Common Law Environmental Protection

Today there is widespread dissatisfaction with many aspects of federal environmental law. The apparent success of early environmental regulations notwithstanding, many analysts and academics have begun to reexamine the potential of common law causes of action to supplement, if not supplant, portions of the existing regulatory regime. Yet whatever the failings of the environmental regulatory state, the common law has failings of its own, including the failure to protect many ecological resources in the period before the enactment of federal environmental law. This essay is the introduction to a paper-only symposium on Common Law Environmental Protection, forthcoming in the Case Western Reserve Law Review. The purpose of this symposium is to further the critical analysis and examination of the potential for common law remedies to address environmental concerns. There is now a foundation in the legal and economic literature on the role of the common law in addressing environmental issues, including some critical commentary on common law solutions. The literature is far from comprehensive, however. This symposium is intended to help fill this gap by identifying the potential promise and pitfalls of relying more upon common law approaches to environmental protection and identifying how common law environmental protection may be achieved