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Madeleine Akrich
Yannick Barthe
Fabian Muniesa
et al.

Thin air

Sheila Jasanoff

Texte intégral

Clearing the air

1How do we grasp the air? Without Michel Callon’s guidance, I might never have asked that question. Years ago, when I first entered environmental law practice, I took it for granted that problems such as air pollution exist “out there” in the real world for science to discover and law to fix. It is a measure of Callon’s influence that I understand the law today as a metaphysical instrument, no less powerful in its capacity to order nature than the tools of the ancient oracular and alchemical trades. Through the dynamics of the law, as I will show, we see and feel the air as a carrier of invisible particles; a medium bearing risks to the hearts and lungs of runners and elderly city-dwellers; a source of risk to jet engines; and a repository for greenhouse gases that can be bought and sold as if they were so many widgets on a celestial assembly line. If today the quality of the air has become a “matter of concern” for global populations, then it is importantly because the law, that most social of institutions, has worked hand-in-hand with science to make it so.

A felt presence

  • 1 The anthropologist Mary Douglas popularized the definition of pollution, or dirt, as “matter out o (...)

2How and why we should regulate the air was not always a puzzle. By the middle of the nineteenth century, industrializing Britain, for example, faced a problem of tangible and growing proportions. Smoke, smog, soot, grit – those monosyllabic Anglo-Saxon words captured a visible blight that thickened the air, grimed the buildings, acidified the farmlands, burned off the leaves from living trees, and choked and killed vulnerable people with weak hearts or breathing difficulties. This was manifest pollution: matter so clearly out of place that it did not need an ethnographer’s eye to explain why people saw it as polluting.1 Britain’s first major law controlling air pollution, the Alkali Act of 1863, was written to rid the air of acidic fumes that were blasting England’s wooded and pastoral landscapes:

“Oaks, ashes, poplars, walnut and fruit trees were the worst affected while sycamores proved more resistant. The effect on crops was equally devastating but more rapid. If grain in bloom was exposed, the crop was destroyed, while grass and clover was burned and rendered useless… The result, as The Times correspondent noted, was that ‘whole tracts of country, once as fertile as the fields of Devonshire, have been swept by the deadly blights till they are as barren as the shores of the Dead Sea or the banks of the Great Salt lake’.” (Dingle, 1982: 532)

3This was the landscape John Keats deplored in his 1819 ballad, “La Belle Dame Sans Merci,” whose haunting lines (“The sedge is wither’d from the lake, And no birds sing”) Rachel Carson took up as an epigraph for Silent Spring, the book that launched the modern American environmental movement (Carson, 1962).

  • 2 Hansard, House of Lords, HL Deb 22 May 1865, vol. 179, c636. effect, that underwrote the Scientifi (...)

4The air of the later nineteenth century was so palpably “noxious” that it moved people to action. It was laden with fumes, it deposited dirt on surfaces, it ate away leaves and paint and marble statues. It smelled unwholesome. It created the “pea soupers” that London was infamous for until the Great Smog of 1952 provided an unmistakable sign that dirty air shortens thousands of lives. More actor than actant, that vaporous air pulled together cleansing coalitions of humans: farmers and factory inspectors, physicians and sick patients, parliamentarians and county councils. Manufacturers, too, became compliant members of these networks of action, since no reasonable minds, confronted by the noxious air, could deny the need for improvement. As Lord Stanley of Aderly observed to the Earl of Derby in the House of Lords, upon hearing a summary of the first Alkali Act Inspector’s Report in 1865, “The success of the measure was no doubt attributable to the fact that it had met with the approval of the manufacturers themselves; though no doubt the Inspector had also contributed much to its success. Any future legislation must greatly depend for success upon having the approval of the manufacturers, and therefore it would be necessary to proceed very cautiously.”2

