Clean Coal/Dirty Air: Or How the Clean Air ACT Became a Multibillion-Dollar Bail-Out for High-Sulfur Coal Producers

by Bruce A. Ackerman, William T. Hassler

A path-breaking effort in constitutional theory which brings a new clarity to the interpretation of the Fifth Amendment's just compensation clause. Essential reading for lawyers concerned with environmental regulation or the general development of constitutional doctrine.

205 pages, Paperback

First published July 1, 1981

Reviews

[Michael Lewyn · Rating 5 out of 5]

In 1977, Congress sought to reduce sulfur dioxide pollution by requiring the best available technology to reduce pollution. Ackerman shows that this statute (and its subsequent interpretation by the EPA) was the result of special-interest politics. Coal producers in the east produced high-sulfur coal, while coal producers in the west produced less polluting low-sulfur coal. Thus, eastern coal producers would have suffered from restricting sulfur directly, and lobbied Congress and the EPA to shift the cost of pollution cleanup to coal-burning utilities by requiring the latter to use scrubbers to "clean" the coal. Ackerman points out that a less costly solution would have been to set a ceiling on sulfur emissions; this would have allowed utilities to reduce pollution by using low-sulfur coal without having to pay for scrubbers. But eastern coal interests discouraged this solution and the EPA listened.

Ackerman explains how Congress can prevent this sort of special-interest capture: instead of telling EPA what means it should use to (for example) reduce sulfur dioxide pollution, Congress should give EPA more discretion. Instead of directing what technology should be used (or even telling EPA to mandate the best available technology) Congress should set forth a pollution-reducing goal but let EPA decide whether to reach that goal through improved technology or through some other means. Because Ackerman's book is over 30 years old, I am not sure how any of this applies to 21st-century problems.