All three of these branches of government play critical roles in the development and administration of environmental policy. Environmental laws such as the Clean Air Act (CAA) originate in the U.S. Congress. Under the American political system, only the elected national legislature can impose such broad and far-reaching limitations on economic activity, which could competitively disadvantage particular industrial sectors or regions of the country. The executive branch is responsible for implementing these laws, and develops regulations for this purpose through authority that is delegated from the legislature. The judicial branch performs the role of enforcing laws enacted by the legislative branch, including ensuring that the executive branch acts within its statutory authority. In addition, courts in the United States play a major role as arbiters of disputes between citizens, which sometimes involve liability for environmental damage.
In the United States, “judge-made” or “common law” liability rules represent an important forerunner of, and adjunct to, statutory environmental law or regulation. In particular, through a private lawsuit based on the common law claim of nuisance, an injured party can either seek payment for property damage, or try to enjoin the activity that is causing harm. Alongside an extensive framework of environmental regulation, nuisance suits are still employed today to address damage caused by air or water pollution, especially in situations where government regulation has proven to be inadequate. However, prevailing in a nuisance suit is not easy. Private litigation is costly and time-consuming, and the injured party must generally prove that the defendant engaged in an “unreasonable” activity that “substantially” interfered with the enjoyment of his or her property (Powell, 1992). It may be especially difficult for someone injured by air pollution to show that a particular defendant caused quantifiable harm (Diamond v. General Motors Corp., 1971). This point was driven home in 1969 by a class action lawsuit filed on behalf of seven million residents of the Los Angeles area. The suit named almost 1,300 defendants and simply asked the court to “do something about the air.” Therefore, while the right to use private lawsuits to address environmental damage is a vital principle of American law, government regulation is generally viewed as a more efficient mechanism for protecting public health and the environment, with the critical advantage that it can be used proactively to prevent harm before it occurs.
Prior to 1970, state, county, and municipal governments in the United States undertook most air pollution regulation. Municipal smoke ordinances in the United States date back to the 19th century. State and local efforts to address air pollution intensified in many areas after World War II, in response to rapid growth in industrial activity that occurred during the war and continued afterwards. These state and local efforts are exemplified by those efforts undertaken in Pittsburgh and Los Angeles in the 1950s and 1960s, which are discussed in Chapters 8 and 10.
The federal government also began to address air pollution after World War II, but began with a comparatively modest focus on research and technical assistance. The National Air Pollution Control Administration was created within