The Common Law Approach to Pollution Prevention

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The Cuyahoga River may not catch fire anymore, but pollution problems persist. For centuries, these problems were addressed by the common law, inherited from Britain by both Canada and the United States. Over the last few decades, however, there has been a shift away from common law remedies. Today the most common response to pollution is the imposition of statutory restrictions on behavior.

The effectiveness of the common law, and its potential applicability to contemporary environmental concerns is the subject of academic dispute. Some scholars have pointed out that the common law often set standards far stricter than statutes. Others claim it is too ad hoc to address contemporary pollution concerns in a systematic way.

To further the debate on this issue, the Center for Private Conservation hosted a roundtable discussion on December 17, 1997. What the assembled panel of experts – Professor Hope Babcock, author Elizabeth Brubaker, Professor David Schoenbrod and Professor Bruce Yandle – said about this issue constitutes the text that follows. The discussion was moderated by Michael Krauss, a professor at the George Mason University School of Law, and includes comments and questions from invited observers.

Among other things, the discussion considered the two extremes of the common law approach – that industry could be virtually shut down by nuisance injunctions or that, conversely, the costs of litigation could be so high that pollution would be virtually unchecked. The participants also touched upon the wealth effects of the distribution of rights and summed up by considering how common law logic might be made a part of the evolving regulatory regime.