5In this early phase of legislating the air, we see in effect an “actant-network” in the making. Fulfilling the dream of symmetry between humans and non-humans, it is the air itself that in this case enrolled the humans, along with their lawmaking institutions. The noxious air gathered together a network of interested human agents with the capacity to measure and monitor it, and to render it bright and sparkling. Yet even when the air’s agency was more in evidence than at any historical period before or since, the networks of action depended on an underlying substrate of institutionalized human meanings, beliefs, and relationships; those commitments, and the associated social practices, motivated a powerful heterogeneous alliance to come into action. As more humans entered the picture – not merely affected citizens and farmers, but inspectors, manufacturers, and even the British House of Lords – interactions among those actors took on thickness, and complexity. As Lord Stanley observed, the assent of manufacturers became indispensable to the success of the 1863 Alkali Act, and Dr. Angus Smith, the first Alkali Inspector, became famous for negotiating a consensual approach to implementing the law. A well-known legal by-product of the era was the concept of “best practicable means,” a standard of implementation which ensured, through its emphasis on practicability, that regulatory burdens would not exceed what manufacturers deemed to be bearable. That pragmatic approach characterized British environmental regulation, both then and later (Vogel, 1986; Brickman et al., 1985; Jasanoff, 1986). It was a cautious, empiricist outlook, respectful of local differences, aware of the limits of governmental authority, and skeptical of sweeping measures that aggregate costs and benefits at scales above the local. Pragmatism catered as well to British civic epistemology (Jasanoff, 2005), long inclined to accept commonsensical demonstrations founded on factual assertions that anyone could witness – the same epistemic norms, in effect, that underwrote the Scientific Revolution.

Invisible threats

6Visibly oppressive until well into the middle of the twentieth century, the air of the older industrial countries at some point became thinner. The sun shone once more on London streets, and buildings throughout the Western world were cleaned without fear that their once-sooty façades would turn black again in a matter of years. Even in newly liberated Eastern Europe, the advent of Western standards and, to some extent, western technologies helped to clear the air. In the former East German city of Leipzig, the story goes, before the fall of the Berlin Wall butter left on the table by day turned black by night, as if reflecting the cycle of the sun itself. Afterwards, when East Germany’s brown coal industry was shut down by decree of the German government, the air cleared, and Leipzigers could enjoy their yellow butter from dawn till dusk. And yet airborne threats remained, growing if anything more deadly as toxic chemicals replaced soot particles and, later, as local weather patterns heated up, signaling anthropogenic climate change.

7As the air once again became invisible, the polarity between actors and actants in the networks of air pollution control also tilted in favor of the humans. Now the actants were shy, remote, and intangible things. Bringing them to light called for novel exercises in discerning, naming, ordering, classifying – all requiring new forms of meaning-making. Science, in the backseat during the earliest years of concern for air quality, assumed ever greater prominence in setting the baselines for regulation in an age preoccupied with the unseen and the futuristic. Legal actors and their ways of getting to grips with uncomfortable realities also came into their own. For what makes the air dangerous now had to be demonstrated through processes of co-production that require the simultaneous manufacture of facts, criteria of validity, public demonstrations, credible administrative procedures, and discourses of reason that carry weight with policymakers and the public (Jasanoff, 2004). Through coordinated scientific and legal maneuvers, the air became filled with new entities: hazardous air pollutants, ozone-depleting chemicals, fine particulate matter, greenhouse gases. At once matters of fact and matters of concern, airborne hazards came into being as a result of human attempts to find solutions to all too human ills.

8In the United States, where political questions have long had a way of sliding into legal ones, it was perhaps inevitable that this reordering of the air would require legal intervention. Tocqueville observed the interchangeability of law and politics in his masterwork, Democracy in America; his insight holds true today, when even the results of disputed presidential elections are ultimately resolved in the courts. Necessarily then, almost as a corollary, the struggle to control the air, with the aid of new materialities, became a struggle over controlling the law. Whose definitions would count, and on what basis? When would arguments be deemed sufficiently persuasive? Who should get the last word?

  • 3 The US Environmental Protection Agency was established by Richard M. Nixon’s Reorganization Plan N (...)

9The effort to answer those questions gave rise, in effect, to a hermeneutic tug-of-war: a multi-institutional struggle for the control of public meanings. The interlocutors in that epochal fight were largely human and social, for during battles over legal interpretation that unfolded over four decades the air itself gradually faded back into nothingness, an empty vessel devoid of tangible meaning. In the United States, those struggles were embedded in a mature system of administrative law that was shocked into innovation through a spate of social regulation enacted during the 1970s. Importantly, though not exclusively, the laws of that period laid the foundations for environmental protection as we currently know it. It created or authorized new regulatory authorities, among them the Environmental Protection Agency (EPA),3 bestowed new obligations on them, and substantially reconfigured public expectations with respect to health, safety, and environmental pollution.

