5. Rapid Amortization of Air Pollution Control Devices

Effective with income years beginning after December 31, 1954, a taxpayer may, at his election, claim a deduction with respect to amortization of the adjusted basis (for determining gain) of any device, machinery or equipment for the collection at the source of atmospheric pollutants and contaminants based on a period of 60 months. The period will begin, at the election of the taxpayer, with the month following the month in which the equipment was completed or acquired, or with the succeeding income year.

(Sec. 17226 (for individual persons) and Sec. 24372, (for banks and corporations), Revenue and Taxation Code, West's Annotated California Codes)

LEGAL ASPECTS OF AIR POLLUTION CONTROL1

(By Harold W. Kennedy, county counsel of the county of Los Angeles, and legal adviser to the Los Angeles County Air Pollution Control District)

As a preliminary to the discussion of the law relating to air pollution control, it is interesting to note the environment in which our discussion takes place. I refer to the fact that this institute is not one of law, nor of the law of air pollution, but is on public health law. It probably seems natural to health officials that the law relating to air pollution control be included in that body of law dealing with public health.

Such is not the case. As we shall see, legal regulation of air contamination has developed with little consideration for the effect of air pollution upon the health of the general public. The simple truth is that the study of community air contamination and its control is still in the infant stage. Prior to World War II the average informed person did not know that such a thing existed. It is only during the last few years that any substantial interest in the subject has been taken by government and by those engaged in scientific research.

It appears that we may be now entering a new era in this field of law. As our knowledge increases and becomes spread more widely, we can anticipate that new regulations will be adopted. These regulations will not be based upon local nuisances or eye irritation or upon any similar obvious effect. Instead, they will be supported by firm scientific opinion that the particular contaminant causes a particular damage to the human organism.

A. LIMITS UPON LEGAL REGULATION AS A CURE

Some members of the public, including newspapermen and public officials, think of air pollution control only in terms of legal regulations. We should recognize. however, that there are other less direct but equally effective ways to reduce emissions. For example, an efficient mass rapid transit system can reduce emissions from automobiles. The use of alternative fuels such as natural gas in place of fuel oil or coal for the generation of electricity will similarly reduce air contamination. The point to be remembered here is that in governmental control of air pollution, regulation by law enforcement is not the only area of

concern.

B. LEGAL FOUNDATION FOR REGULATING AIR POLLUTION

1. Common law nuisance

It should be noted at the outset that most of our early law and that of the English cases, dealt with air contamination as a part of the field of tort law commonly referred to as nuisance. Smoke was considered to be a nuisance at common law, but it was not a nuisance per se. That is, in each individual case it had to be proved that the smoke was in fact injurious or offensive to the senses. In the case of a public nuisance it had to be proved that a large number of persons was affected. Blackstone reports a case in which the fumes from a lead smelter killed a neighboring farmer's corn and were held to be a nuisance (cited in appeal of Pennsylvania Lead Company, 96 Pa. 116. Earlier cases are collected in 77 English Reprint 816).

It is the prevailing judicial view that the emission of dense smoke in populous communities is a public nuisance. In the case of Glucose Refining Company v. City of Chicago (138 Fed. 209, 215 (1905)), the court said:

"The bill admits the issuance of dense smoke, and it is a matter of common knowledge, of which the court may take cognizance, (State v. Tower (Mo. Supp.) 84 S.W. 12; Moses v. United States, 16 App. D.C. 428; Field v. Chicago, supra). that smoke emitted from a tall chimney is carried over a wide territory, and that when dense, it deposits soot to such an extent as to injure property and health wherever it spreads."

