When Should We Prefer Tort Law to Environmental Regulation?

Abstract

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.