Risk and deference

10Not only the air but the nature of public threats became, in a sense, more elusive or hard to pin down during the 1970s. This was the period in which American regulatory law moved from a concern with demonstrable harms to a preoccupation with undemonstrated risks (Jasanoff, 1995). Many of the consequences lawmakers sought to control were latent or hidden, either because they would result from the gradual accumulation of toxicants in the environment or because their impacts on human bodies or ecosystems and threatened species would lie dormant, like cancers whose origins in mutations may long predate the disease’s detectable onset. It fell to the EPA to construct the structures of rules and interpretation within which unknown, unknowable, and yet impermissible harms could become the basis for costly preventive actions.

  • 4 See, for example, Jasanoff (1992) and McGarity & Wagner (2008).

11Much has been written about the EPA’s evolution as an expert agency: its hesitant assumption of regulatory authority in the 1970s, its involvement in establishing risk assessment as an analytic technique, its build-up of in-house research and external networks of expertise, its struggles for credibility in the deregulatory fervor of the 1980s, and the openly political attacks on its scientific judgment during the administration of George W. Bush at the turn of the century.4 Less noticed, especially in the work of STS scholars, were the doctrinal battles fought over the control of legal meanings, which in turn often determined which of EPA’s expert judgments would remain standing. The history of litigation surrounding EPA’s regulatory activities in its first forty years mirrors changing political ideologies in the United States. These were years of almost Manichean struggle between big and small government, welfare and privatization, nationalism and federalism, and most recently between “red” (Republican) and “blue” (Democratic) states. Indeed, it is striking to what extent contests over the control of air served more broadly as surrogates for the control of political power.

12This is not the place for that detailed history, but a few milestones will illustrate how epistemic uncertainties about how clean the air should be translated into the easier normative question of who should define the concept of cleanliness.

13The 1970s were a time of democratic expansion, as federal courts cooperated with a nascent environmental movement to craft new rules of access to regulatory proceedings. Battles were fought, and often won, by citizens who demanded that they should be allowed to represent environmental values in court (that is, gain standing to sue), to bring polluters to task under new federal citizen suit provisions, and above all to hold agencies legally accountable for shortcomings or lapses in their assessments of scientific and technical evidence. The Court of Appeals for the District of Columbia Circuit emerged as a de facto federal administrative court because this was the jurisdiction that heard the bulk of significant regulatory lawsuits. Sympathetic judges on the D.C. Circuit construed the procedural provisions of new laws in ways that broadened public participation and raised the standards of public reasoning on technical issues.

  • 5 I refer in the first place to Beck (1992); later works developing Beck’s ideas of global risk and (...)

14Without great public fanfare or scholarly commentary, the United States emerged in this decade as its own kind of risk society. This was not a place where the universal, potentially catastrophic specter of risk gave birth to new politics and new solidarities, as in Ulrich Beck’s accounts of modernity.5 Rather, it was a place in which new tools of analysis and control were devised so regulators could confidently predict the future and persuade Americans that they would be safe from the harmful consequences of innovation and unbounded growth. Risk became the US regulatory agency’s riposte to the unknown. It was a conceptual tool for subjugating the future and subjecting it to probabilistic calculation, a tool for “taming chance” in Ian Hacking’s felicitous formulation. Though EPA officials initially acknowledged the high degree of judgment involved in such calculations, risk assessment gradually took on the attributes of a science, becoming more formal, more methodologically rigorous, and more quantitative (Winner, 1986). In 1983, the US National Academy of Sciences issued an influential report declaring risk assessment to be a largely scientific exercise and urging regulators to keep it functionally separate from the value-laden process of risk management (National Research Council, 1983).