A good statement on the general and prevailing rule in regard to smoke as a public nuisance, was made by the Supreme Court of Indiana in the case of Bowers v. City of Indianapolis (169 Ind. 105, 81 N.E. 1097 at 1098, 13 Ann. Cas. 1198, (1907)). There the court upheld an ordinance of the city of Indianapolis providing:

"The emission of dense, black * ** smoke from any smokestack *** used in connection with any stationary * * * furnace of any description within *

1 Prepared for the Institute on Public Health Law at the University of California at Los Angeles School of Public Health, Los Angeles, Calif., Dec. 12-14, 1963.

the city

except as a private residence, shall be deemed and is hereby declared to be a public nuisance."

The court said:

"The question we have to deal with is not as to the authority to regulate the emission of dense smoke in a sparsely inhabited locality, wherein the act could only result in the creation of a private nuisance, but of the right to prevent the emission of dense black or gray smoke (for so we construe the ordinance) within the corporate limits of a populous city, wherein, if there be no regulation upon the subject, the smoke from scores of steamplants must, in the nature of things, often cover the city as with a pall, thereby impairing the health and comfort of thousands, and casting grime upon every exposed object. If there is anything in the principle of the greatest good to the greatest number, or in the declared authority of government reasonably to regulate the use of property for the common good, it must be affirmed that power exists to deal with a condition which renders life in a great manufacturing city little short of impossible."

As stated by Lord Romilly in Crump v. Lambert (L.R. 3 Eq. 409, 15 Week. Reptr. 417 (England), (1867)):

"The real question in all the cases is the question of fact, viz., whether the annoyance is such as materially to interfere with the ordinary comforts of human existence?"

2. Need for legislation

Long before Blackstone's time it was recognized that the law of nuisance was not adequate to take care of the situation in an urban community where there were a number of sources of air pollution. In England, the first smoke-abatement law appears to have been enacted in the reign of Edward I, in the year 1273. In 1307 one offender of this law, which prohibited the use of coal, as detrimental to health, was condemned and executed. In 1661 John Evelyn wrote a book on the smoke nuisance in London ("Fumifugium: or The Inconvenience of the Aer, and Smoake of London Dissipated, Together With Some Remedies * * *," printed by the National Smoke Abatement Society, London 1933). His remedy was quite simple. All industry was to be moved to the leeward side of the city and sweet-smelling trees planted in the city.

re

The need for enlargement of the public nuisance category was seen by the court in the Missouri case of State v. Tower (185 Mo. 79, 84 S.W. 10, 68 L.R.A. 402 (1904)).

The court said:

"In a word, we assume that the basis of this contention is that, because at common law thick, dense smoke was not deemed a nuisance per se, but depended on the character of the smoke, the quantity, the location, and the circumstances, therefore it was not competent for our general assembly to declare the emission or discharge into the open air of dense smoke within a city of 100,000 inhabitants a nuisance.

"The power of the general assembly to pass all needful laws except when restricted by the State or Federal Constitution, is plenary, and the legislature has the power to declare places or practices to the detriment of public interest, or to the injury of the health, morals, or welfare of the community, public nuisances, although not such at common law. The general assembly, in the exercise of the police power, may declare that a nuisance which before was not a nuisance * *. Even at common law smoke alone in certain circumstances constituted a nuisance; that is to say, when it produced a tangible injury to property as by the discoloration of buildings, injury to vegetation, the discoloration of furniture, and like cases.

"It was entirely competent for the legislature to take cognizance of the fact, known to all men, that the emission and discharge of dense smoke into the atmosphere of a large and populous city is of itself a nuisance *** and once calculated to interfere with the health and comfort of the inhabitants thereof, and to declare it a nuisance per se * * *. We have no hesitancy in holding that it was entirely competent for the legislature to declare the emission of dense smoke in the open air in a city of 100,000 inhabitants a nuisance per se."

See also State v. Chicago, M. & St. P. Ry. Co. (114 Minn, 122, 130 N.W. 545, 546, Ann. Cas. 1912 B, 1030 (1911)).

The validity of regulating statutes or ordinances does not depend upon whether or not the act prohibited is a nuisance but depends instead upon whether or not the law comes within the constitutional limitations and, in the

case of a city or county, whether or not it has power under its charter, constitutional, or statutory provisions to pass such a law.

