public health, with an adequate margin of safety. Those words aren't necessarily so clear. After all, what do we mean by requisite? What do we even mean by public health? Does it mean the average person or does it mean the most susceptible people who might be most sensitive to air polution. And what do mean by an adequate margin of safety these were all questions that had to be worked out, but the sentiment behind them was clear. We want the air to be safe to bring you even for sensitive individuals that's why the statute goes on to make clear. EPA, in deciding what these standards are, may not consider the cost to the U.S. economy of meeting them. That was irrelevant under the statute. That's why in practical terms, the Clean Air Act is often thought of as giving people something akin to a right To clean air. That isn't to be trumped by concerns over jobs or the economy, because those things weren't to be considered. Instead, we want air that is sufficiently clean to protect the public health. To understand, or at least to illustrate the Clean Air Act, I had us read a very recent decision. Of the US Court of Appeals for the District of Columbia, often thought of as the second most important court, federal court, in the United States. This is State of Mississippi versus EPA. At issue in this case was EPA seeking to revise the standards, the clean air standards. Four, ozone. Ozone, by the way, you may have heard of. And there are two types of ozone that people frequently talk about when they worry about air pollution. One type exists very high up in the stratosphere, stratospheric ozone. To be honest, that ozone is generally thought of as good ozone, and when there are holes in that Ozone layer that are bad. Because, among other things, they let extra ultra ultra violet radiation in from the sun which can cause things like skin cancer among humans down on earth. Ground level ozone, on the other hand, is definitely bad. And ground-level ozone also frequently goes by the name of smog. The thing to appreciate about ground-level ozone is that in itself is a combination, a mixture, of various reactions among nitrogen oxides that exist from polluting sources. Volatile organic compounds like hydrocarbons, that come out of the tailpipes of cars as well as from factories, that combine and the presence of sunlight and air to create smog. And ozone has been linked to a wide variety of series public health risks. In this case, EPA is seeking to revise downward the acceptable amount of ozone that will be allowed under the primary standard in the Clean Air Act, in the outside air. EPA had already set the standard at point Eight parts per million that is to say you could only have a small but tiny amount. 0.8 parts of ozone per million parts of air. To put that into perspective by looking at it a slightly different way. That's the same as saying you can have no more than 80 cents out of a million dollars. Or to put that another way that small amount of pollution was linked to series health risks in people that's how dangerous ozone is and yet. Based on the best available science, EPA was learning that even that level, eight parts per million, was too high. People were still getting sick at levels below that. And EPA was seeking to revise even lower. The standard for ozone from 0.8 to 0.75. And while that might sound like a small amount, in public health terms, it was quite significant. And even though the statute doesn't allow EPA to consider costs, moving just from 0.8 to 0.75 Would impose serious economic costs on areas that had to comply with the new, lower standard. But EPA was doing this based on evidence that at amounts less than 0.8, there were serious health effects, especially in sensitive indiivudlas such as those suffering from asthma. By the way, if you need some images of smog, here are a couple. One is from Los Angeles where I was born, which may be the most notorious area in the United States for smog. The other is a relatively recent photo from Beijing, China. Which might, today, be the poster child for a polluted city, with area pollution sometimes so thick, you cannot even see buildings next door to you. And often, it is the smog in Beijing, like the smog in Los Angeles, that gets all the notoriety. This case, also, was about smog. In this case, EPA was actually attacked from two different sides. On the one hand, the plaintiff, one of the plaintiffs, the state of Mississippi thought that EPA was unnecessarily seeking to lower the standard. And, the state of Mississippi and others argued that wasn't justified. On the other hand there were other plaintiffs including some cities and environmentalists, that thought EPA hadn't gone far enough, and there was plenty of science indicating that standard had to go down all the way to 0.6 to 0.7 parts per million. In order to fully protect populations from the risks from ozone. EPA had to justify to the court in this litigation why its point 75 standard was justified under pressure from both ends. Do you remember when we talked about principles of administrative law? That's the body of law that governs how federal agencies of all types act and how courts review and supervise them. Remember administrative law plays a big role in environmental law not just in this country in the United States, but in almost all countries and one of the principals of administrative law. Is that courts don't sit to second guess agencies. They simply want to ensure that the agency has taken a hard look at the facts and reached a reasonable conclusion. That said, let's do a little hypothetical in which we can test our understanding of administrative law. Are you ready? Here's the hypo. A government agency