15By the late 1970s, reaction set in against the crusading alliances forged by concerned citizen groups, mission-conscious regulatory authorities, pro-environment experts, and activist courts. The politically pivotal year of 1980 ushered in the conservative backlash of the Reagan era; it also changed the locus and the texture of epistemic controversies about environmental pollution. Whereas litigation in the 1970s frequently addressed the balance of power between citizens and regulatory agencies, through controversies over standing for example, by the 1980s that debate morphed into questions about the relative power of courts in relation to executive agencies. To what extent, courts asked, and were asked, could judges second-guess agencies’ procedural or technical judgments, and even regulators’ constructions of the law? When could judges superimpose their notions of responsiveness, rationality, and legality upon the judgments of appointed executive officials? Important turning points centered on the quality of the air.

  • 6 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978).

16Symptomatic of change was a 1978 decision, Vermont Yankee v. Natural Resources Defense Council (NRDC),6 in which a unanimous Supreme Court held that judges were not authorized to impose new procedural requirements on regulatory agencies, even if they concluded that additional procedures could improve the agency’s technical evaluation. Sovereign authority to specify administrative procedures lay with Congress, the Court ruled. Judges were powerless to modify these through the back door of asking for better arguments or a stronger factual basis for decisions.

17Three later landmark decisions in administrative law dealt specifically with regulation of the air. Each illustrates, through the interplay of law and science, a familiar dynamic of late modernity’s struggles with uncertainty. In each case, the question of how to characterize the air shifted to questions of how to regulate legal discourse. Metaphysical questions, in short, became normative ones. How should the unseen and potentially dangerous components of the air be rendered palpable in ways that compel state action and justify the expenditure of millions? What can legal standards do to persuade people that the air is subject to appropriate vigilance and control? How can mere words, the instruments of the law, connect to invisible things in the air, forming active and action-forcing links between norms and airborne particles? And, faced with the ambiguities and silences of the record on climate change, who has authority to interpret the air in ways that compel people to act and markets to move?

  • 7 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).
  • 8 467 U.S. at 842-843.

18At issue in each case was a question of finality: whose word on clean air counts as the last word? In Chevron U.S.A., Inc. v. Natural Resources Defense Council,7 the Supreme Court considered whether EPA had correctly interpreted its mandate to control new sources of air pollution in so-called non-attainment areas that had not yet met the applicable standards. EPA ruled that non-compliant new equipment could be added to existing plants provided that there was no net increase in regulated emissions. Challenged by NRDC, the agency eventually took the issue up to the High Court, which offered what became the governing rule for evaluating the scope of an agency’s freedom to interpret the law. In the two-pronged test of “Chevron deference,” the first prong asks whether Congress has spoken specifically about the issue in question: “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” The second prong concerns those situations in which the legislature’s precise intent is not clear. In these cases, “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”8 In short, as long as a regulatory agency construes its mandate in a plausible manner, the agency’s interpretation will prevail. Administrative discretion is the final adjudicator of the law’s interpretive flexibility – and by extension the interpretive flexibility of scientific knowledge as well.

19Chevron, the most cited case in US administrative law, was invoked as a ground of decisionmaking in two later cases that also involved attempts to regulate the air. Public health is the Clean Air Act’s first priority, as evidenced by a two-tiered architecture that uses “primary standards” to regulate airborne hazards to health and “secondary standards” to regulate other harms resulting from air pollution, such as damage to visibility, agriculture or buildings. By the end of the twentieth century, EPA had concluded that the control of respiratory illness, especially in inner cities, required attention to a new, previously unregulated class of active agents which the agency designated as “fine particulate matter.” These elements, less than 2.5 micrometers in diameter, were responsible, the agency ruled, for worrisome levels of asthma and other diseases. Fine particles therefore had to be controlled, without regard to the costs of added regulation.

20Industry balked at this expansion of regulatory oversight. In an unexpected turn, a group of plaintiffs led by the American Trucking Association sued the government on the ground that the Clean Air Act unconstitutionally delegated legislative power to executive agencies. It supplied “no intelligible principle” for curbing the regulator’s zeal, the plaintiffs argued, and hence left commercial enterprises vulnerable to unconstrained applications of administrative force. This was an audacious attack, relying on a doctrine of imperfect delegation that had not been invoked since the New Deal to challenge a 30-year old law that formed the foundation of American environmental policy. In the millennial year ending with America’s inconclusive presidential election and the court-sanctioned victory of the Republican candidate, George W. Bush, environmentalists and administrative law experts watched intently to see which way the Supreme Court would lean: toward a rejected past of demanding more explicit legislative norms; or a pragmatic future in which the terms of delegation could be allowed to evolve, along with the complex problems over which Congress had authorized regulatory control.

