When Should We Prefer Tort Law to Environmental Regulation?
18 Pages Posted: 26 Sep 2001
Date Written: 2001
This paper, prepared for the 2001 Washburn Torts Seminar, argues that tort law has some properties that make it superior to statute-based regulatory schemes as a system of environmental protection. In particular, two arguments, one based on enforcer-malfeasance and one based on information, suggest that tort law is preferable to statutory regulation. I sketch these arguments and apply them to nuisance law. The result is a set of conditions or rules-of-thumb for determining where tort law is preferable to environmental regulation. The framework implies that emission standard regulation can and should be implemented without preempting nuisance law.
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