Origins and structure
The Clean Air Act was enacted in 1967, described by Bob Zadek as a dramatic, revolutionary, game-changing statute passed by Congress to clean the air. Zadek notes there is not much dispute that the air was rancid and foul in parts of the country and that the problem was nationwide, and he suggests legislation was perhaps needed. Guest Ted Hadzi-Antich, a litigator with the Texas Public Policy Foundation, agrees it was needed, recalling that in the 1960s the air situation in many parts of the country was pretty bad, especially in certain areas of California, primarily the Los Angeles Basin and the San Joaquin Valley. The Act, he says, was enacted to deal with growing air pollution issues throughout the country and especially in certain pockets. How the EPA Violated the Clean Air Act (2017)
Hadzi-Antich explains that the Act has been identified as an experiment in cooperative federalism. Federalism as a general matter, he says, refers to the relationship between the federal government and the state government, and which aspects of law and regulation the feds are responsible for and which aspects the states are responsible for. He notes that the United States Constitution enumerates the very limited powers of the federal government and, under the reserve clause, reserves to the states all other powers not specifically enumerated for the federal government. What the Clean Air Act did in 1967, he says, is coin the phrase cooperative federalism. How the EPA Violated the Clean Air Act (2017)
Zadek frames the episode around a set of questions: how the Act has performed over fifty years, whether its purpose has been perverted, captured or changed, how the bureaucrats at the EPA have performed, and how performance will change under new administrator Scott Pruitt, appointed by President Trump. Zadek says Pruitt famously said his goal would be to more or less disband or eliminate the agency itself. How the EPA Violated the Clean Air Act (2017)
The property-rights alternative
In a separate episode, economist Walter Block of Loyola in New Orleans offers a different account of why pollution became a problem in the first place. Before the break, Zadek had described how the use of the courts to protect one’s own property worked for much of economic history without government intervention, allocating costs so that the polluter bore the cost and those damaged by pollution had recourse in the courts under established principles of law. How the Free Market Will Save the Planet (2014)
Block interrupts to add more on pollution, saying he is glad Zadek mentioned crony capitalism because it figures heavily into what is going on. He describes a shift: anthracite coal came from Colorado in the 19th century, and sulfur coal came from places like Pennsylvania and West Virginia, and things were not perfect but pretty good. Then came the so-called Progressive Period in the 1880s and 1890s, and the next time a little old lady or a farmer came to court, the court said something very different. It did not uphold property rights and the common law; instead it said the plaintiffs’ property rights were being violated but that there was something more important than stinking lousy selfish property rights, namely the public good. The public good, Block says, consisted of manufacturing, so the factory was allowed to spew forth smoke and the railroad to run amok with sparks. How the Free Market Will Save the Planet (2014)
Block attributes the change to the 1890s, when the US wanted to engage in imperialist ventures and Great Britain was number one; the way to be number one in armaments with battleships and tanks, he says, was not to let little old ladies and farmers run roughshod over manufacturers and railroads but rather the other way around. He reads a short quote from Murray Rothbard, whom he calls his guru, citing the classic case of Holman v. Athens Empire Laundry Company in 1919, during the Progressive Period. Block says the Supreme Court of Georgia declared that the pollution of the air, so far as is reasonably necessary to the enjoyment of life and indispensable to the progress of society, is not actionable. Not actionable, he explains, means you cannot sue polluters; and if you cannot sue polluters, they will pollute, because using expensive anthracite coal instead of cheaper sulfur coal would make them go broke. The invisible hand was working, he says, but in a very bad way, because the courts were denigrating property rights instead of upholding them. How the Free Market Will Save the Planet (2014)
Block adds what he calls the nail in the coffin: as a sop to the environmental plaintiffs, the green people, the government said it would have minimum smokestack height regulations. Previously the smokestack was twenty or thirty feet high and you could tell where the pollution came from; now it was three hundred feet high — he says he does not know if he has the exact numbers — and it was very hard to tell where the pollution was coming from, putting it into the clouds instead of under the rug. In other words, Block says, the government created the problem and then had the audacity to say private enterprise created the problem and we have to have the Clean Air Act. Had the libertarian system of property rights of the 1830s through 1850s been kept, he argues, we never would have had the problem and would not have needed the Clean Air Act. He calls this a perfect case of free market environmentalism, and says the greens — whom he calls watermelons, red on the inside and green on the outside — fail to realize that the way to achieve what they want is through upholding private property rights, not government intervention and crony capitalism. How the Free Market Will Save the Planet (2014)
The EPA and the “war on coal”
Zadek, in a 2014 episode, describes the EPA using the Clean Air Act, which he calls a massive piece of federal legislation and another piece of legislation by which Congress has ceded enormous power to the executive, specifically to the Environmental Protection Agency — enormous power to regulate every part of our life. He says the EPA, using the Act, has just promulgated massive regulations that have been called the war on coal, a bit of hyperbole used effectively by the coal mining and coal burning states. Matt Zwolinski on Bleeding Heart Libertarianism (2014)
