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A Defense of Common Law Environmentalism: The Discovery of Better Environmental Policy

50 Pages Posted: 20 Dec 2010 Last revised: 16 May 2013

Henry N. Butler

George Mason University - Antonin Scalia Law School, Faculty

Date Written: 2008


A major problem with the current environmental regulatory regime is that it does not provide a reliable process for determining or discovering either the optimal amount of pollution or the most efficient means for achieving the selected level of pollution. This Article explains how the common law process, when coupled with competitive federalism, spontaneously leads to the discovery of better environmental policy. This analysis suggests that common law rules should be the presumptively optimal method of controlling local environmental harms. Common law processes allow for greater experimentation and innovation than do set and rigid statutory rules. Unlike rigid rules, the common law provides opportunities to adjust to changes in technology and societal preferences and to learn from experience. Part of the adjustment process is through private contracting. The common law evolves by self-correcting policy mistakes, whereas there are no such self-correcting mechanisms in centralized command-and-control regulations. Command-and-control bureaucrats and legislators are often oblivious to changes inherent in a dynamic world, but common law environmentalism and jurisdictional competition provide a dynamic process through which policy options are discovered and discarded in response to the reality of perpetual changes in technology and political preferences. The current regulatory regime is strengthened and reinforced by the common law - but making bad policy stronger is not a logical reason for championing the common law. The current regulatory regime constrains the evolution of the common law and thus limits the ability of the common law to evolve and discover better environmental policy. The benefits of common law environmentalism are likely to be even greater when coupled with devolution of authority to the states, thereby allowing greater opportunities for experimentation and learning from other jurisdictions. Many of the standard criticisms of common law environmentalism are overstated. In particular, the common law failure that motivated federal intervention is largely irrelevant to current debates about the virtue of the common law.

Keywords: bureaucratic empire building, Carroll Towing, Darwinian forces, externalities, Frank Cross, free market, Harold Demsetz, interaction, Keith Hylton, Learned Hand, malfeasance, norms, ordering, protection, Pigovian, property rights, Richard Posner, rent seeking, Ronald Coase, welfare economics

JEL Classification: K21, K23, K32

Suggested Citation

Butler, Henry N., A Defense of Common Law Environmentalism: The Discovery of Better Environmental Policy (2008). Case Western Reserve Law Review, Vol. 58, No. 3, p. 705, Spring 2008; George Mason Law & Economics Research Paper No. 12-46; ERC Research Paper No. 12/8. Available at SSRN:

Henry N. Butler (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8644 (Phone)

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