  • 9 Whitman v. American Trucking Association, Inc., 531 U.S. 457 (2001).

21The decision in Whitman v. American Trucking Associations, Inc.9 was a moment of rare unanimity on a court bitterly divided along ideological lines. But what the judges agreed on had nothing directly to do with the composition of the air or the definition of airborne matters of concern for a healthy population. Instead, the nine justices wrestled with the meaning of the separation of powers, the specificity of the terms in which executive policy is crafted, and the particular issue of whether costs need to be considered in setting primary standards against air pollution. The Supreme Court addressed and resolved these issues in EPA’s favor, upholding the adequacy of the law as a framework for exercising administrative discretion. Though enrolled into a network of air pollution control, the court in its reasoning looked inward, into its own past record of making norms and meanings. In direct consequence, fine particles acquired both physical and normative definition. They became ensconced in our lexicon of reality as a kind of object that we release into the air at our peril.

  • 10 Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).
  • 11 The Clean Air Act, 42 U.S.C. §7521(a)(1), requires the EPA administrator to regulate “any air poll (...)

22Several years later, the Clean Air Act served as the instrument of choice for an alliance with a wholly different purpose: to force the US government to act on climate change. In Massachusetts v. Environmental Protection Agency,10 a case that predictably made its way into the Supreme Court, twelve states and a number of cities sued EPA for its failure to regulate greenhouse gases under the Clean Air Act. The challenge raised several technical legal issues that were resolved in the litigants’ favor, including whether states have the right (“standing”) to bring such cases to court at all. The interesting metaphysical question, however, was whether greenhouse gases emitted by motor vehicles may properly be considered as a form of air pollution, the specific kind of out-of-place matter that the Act requires EPA to regulate.11 In addressing this issue, the Supreme Court entered into a moment of co-production, a moment in which the meaning of air and the meaning of the Clean Air Act became simultaneously fluid, to be settled by the judgment of a 5-4 judicial majority.

23The struggle for the control of meanings can be discerned most clearly in the observations and opinions of Justice Antonin Scalia, a Reagan appointee known for his quick wit, acerbic style, and conservatism in matters of legal interpretation. A defender of administrative discretion against (in his view) unwarranted judicial activism, Scalia insisted that the law protects EPA’s reasoning against the attack by the petitioning states. To reach this conclusion he drew on what he saw as the plain meaning of the statute and the agency’s right, under Chevron, to be the law’s final interpreter, within reason. In the oral argument on the case, when the justices have an opportunity to question the parties in person, Scalia sought to distinguish between “air pollution,” as defined by the Clean Air Act, and global warming, which affects an atmospheric system that is arguably not the same thing as “air.” His exchange with James R. Milkey, Assistant Attorney General of Massachusetts, is revealing:

  • 12 The full text of the oral argument in Massachusetts v. EPA can be found at: http://www. supremecou (...)

“JUSTICE SCALIA: Mr. Milkey, I had – my problem is precisely on the impermissible grounds. To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call “air” is endangering health. That isn’t, that isn’t – your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.
MR. MILKEY: Respectfully, Your Honor, it is not the stratosphere. It’s the troposphere.
JUSTICE SCALIA: Troposphere, whatever. I told you before I’m not a scientist. (Laughter.)
JUSTICE SCALIA: That’s why I don’t want to have to deal with global warming, to tell you the truth.
MR. MILKEY: Under the express words of the statute – and this is 302(g) – for something to be an air pollutant it has to be emitted into the ambient air or otherwise entered there.
JUSTICE SCALIA: Yes, and I agree with that. It is when it comes out an air pollutant. But is it an air pollutant that endangers health? I think it has to endanger health by reason of polluting the air, and this does not endanger health by reason of polluting the air at all.
MR. MILKEY: Your Honor, respectfully, I disagree, and there is nothing in the act that actually requires the harm to occur in the ambient air. In fact, some of the harm here does occur there.
JUSTICE SCALIA: Well, it talks about air pollution all the time. That’s what the, that’s what the thing is about, air pollution. It’s not about global warming and it’s not about the troposphere.”12