proposes a standard of six that's just the standard one interest group hates that proposed standard and instead wants a standard of 8 and gives the agency a variety of studies that support. It's proposed alternate standard of eight. Another interest group thinks, it doesn't want eight, it wants five and also gives the agency standards about why five would be a better resolution. In the end, the agency sticks with it's proposal and adopts a standard of six. And explains why it didn't accept the studies and the positions argued by the other groups before it and explains instead why it came to six. Here's my question is that enough to survive judicial review under principals of adminstrative law. Yes or no. If you picked yes your right and the court in this case in the state of Mississippi vs. the EPA followed exactly this prinicipal of adminstrative law in reaching its result upholding EPA lowering of the standard to point 75 parts per million. In explaining why it was rejecting the arguments by the parties on both sides of EPA. The court explained it is not our job, the court's job, to re-weigh the evidence or make the right determination itself. Instead, we simply have to make sure that EPA. Has given attention to the arguments put before it and given a reasonable explanation of the result it reached. And since EPA did that, the court affirms the agency. But there's something else about this decision that deserves our attention. And it's this. In addition to telling EPA to set primary standards to protect human health, Congress in the Clean Air Act instructed EPA to set something known as secondary standards, designed to protect human welfare, as opposed to public health. Human welfare includes in turn a wide variety of things other then effects on our bodies, such as, effects on crops, or on soils, or on forests, or on buildings, or on wildlife, and on eco systems. The Clean Air Act requires that our air be safe enough for all of those things as well. EPA proposed a new secondary standard for ozone to be put at the same level, 0.75 as it's newly revised primary standard. That was challenged also by the parties, particularly the environmentalists that thought in fact the standard should be much, much lower to protect especially sensitive ecosystems and forests and wildlife. Here the court actually reverses the agency. Not because the court thought there was a particular lower standard that should be the standard. But because the agency never explained why it picked point 75 and rejected the other standards. Again, that's the core administrative law of principle. The agency needs to address the problem and convince the court. That the agency has at least given it its attention and given a reasonable explanation of its decision. Because EPA did not do this, the court sent it back to EPA to either re-explain or re-adjust its secondary standard for ozone. This just happened in the summer of 2013. So this is the starting point for understanding clean air regulation. EPA sets these standards, what happens next? Once we have a benchmark against which to measure the outside air, then EPA supervises a complex process, by which states are required to develop implementation plans to clean up any air in their air sheds that are dirtier, than the standards allow. In June of 2013 also very recently EPA published in something known as the federal register which is a government document in the United States. Its proposed rule giving guidance to states about implementing the new ozone rules, the. 75 ozone rules. Do you want to see what that looks like? This is just guidance for how states are to come up with mechanisms that will clean up the air to get to the new. 75 level. This is actually the document. And all I want you to see is, for one thing, it's about 60 pages long, and it's not just any 60 pages. I mean, I'm going to hold this up. It is incredibly tiny print! I mean, that's one of the reasons that lawyers like me need reading glasses! Tiny print, a huge amount of information. This is what Clean Air Regulation actually looks like on the ground in the United States, it's a very complex statute. To take just a tiny example of what's in here, among other things, the implementation plans, have to do an inventory of all admitting sources in your region, you secondly within two years have to come up with reasonably available control technology that can be implemented on certain types of these sources, and every region has to come up with a detailed plan. By which its going to reduce emissions going into its air shed by 15% over the next few years. Those were just three tiny elements that could be found in one paragraph of the 60 page plan. That, together with the development of these standards, is what clean air regulation, ambient-based regulation, looks like in the United States. Just because it's complex though, doesn't mean it's not worth it. For all its complexity, the Federal Clean Air Act has had some incredible results. For one thing. There has been a 31% overall reduction in ozone in the United States. Even during the same period in which US economic growth grew incredibly. Overall there's a whole list of other impressive results including, among other things. The prevention of millions of childhood respiratory episodes caused by air pollution. The Clean Air Act may be cumbersome, but ambient-based recommendation has a good track record. And to that extent maybe deserves its recognition as the queen of the environmental statutes. Next session, we're going to see how there's even more to the Clean Air Act and more to the Clean Water Act, when we look at advanced topics in regulatory pollution control. I'll see you then. [MUSIC].
