Before the EPA got into the act, pollution controls were provided by the common law.
"In the past, people who allowed something noxious to escape their control and invade the property of others could be held accountable through legal actions for trespass and nuisance," recall Roger Meiners of the University of Texas and Clemson's Bruce Yandle. "This protection," they note, "was extended to water quality through riparian rights, which allow water users the right to the use and enjoyment of water."
Writing in a recent issue of PERC Reports, published by the Political Economy Research Center, Professors Meiners and Yandle point out that in pre-EPA days "municipalities and firms knew that, if they substantially polluted their neighbors' water, they could expect to be found liable. To minimize liability, water polluters installed pollution control devices. Paper mills in Wisconsin routinely owned miles of downstream river property, knowing that otherwise they would be liable for violation of riparian rights. Such common-law protection," say Meiners and Yandle, "applies to all who have the right to use the water, for purposes including recreation." They note that sport fishermen in England "have long protected water quality through private litigation brought by angling associations."
Meiners and Yandle admit that the common-law approach had shortcomings. "Some courts," they concede, "would rule for polluters, holding that the economic benefit of a factory that employed many people outweighed the damage to a few property owners. Some courts held that pollution was just a fact of modern life and necessary for progress to occur. The courts," the two professors acknowledge, "were not always consistent in their decisions."
Meiners and Yandle also confirm that "legal action is always costly" and that "multiple polluters that each inflict low levels of damage are unlikely to be held liable -- especially when the damage is shared by many. For that reason," they say, "problems with air pollution caused by automobiles cannot be handled effectively through common-law courts. Injuries and harms that come after long gestation periods present another challenge," Meiners and Yandle continue. "While parties who can show evidence of injury or imminent harm may have a common-law cause of action, efforts to obtain injunctions for speculative harms such as future cancer are not generally successful. However," they emphasize, "we cannot know how the law might have evolved had it not been pushed to one side by regulation."
With that thought in mind, Meiners and Yandle recommend "a return to the regime that served us well in the past and that has shown signs of evolving as knowledge and environmental concerns changed. The common law provides harsh penalties against firms that disregard the rights of citizens by exposing them to harms," they observe. "Indeed, when real harm is inflicted, citizens get far better relief through common-law suits than they do from appeals to the Environmental Protection Agency." Meiners and Yandle predict that someday "citizens will recognize that the common law . . . can protect the environment more effectively and fairly than can congressional statutes and bureaucratic regulations."