24When the Supreme Court rendered its split decision in favor of the petitioning states and against EPA, Justice Scalia filed an individual dissent. Clearly, he felt that upholding EPA’s discretion even in the face of an international scientific consensus was important enough to justify a statement about the right way to interpret American law. Here, in an official opinion, he insisted again on the plain meaning of the Act, which in his view puts global warming somewhere outside the domain of regulated “air pollution.” Neither his mistake about the meaning of “troposphere” nor his admission of scientific illiteracy made an appearance in this text. Instead, the justice turned to the dictionary as an authoritative, communally sanctioned basis for establishing the “natural” meaning of legal terms:

We need look no further than the dictionary for confirmation that this interpretation of “air pollution” is eminently reasonable. The definition of “pollute,” of course, is “[t]o make or render impure or unclean.” Webster’s New International Dictionary 1910 (2d ed. 1949). And the first three definitions of “air” are as follows: (1) “[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth”; (2) “[t]he body of the earth’s atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part”; (3) “[a] portion of air or of the air considered with respect to physical characteristics or as affecting the senses.” EPA’s conception of “air pollution” – focusing on impurities in the “ambient air” “at ground level or near the surface of the earth” – is perfectly consistent with the natural meaning of that term.

  • 13 549 U.S. at 527.

25In defending EPA’s understanding of air pollution, Scalia constructed a forceful hermeneutic hierarchy: between courts and agencies, between lawyers and scientists, and between “common” and expert interpretations of words in everyday circulation. His view of the separation of powers gave primacy to the agency’s right to interpret legal language in the way ordinary people do, as enshrined in Webster’s dictionary and sanctioned by age-old interpretive traditions in common law courts. Within this discretionary perimeter, science had no privileged place. For the majority, on the other hand, what mattered was an alternate, intellectually compelling definition of air pollutant, based on mounting scientific evidence that greenhouse gases endanger life, health and property within the petitioners’ jurisdiction. EPA, in the majority’s view, could not legitimately ignore that evidence, leaving science out in the cold. Scientific knowledge had to inform the agency’s reading of the law: “Put another way, the use of the word “judgment” is not a roving license to ignore the statutory text. It is but a direction to exercise discretion within defined statutory limits.”13 Limits, in turn, that answered to scientific reason.

Postscript: Icarus rising

26Unseen presences, vaporous emanations, entities that harm us because we have reason to believe in them… This is not the air of the premoderns, but very much our air, in modern times. It was our nineteenth-century ancestors who, in a sense, had the firmest hold on the air – with thick smogs and choking fumes that all saw as dangerous and all were willing to remove through concerted action. The knowledge that brought our predecessors enlightenment has led us to ignorance and doubt. Well for us, indeed, that the law exists as a potent instrument for deriving meaning from chaos. Without the law, we should be lost in this time of thin air. We would not know how to name the air’s innumerable, imperceptible, risky components, nor how to put them in their proper places, nor how to live safe lives when threatened by the air’s unsettling predations.

  • 14 Critics saw the airspace shutdown as another example of the precautionary principle run wild: “Oth (...)

27April 14, 2010. A test case. On that day Iceland’s Eyjafjallajökull volcano erupted explosively, spewing enormous plumes of ash high into the air, to be blown about by southeasterly winds across the face of Europe. On the ground, in France and England, in Germany, Spain and Italy, the sun shone as brightly as before; there was no earthly reason for concern. Yet, thousands of feet above ground, Eyjafjallajökull’s fine volcanic particles created a hazard for the airplanes that daily ferry hundreds of thousands of human beings in lofty trajectories around the world. At what levels of exposure might jet engines clog up with ash, causing catastrophic failures and killing hundreds? No one knew, and so the airspace across more than 30 European nations closed for fear that allowing planes to fly under these conditions might be an act of tragic recklessness. The crisis laid bare the limits of technoscientific control. No one knew how to immunize a vast system of aerial transportation against the high-flying particles. In eight days of travel disruption from April 15 to 23, the worst such since World War II, more than 100,000 flights were canceled, commercial aviation lost billions of dollars, airports dealt with millions of affected passengers, national authorities reeled under increasing criticism that they were taking unnecessary precautions,14 and airlines began conducting experiments with passengerless flights to establish that the skies were safe for European aviation.