Without a doubt it is within the competence of a State legislature to confer upon municipalities power to enact ordinances to protect against atmospheric contamination or pollution, such as smoke ordinances, as constituting a proper exercise of municipal police power or power to safeguard against nuisances (7 McQuillin on Municipal Corporations, 3d edition, pp. 469, 470).

Probably the earliest U.S. case upholding a municipal smoke control ordinance is that of City of New Orleans v. Lambert (14 La. Ann. 247 (1859)), where the Louisiana Supreme Court reinstated an injunction by a city against the operation of a blacksmith shop because it exuded offensive odors, smoke, and was a nuisance, all in violation of a city ordinance. The court noted that the police power covers such cases.

3. Validity as to due process

Subsequent to 1894, and the decision handed down in Lawton v. Steele (152 U.S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385), it became well settled that any provision of a statute or ordinance regulating a nuisance is valid insofar as the dueprocess clause is concerned, if it is reasonably necessary for the accomplishment of the purpose and for the public welfare generally, and is not unduly oppressive, nor arbitrarily interferes with private business or imposes unusual or unnecessary restrictions upon a lawful occupation. As was said by Mr. Justice Brown, in Lawton v. Steele, supra:

"While the legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests it may exercise a large liberty of choice in the means employed."

It would seem that no certain and satisfactory limitation upon the legislative discretion, in the exercise of the police power, can safely be declared in advance for application to very many cases that may subsequently arise (Moses v. United States, supra).

4. Availability of control equipment

One of the major early court decisions having significance to the use of scientific appliances or controls was the case of People v. Detroit White Lead Works (82 Mich. 471, 46 N.W. 735 (1890)). As a result of the decision in this case the rule became well established that whenever a business becomes a nuisance, it must give way to the rights of the public and the owners thereof must either devise some means to avoid the nuisance or must remove or cease the business. This is true even though the business is carried on in a careful manner and nothing is done which is not a reasonable and necessary incident to the business and even though there may be no smoke-consuming appliance that will under all circumstances prevent the nuisance. It is to be noted, however, that some later cases show a tendency away from the ruling of the Detroit White Lead case. A treatment of these decisions will be made later in this discussion.

5. The Northwestern Laundry case

Although the early cases rather clearly established that the State could, under its police power, prohibit or regulate the emission of smoke or fumes it was not until 1916 that the substantive law of air pollution control was enriched with the opinion in Northwestern Laundry v. Des Moines (239 U.S. 486, 36 Sup. Ct. 206, 60 L. Ed. 396 (1915)). This case held that the ordinances merely prohibiting the emission of dense smoke in cities or populous neighborhoods, and also ordinances that prescribe a definite scientific standard for the density of smoke, such as the Ringelmann scale, do not offend the Constitution. The smoke may be forbidden without reference to the time or quantity of emission or the im mediate surroundings.

In the Des Moines case the laundry filed a bill in equity against the city of Des Moines, to enjoin the enforcement of a city ordinance providing that the emission of dense smoke in portions of the city was a public nuisance. It was claimed that the ordinance was void under the due-process and equal-protection clauses of the 14th amendment in that, among other things, the ordinance ir providing for the use of Ringelmann smoke chart, prescribed an arbitrary test The standard of efficiency required the remodeling of practically all furnaces The court held the ordinance valid and dismissed the bill upon its merits, saying: "So far as the Federal Constitution is concerned we have no doubt the State may by itself, or through authorized municipalities, declare the emission of

