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The Future of Air Pollution Control in the Corporatist State

July 2004

Citation: 34 ELR 10577

Issue: 7

Author: Jamison E. Colburn

Chasing the Wind: Regulating Air Pollution in the Common Law State, a book authored by Noga MoragLevine, an Assistant Professor of Political Science at the University of Michigan, is a broad indictment of "air pollution control policy" in our common-law state narrated from a "historical" and comparative perspective. In the end, though, the indictment misses its mark. For, while the mistakes of U.S. air pollution control policymakers are many, they are not those spotlighted by this book. Morag-Levine argues that, when compared to a nation like Germany, the United States could be doing a lot better in its air pollution control. From the perspective of one who teaches pollution control law (and still practices it occasionally), I must admit I find this argument sobering. Unfortunately, the shortcomings featured in the argument are more misdemeanors than high crimes and the solutions suggested seem more sound and fury than sound policy prescriptions.

Ultimately, I found Chasing the Wind pointing most directly to serious shortcomings in the academic research being done in the United States in this field--not to the institutions the book critiques. This dearth of research is due at least in part to the dominance of two sets of claims about environmental law, one owed to a seemingly limitless enthusiasm for law and economics over the past 15 years, the other owed to the pervasively discriminatory effects of our legal and economic systems in the siting of locally undesirable land uses. These two sets of claims have literally dominated the political and scholarly agendas to the exclusion of other, perhaps better questions. As a result, Chasing the Wind must grapple with a series of false dichotomies and policymaking canards instead of with the issues that a more fruitful dialogue on the structure of the state and its effects on pollution control policy would embrace.

The author is an Assistant Professor, Western New England College School of Law. J.D., Rutgers Law School, Camden; LL.M. Harvard Law School; Candidate, J.S.D., Columbia University. He served as Assistant Regional Counsel for U.S. Environmental Protection Agency Region 3 from 1998-2000. For helpful conversations and comments he thanks Elizabeth Leong, Eric Miller, and Craig Oren.

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