PERC Policy Series: May 1998

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The Common Law:

How It Protects the Environment (No. 13)

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Long before there was an Earth Day, people protected the quality of their air, streams, and land through common-law court cases. This approach was more successful than people usually think and offers an alternative to still more government regulation, say Roger E. Meiners and Bruce Yandle in a path-breaking new paper, "The Common Law: How It Protects the Environment."

Meiners and Yandle review English and American legal history to show the environmental protections available to individuals. "Those who allowed something noxious to escape their control and invade the property of others could be held accountable for their actions through private litigation," they write.

This new paper is bound to evoke controversy. It implies that the current regulatory scheme should be overhauled and we should return to a system that gives private court suits a bigger role in environmental protection, and statutory law a smaller one. "Eventually, citizens will recognize that the common law, bolstered by local regulation, can protect the environment more effectively and fairly than can congressional statutes and bureaucratic regulations," write Meiners and Yandle.

Even today in England, many streams are protected through private actions by fishing clubs, and in the United States court cases allow individuals or groups to recover damages from oil spills, chemical leaks, and other pollution. Such legal action creates a strong incentive to avoid pollution--stronger, say Meiners and Yandle, than the myriad of regulations that have largely supplanted the common-law tradition.

 

 

 

"Progress toward improving our environment cannot solely rely on environmental regulations."