Lost in the Translation: What Environmental Regulation Does that Tort Cannot Duplicate

Abstract

Environmental regulation has been under sustained attack by critics who claim that tort law can replace it and do a superior job. This essay summarizes three key distinctions between environmental regulation and tort that prevent tort from being an adequate replacement for regulation - one procedural, one remedial and one substantive. With respect to process, environmental regulation determines levels of environmental quality through public processes and collective choices, rather than as the aggregation of a series of private decisions. Switching to tort thus requires the public to relinquish an important decision making authority. With respect to remedies, environmental regulation is designed for prevention rather than cure. The modern environmental era is founded on a principle of prevention. With respect to substance, the levels of environmental quality that our current environmental statutes embody cannot be achieved by tort, because those collectively chosen levels differ from the cost-beneficial levels of environmental quality tort is geared to achieve.

The two regimes must also be evaluated in practical terms. We want a regime that will actually achieve good environmental quality results, and certainly the present environmental regulatory system falls far short of achieving the goals that have been set for it. A tort system, even if not designed with the modern ends of environmental law in view, might do better than a flawed regulatory system. While not attempting a complete comparative analysis, this essay suggests reasons to be skeptical of this claim as well. Tort faces enormous difficulties in resolving disputes over environmental risks that have diffuse origins as well as diffuse effects. Some of the most pressing, emerging environmental problems exhibit these characteristics. Tort will not be able to cope with them adequately.

JEL Classification: H4, K13, K32