What is the background information provided by the author?
The current environmental regulatory regime led to widespread dissatisfaction. This is because the centralized command-and-control environmental regulation does not offer a reliable method for determining the optimal amount of pollution or finding the most efficient means of achieving the desired pollution level. This has resulted in various reform proposals and policy changes to increase environmental quality. One of the proposed reforms includes abandoning most of federal environmental regulation and returning to the common law environmentalism. This proposal has however received harsh criticism from most stakeholders in the environment sector who believe that the failure of state common law is what brought the need for federal legislation. However, the longstanding and widespread dissatisfaction with the current federal legislation makes it necessary to consider common law as a viable alternative for protecting environmental assets.
What are the main contributions of this article? Are the contributions significant?
The article argues that common law should be the optimal process of controlling environmental harms. The common law process should also be coupled with devolution of authority to the states. This will allow for more experimentation and learning chances leading to the discovery of better environmental policy. The significance of these contributions is that there will be opportunities to learn from experience and evolve by self-correcting policy mistakes. This makes it possible for common law process to avoid or change rules that impose greater harm than benefits to some parties through private ordering. Common law process also makes it possible to incorporate technological changes and advancements and adapt to societal preferences.
How the analysis is properly ground in the literature?
The main objective of any environmental policy is to find the optimal amount of pollution where the cost and benefit of social activities balance. However, the common law environmentalism process is not concerned with the determination of optimal pollution. The rules underlying the common law doctrine are created over a long period by numerous self-interested groups in an adversarial process that define and develops the expectations and rights of the common law courts. Thousands of judges from hundreds of jurisdictions make judicial decisions that are synthesized into common law rules (Butler, 2008). This jurisdictional comparison makes costs and benefits clearer resulting in improved environmental regulation. The jurisdictional competition also helps create a self-correcting mechanism through observation, learning, and experimentation across the jurisdictions. This enables common law to eliminate or change inefficient decisions through challenging of the originating jurisdiction or refusal by other jurisdictions to follow the inefficient law.
What are the limitations of the analysis and the author’s approach?
Common law environmentalism does not determine the optimal amount of pollution, instead, it relies on an approach assumes that the private ordering it facilitates will bring forward important information that will force common law rules to reflect the significant cost and benefit (Butler, 2008). The problem with this approach is that it relies on the incentives of self-interested groups and the judges involved in creating the common law doctrines not be biased as the legislators in the command-and-control regime. This is not correct as the litigants may withhold relevant information that may lead to changes in laws that favor them. The judges might also be subject to political shenanigans just like the legislators and bureaucrats in a centralized environmental regulation system.
What are the main conclusions?
Common law environmentalism is the best complement for the current centralized federal environmental regime. This is because common law environmentalism is based on sound science and constitutes of a jurisdiction law model as opposed to the blanket system of the centralized command-and-control environmental regulation (Butler, 2008). The jurisdiction model is more efficient in handling minor cases involving neighbors or small numbers of harmed property owners. However, no matter how efficient common law environmentalism is, it will still be met with harsh criticism from various environmental stakeholders invested in the current system. Even industrial companies that bear the heaviest burden of direct environmental regulation cost are unlikely to support the move to common law environmentalism. To convince these groups to support the move from central environmental regulation requires convincing them that common law and environmentalism will help policy makers develop better environmental policies that are in their best interest.
Where the analysis described in this article will lead and what the next step will be?
The analysis described in the article will lead to all self-interested litigants affected by environmental matters being involved in the development of environmental laws. There will be different jurisdictions with judges to create and enforce laws that are relevant to that jurisdiction. The laws will be changed regularly to conform to any new relevant information and technological advancement or changes. The next step will be creating of local jurisdictions that are affected by the same pollution issue. This would be followed by a selection of fair environmental judges to develop environmental laws to explicitly govern their jurisdictions.
Provide an example of how this approach could be used in real life
The common law environmentalism approach may be used to deal with issues of public nuisance in real life situations. Public nuisance is any substantial or unreasonable disturbances done by a person or organization that endangers the moral, comfort, health or even lives of the public or prevents the public from enjoying their rights. Cases against public nuisance can be brought by the person who has suffered damages or by the Attorney-General on behalf of the injured community. Common law environmentalism can be used to develop laws to protect certain local environmental resources from being subject to public nuisance. An example is a case where a mining industry let earth and slurry fall into a watercourse that the local people relied on for commercial fishing interfering with the watercourse’s fish stock. However, the commercial fishing operators were not awarded any claims because the watercourse was open to the public for fishing and thus the commercial fishing companies suffered no special loss.
Can you make any suggestions to make this paper better?
References
Butler, H. N. (2008). A Defense of Common Law Environmentalism: The Discovery of Better Environmental Policy. Case Western Reserve Law Review, 58(3), 705–752.
