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Struggling for Context: An Appraisal of “Struggling for Air”

October 2016

Citation: 46 ELR 10838

Issue: 10

Author: Craig N. Oren

Richard Revesz’s and Jack Lienke’s new book, Struggling for Air, has attracted considerable attention: for instance, it was the subject of a symposium in this publication. I want to build on that discussion here, taking a different perspective from any expressed in the symposium. Revesz and Lienke argue that there was a tragic flaw in the CAA Amendments of 1970: the “grandfathering” of existing electricity generating units by exempting them from national emissions standards. This, they argue, encouraged pre-1970 units to continue to run without sufficient pollution controls and to injure health and the environment. The book is incisive and a good read; everyone concerned with environmental issues should study it. But I want to question the authors’ account of why “grandfathering” came to be, as well as their assumption that trying to regulate power plants as they wished would have proven effective.

Craig N. Oren is Professor of Law, Rutgers Law School.

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