Zadek describes the alleged problem with coal as that it emits carbon, that carbon fouls the air, and that carbon causes what used to be known as global warming; after a cold winter, he says, global warming lost its appeal and now it is simply climate change. He argues that whatever the United States does as a country will have a de minimis effect on the planet, since the country accounts for a small and declining portion of carbon emissions, so the activity is feel-good with no long-term planetary effect. He says the EPA plan will incrementally harm Americans and profoundly affect the poor negatively, because most of the cost of the regulations will fall on the people least able to afford it, the people closest to the level of poverty. Matt Zwolinski on Bleeding Heart Libertarianism (2014)
The episode plays recorded clips. President Obama says he directed the Environmental Protection Agency to build on the efforts of many states, cities, and companies and come up with common-sense guidelines for reducing dangerous carbon pollution from power plants, and that the proposed guidelines will cut down on carbon pollution, smog, and soot that threaten the health of the most vulnerable Americans, including children and the elderly. A clip of Joe Manchin says coal state lawmakers are speaking out, saying President Obama has overstepped his authority by imposing strict new emission limits on power plants, and that Senator Rand Paul says the Obama administration is caving to extremists. Rand Paul, in his own clip, says it shows a lack of balance and that environmental extremists are really guiding the policy of this administration, comparing it to the Keystone Pipeline. A further Manchin clip raises reliability of the grid, asking whether people will have dependable power when they flip their heat or cooling on, and noting that in the polar vortex the frail, the elderly, the young and the poor would be most at risk, without even taking into consideration whether they can afford it. Matt Zwolinski on Bleeding Heart Libertarianism (2014)
Later critique
In a 2017 episode on climate change, Richard Epstein says that once the United States decides to have international aspirations, the entire web of domestic law dealing with environmental materials can be galvanized, and the President can say that an aspirational obligation makes it easier to say existing or new statutes will make these things command and control operations internal to the United States. He says the reason to get out of the Paris agreement was to make sure the entire domestic environmental establishment was not directed towards carbon dioxide when it probably could be directed against things which are much more important. Richard Epstein on Climate Change (2017)
Epstein recalls moving to Los Angeles in 1968 and visiting San Marino, where the air was so filled with pollution that your lungs felt they were being stabbed by a thousand little knives; he notes that the closer you were to the Pacific Ocean for the same house, the more expensive that house was, because people were buying freedom from air pollution, and that gradient is surely down because of massive improvements. The debate, he says, is how much of this is driven by law and how much by technology, and the correct answer is a well-designed legal system that figures out the social cost of other kinds of pollutants, puts a tax or a prohibition on them, and imposes market incentives. He says having a cap and trade system for sulfur dioxide or nitrous oxide is probably a fairly good thing, but it is much more difficult to do with carbon dioxide, where you are not sure whether it is good or bad and where there are so many sources, including you and me every time we exhale. Richard Epstein on Climate Change (2017)
Epstein also says that if you wanted to control harmful pollution, the last thing you want to do is keep the operational details we have with respect to the Clean Air Act and the Clean Water Act; they are much too complicated for their purposes and tend to create huge amounts of perverse incentives by keeping old plants which are dangerous in service and preventing new plants which are much safer from going into circulation. Richard Epstein on Climate Change (2017)
Across episodes: the same question, argued differently
The excerpts show the same underlying question — whether the Clean Air Act was necessary and how it should be judged — treated in more than one episode, but with different emphases rather than a developing argument. Walter Block, in the 2014 free-market episode, argues the pollution problem was created by courts abandoning property rights and that the Act would have been unnecessary under a libertarian property regime. Ted Hadzi-Antich, in the 2017 episode, treats the Act as a genuine response to bad air and explains its cooperative-federalism structure. Richard Epstein, in the 2017 climate episode, accepts that a well-designed legal system can address pollution but criticizes the Act’s operational complexity and perverse incentives. Bob Zadek’s own framing in the 2014 coal episode focuses on the EPA’s use of the Act and its costs to the poor. The later treatment adds the administrative-state and federalism dimensions; the earlier treatment supplies the property-rights origin story.
What the sources do not cover
The excerpts do not state the full text of the Clean Air Act, the specific provisions at issue in any litigation, or the outcome of any case beyond the quoted language from Holman v. Athens Empire Laundry Company. They do not give the date of the Paris Accords, the terms of any treaty, or the details of the EPA’s proposed carbon rules beyond what the speakers say. The excerpts also do not identify which constitutional amendment or clause the federalism discussion turns on, beyond a reference to the reserve clause, and they do not state the founding date or membership of any organization mentioned.