dense smoke in cities or populous neighborhoods a nuisance and subject to restraint as such; and that the harshness of such legislation, or its effect upon business interests, short of a merely arbitrary enactment, are not valid constitutional objections. Nor is there any valid Federal constitutional objection in the fact that the regulation may require the discontinuance of the use of property, or subject the occupant to large expense in complying with the terms of the law or ordinance. Recent cases in this court are Reinman v. Little Rock (237 U.S. 171, 59 L. Ed. 900, 35 S. Ct. Rep. 511); Chicago and A.R. Co. v. Tran berger (238 U.S. 67, 59 L. Ed. 1204, 35 Sup. Ct. Rep. 678); Hadacheck v. Sebastian, decided December 20, 1915 (239 U.S. 394, Ante, 60 L. Ed. 348, 36 Sup. Ct. 143). "That such emission of smoke is within the regulatory power of the State has been affirmed by State courts. (Harmon v. Chicago (110 Ill. 400, 51 Am.

Rep. 698).)

Recent cases consider the problem settled. In Board of Health of Weehawken Township v. New York Cent. R.R. (4 N.J. 293, 72 A. 2d 511 at 514 (1950)), the court said:

** There are no constitutional restraints upon State action against the emission of dense smoke injurious to the common welfare; the only requirement is that the regulation be free from arbitrariness (Northwestern Laundry Co. v. Des Moines, supra)."

6. Liberal construction of regulations

The liberal attitude of some courts toward air pollution control regulations is illustrated by the following quotation from Penn-Dixie Cement Corp. v. City of Kingsport (189 Tenn. App. 450, 225 S.W. 2d 270, 275 (1949)):

"Ordinances to preserve the public health have been liberally construed, and the authorities have gone to a great length in enumerating the implied powers of municipalities to enact laws to protect the community from infectious and contagious diseases, from bad water, against nuisances injurious to health, and noxious odors and gases. Inasmuch as the preservation of the public health, and the safety of the inhabitants is one of the chief purposes of local government, all reasonable ordinances in this direction have been sustained."

The court in People v. Consolidated Co. of New York (116 N.Y.S. 2d 555 (1952)), found that the Smoke Control Bureau of the City of New York acted under the police power of the city in promulgating its rules and regulations, and that such rules and regulations must be liberally construed.

For other cases where the court used a liberal construction, see Department of Health of City of N.Y. v. Philip & William Ebling Brewing Co. (38 Misc. 537, 78 N.Y.S. 13 (1902)), and People v. Long Island R.R. (31 N.Y.S. 2d 537 (1941)). 7. Requisite of reasonableness

Any ordinance or statute under the police power must be reasonable, and for that reason must regulate or forbid something which is or could be considered to be detrimental to the public peace, health, safety, morals, or general welfare. If any set of facts may be supposed which will make a regulation reasonable, or if reasonable minds may differ on the question, the enactment will be sustained (Matter of Miller, 162 Cal. 687, 124 Pac. 427 (1912); Clemons v. City of Los Angeles, 36 Cal. 2d 95, 98-99, 222 P. 2d 439 (1950); Miller v. Board of Public Works, 195 Cal. 477, 488-490, 234 Pac. 381 (1925)). If the ordinance or statute passes this test, a naked violation of the ordinance is all that need be shown. The legislature has a wide discretion in determining what is a nuisance and what is not, and what may be regulated under the police power. In doubtful cases, the determination of the question by the legislative body is conclusive. The courts will not interfere unless the law results in needless oppression, and they will not question the wisdom of the legislation. The courts are not limited to the face of the law itself. They may look behind the law and determine from competent extrinsic evidence whether or not the law is reasonable (Moses v. United States, supra; Bradley v. District of Columbia, 20 App. D.C. 169; State v. Tower, supra; Cincinnati v. Burkhardt, 30 Ohio C.C.R. 350, Ann. Cas., 1918 B. 174 (1908)).

In the case of Moses v. United States, supra, the court said: "The policy of adopting a regulation to meet the conditions is a matter purely and exclusively within the province of the legislative department.

"The judiciary can only interfere with the exercise of the power where it is manifest that the regulation has no real or substantial relation to objects within the police power, and constitutes a palpable invasion of private right."