This book covers an impressive array of topics: the contrasting styles of air pollution regulation in the United States and Europe; the English common law of “noxious vapours” from 1611 to 1900; the origin of the highly effective British Alkali Inspectorate; the development of the common law of nuisance in Pennsylvania from 1869 to 1970; American regulation of “smoke” and “odors” over the past century; and a detailed examination of contemporary regulation of odor at foundries in four American cities. The author is to be commended for the extensive research packed into nine dense chapters.

What ties all this together? How does Lord Coke's reading of Alfred's Case nearly 400 years ago help us understand regulation of iron foundries in New Haven, Michigan, today? The good news is that Noga Morag-Levine has an answer to this question. The bad news is that in the end her answer is not convincing.

A number of high-quality comparative works have shown that since 1970, the United States has developed an unusual style of pollution control. Compared with European regulation, American regulation is more contentious, rule-bound, legalistic, and stringent. The adversarial style of the United States is more likely than the cooperative style of Europe to produce high transaction costs, overregulation of those pollutants on which it takes action, and underregulation of those pollutants that get pushed to the bottom of the crowded regulatory agenda. Morag-Levine questions this conventional wisdom, suggesting (without explicitly arguing) that American underregulation is far more significant than its overregulation, and that this reflects the traditional American hostility to government that one finds in Lochner v. NY. Indeed, linking Lochner to the structure of contemporary air pollution regulation is the most arresting aspect of the book.

Chasing the Wind makes four linked claims. First, environmental regulation in the United States relies primarily on “risk-based standards,” in contrast to Europe, which relies primarily on technology standards. Second, this preference for risk-based standards reflects our “common law regulatory sensibilities” (p. xi). Third, behind common law doctrines on air pollution lies distrust, not just of administrative agencies but of government power generally. Common law judges, she claims, seem incapable of telling the difference between the police powers and the police state (Chapter 4). Fourth, the American risk-based approach is far less effective in reducing pollution than the European technology-based strategy.

Morag-Levine is unquestionably right that the Clean Air Act (CAA) of 1970 placed great weight on health-based ambient air-quality standards, and that this strategy proved administratively cumbersome. But the claim that this dedication to risk-based schemes is both thoroughgoing and deeply rooted in our common law past is hard to square with the subsequent history of environmental regulation. A mere two years later, when Congress passed major water pollution legislation, it virtually abandoned ambient standards in favor of nationally uniform technology standards—the very same approach Morag-Levine lauds in her examination of Britain and Germany. The 1970 CAA itself contains a multitude of “best available technology” standards (most notably for all new sources), and the number of technology-based standards mandated by the act grew significantly in 1977 and 1990.

Over the years, air pollution regulation has relied more and more on technology-based rules and less and less on ambient standards. Indeed, it is hard to talk about air pollution policy without referring to an alphabet soup of technology-based emission limitations: BACT, RACT, MACT, LAER, RACM, BACM, and CTGs. Conversely, European governments routinely and inevitably engage in informal risk assessment to determine which pollutants they should bother to regulate. As a result, the American regulatory scheme looks much more like the European version than Morag-Levine admits.

Another difficulty with the author's argument is the awkward role of Britain in the dichotomies she develops. She first claims that the civil law/common law dichotomy is crucial (pp. 2–3). But she then shows that enactment of Britain's Alkali Act in 1863 represented the triumph of the technology-based strategy and a partial rejection of the common law approach. Her revised argument is that a strong, unitary state can overcome the deficiencies of the common law. So the difference is really between strong, centralized states such as Britain and Germany and weak, decentralized ones, that is, the United States.

In later chapters we discover that even in the United States, a few common law courts started to impose best-available technology injunctions a hundred years ago. More importantly, a “century after Germany adopted its technology-based regime, American cities, finally, conquered the smoke through the same means” (p. 122). In other words, the United States, too, eventually threw off the constraints imposed by its common law past. Political culture is not immutable; we learn from our mistakes, or at least what we interpret as mistakes. To be sure, the United States was slow to develop a more active government. But, of course, we already knew that.

Morag-Levine points out many ways in which the American regulatory regime reflects deep distrust of administrative power. The most obvious consequence of this is our ubiquitous judicial review. But for some reason, she assumes that judicial review is always a method for inhibiting regulation, for protecting what law professors call “private ordering” and the rest of us call private property. As lawyers for the Sierra Club, National Resources Defense Council, and Environmental Defense Fund know, however, litigation can frequently be an instrument for pushing administrators along, for insisting that they perform “nondiscretionary duties,” and for limiting the influence of industry lobbyists, the Office of Management and Budget, and Republican presidents.

What is curiously missing from Morag-Levine's discussion of American environmental policy is any appreciation for the moralism of the American environmental movement, a moralism that insisted upon absolutist health-based standards, even when everyone knew these made little scientific sense. These environmental moralists shared the traditional American distrust of bureaucracy—this was an important part of their political appeal—but hardly the traditional American attachment to a small, reactive government. The author manages to record one strain of the American political melody (Lochnerism), while completely ignoring the other (populism combined with a broad understanding of the right to personal security). Imagine a remix of a Crosby, Stills, Nash, and Young song in which everyone sings the same notes. The tunes might be vaguely recognizable, but the most fascinating part of the music would be missing. The same could be said of Morag-Levine's picture of environmental regulation in the United States.