Modern Environmentalists Overreach: A Plea for Understanding Background Common Law Principles

One of the major issues of our time involves the institutional arrangements that should be introduced in response to damage caused by various forms of pollution. In dealing with this issue, there is widespread agreement that pollution from natural sources is a risk to be controlled, and that pollution from human sources creates dangers that are the proper subject of legal constraint, be it by government regulation, state or federal, or by private rights of action under either federal or state law, brought individually or by classes. Any supposed laissez-faire regime that would leave the question of pollution to the "market" is no more plausible than a laissez-faire regime that assumes that the state need not supply some remedy against other forms of aggression that one individual takes against the rest of the world. The only question here is that of technique, which leads those interested to worry about two primary issues. The first involves the proper analytical framework to deal with environmental issues. And the second deals with the distinctive treatment of some specific issues in environmental law. In both areas, it is critical to be attentive to the incentives that the rules create for opportunistic behavior on all sides, the risks of over-and under-enforcement of environmental safeguards, and the administrative costs of putting any complex regulatory scheme into place. The level of choice raised by these issues is not inconsiderable. In particular, this Essay presents extensive differences with Professor Blais's argument (1) that extend to virtually every point of institutional design outside her general condemnation of pollution as a species of harmful conduct. (2) Before responding to these issues directly, the first Part of this Essay puts the common law framework into perspective and analyzes the role that a correct understanding of both the just compensation principle and the harm principle plays in the overall analysis. Thereafter, the second Part addresses three particular issues: the use of injunctions, the role of knowledge as a form of assumption of risk, and the dangers of environmental exactions. I. BASIC FRAMEWORK A. The Common Law Approach The major intellectual challenge in this area is whether it is possible to organize a system of property rights that deals with the larger question of pollution that outperforms the articulation of the common-law rules, as they apply to both public and private nuisances. (3) The answer to that question is that the law cannot do better. Therefore, the function of the federal or state governments in these issues ought not to be, in effect, to create a brave new world of weird and uncertain entitlements. Environmental entitlements, such as those that have been created for dealing with wetlands or endangered species, list the preservation of habitat as a nuisance and pollution issue rather than a takings issue, which is how it ought to be classified. Legal modesty should be the order of the day. The role of government at all levels should be to improve the enforcement of the set of entitlements already in place by using collective enforcement actions when the disorganized actions of private individuals are insufficient to deal with pollution risks. One way to make the point is to turn for a moment to the famous fire on the Cuyahoga River in Ohio in 1969. (4) The fire was caused by an oil slick in severely polluted water and caused tens of thousands of dollars worth of damage. (5) The source of the evident institutional breakdown that led to this dramatic event is as follows: The local governments, often subject to political pressure by their major industrial constituents, did not enforce the standard legal rules, set in place to deal with the private creation of public nuisances. (6) The lax enforcement of these rules led to private parties treating valuable public resources as a useless dump in which they could deposit their waste without limit and resulted in private gain at public expense. …