Is the Common Law the Free Market Solution to Pollution?
Jonathan H. Adler
Case Western Reserve University School of Law; PERC - Property and Environment Research Center
March 21, 2012
Critical Review, Vol. 24, No. 1, 2012
Case Legal Studies Research Paper No. 2012-9
Free market environmentalism (FME) analyzes environmental problems as property rights problems. Whereas conventional analyses characterize environmental problems as examples of 'market failure,' FME diagnoses point to the lack of markets, and in particular a lack of enforceable and exchangeable property rights. This approach works well with many, if not most natural resources. The case for FME approaches to pollution problems is much weaker, however. Most FME proponents suggest that common law tort suits can adequately protect private property and ecological resources from environmental harm. Yet such claims have not been substantiated. The case for the common law as an effective substitute for pollution control regulation has yet to be made. Much work needs to be done before the common law, or regulatory reforms grounded on common law principles, can be seen as a viable alternative to traditional environmental regulation.
Number of Pages in PDF File: 42
Keywords: environmental law, free market environmentalism, property rights, pollution, tort law, common law, nuisance, administrative regulations
JEL Classification: K23, K32
Date posted: March 23, 2012