28As airlines chafed and public frustration grew, legal rulemaking stepped in to remake an air suitable for flight. Within a month of the eruption, the European Commission announced new engine ash tolerance levels, first 2 milligrams and then a more relaxed 4 milligrams per cubic meter. The Single European Sky Initiative, an ambitious plan to harmonize the management of the airspace above Europe, gained momentum, at a time when the Eurozone faced unprecedented economic strains. Once again, the air was harnessed to serve human purposes, and it was law that brought the air back under physical, economic, and political control.



Beck, U. (1992), Risk Society: Towards a New Modernity, London: Sage.

Beck, U. (2006), Cosmopolitan Vision, Cambridge: Polity Press.

Beck, U. (2008), World at Risk, Cambridge: Polity Press.

Brickman, R., S. Jasanoff & T. Ilgen (1985), Controlling Chemicals: The Politics of Regulation in Europe and the United States, Ithaca, NY: Cornell University Press.

Carson, R. (1962), Silent Spring, New York: Houghton Mifflin.

Dingle, A. E. (1982), “‘The Monster Nuisance of All’: Landowners, Alkali Manufacturers, and Air Pollution, 1828-64”, The Economic History Review, 35 (4), pp. 529-548.

Douglas, M. (1984), Purity and Danger, London: ARK Paperbacks.

Jasanoff, S. (1986), Risk Management and Political Culture, New York: Russell Sage Foundation.

Jasanoff, S. (1992), “Science, Politics, and the Renegotiation of Expertise at EPA”, Osiris, 7, 195-217.

Jasanoff, S. (1995), Science at the Bar: Law, Science, and Technology in America, Cambridge, MA: Harvard University Press.

Jasanoff, S., ed. (2004), States of Knowledge: The Co-Production of Science and Social Order, London: Routledge.

Jasanoff, S. (2005), Designs on Nature: Science and Democracy in Europe and the United States, Princeton: Princeton University Press.

McGarity, T. & W. E. Wagner (2008), Bending Science: How Special Interests Corrupt Public Health Research, Cambridge, MA: Harvard University Press.

National Research Council (1983), Risk Assessment in the Federal Government: Managing the Process, Washington, DC: National Academies Press.

Vogel, D. (1986), National Styles of Regulation, Ithaca, NY: Cornell University Press.

Winner, L. (1986), “On Not Hitting the Tar Baby,” in The Whale and the Reactor, Chicago: University of Chicago Press, p. 138-154.


1 The anthropologist Mary Douglas popularized the definition of pollution, or dirt, as “matter out of place” (Douglas, 1984: 35).

2 Hansard, House of Lords, HL Deb 22 May 1865, vol. 179, c636. effect, that underwrote the Scientific Revolution.

3 The US Environmental Protection Agency was established by Richard M. Nixon’s Reorganization Plan No. 3 of 1970, but it was soon entrusted by Congress with major regulatory responsibilities under two dozen or so laws.

4 See, for example, Jasanoff (1992) and McGarity & Wagner (2008).

5 I refer in the first place to Beck (1992); later works developing Beck’s ideas of global risk and cosmopolitanism include Beck (2006, 2008).

6 Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978).

7 Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).

8 467 U.S. at 842-843.

9 Whitman v. American Trucking Association, Inc., 531 U.S. 457 (2001).

10 Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).

11 The Clean Air Act, 42 U.S.C. §7521(a)(1), requires the EPA administrator to regulate “any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.”

12 The full text of the oral argument in Massachusetts v. EPA can be found at: http://www. (accessed August 2008).

13 549 U.S. at 527.

14 Critics saw the airspace shutdown as another example of the precautionary principle run wild: “Other analysts pointed to a general European obsession with safety, which is called ‘the precautionary principle.’ Essentially, European governments and their constituents believe that if the safety of something is not proven, it should not be allowed. ‘Europe is the victim of the precautionary principle,’ Mr. Pothier said, of “an uncoordinated overreaction to possible risk.’ That led to a huge oversupply in swine flu vaccine, for instance, and, as Mr. Quatremer noted, the European aversion to genetically modified grain.” (S. Erlanger & N. Clark, 2010, “Europe to Ease Aviation Ban Amid Criticism”, New York Times, April 19).

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