From Common Law to Environmental Protection: How the Modern Environmental Movement Has Lost Its Way

In this paper I examine the common law roots of environmental protection in the law of nuisance. At a conceptual level, the insistence on nontrespassory invasions remains a good touchstone for liability, when suitably modified to take into account the live-and-let-live doctrine for low-level nuisances. Administratively, the system founders when discharges from a large number of sources harm a large number of private parties. But the centralization of administrative authority is justified solely on the ground that it reduces transaction costs, but not as the source of some novel set of entitlements. The correct response to novelty is not to change the legal framework, but to increase expenditures on enforcement of the nuisance law or the purchases of habitat and other valuable land.Following this approach makes it possible to avoid three major flaws of modern environmental law in both state and federal systems. The first is to allow compliance with statutory requirements to a private party from liability or the government from paying just compensation for the pollution it causes. The second is to allow the government to require that parties comply with extensive permit requirements that halt activities wholly without any showing of imminent or actual harm. The third is to obscure the distinction between harms caused and benefits conferred, in ways that allow the government to restrict, without compensation, private uses of land that do not constitute nuisances at common law. The systematic disregard of the efficient common law rules on pollution and land use produce two forms of mischief: too much tolerance of pollution and too much regulation of land use in the absence of pollution.