Decentralizing Environmental Administration: A Common Law Approach
Abstract
This paper intends to explore whether government regulation hinders rather than serves the goals of environmentalism by inhibiting possible free market mechanisms. The primary focus will be upon the tort aspects of environmental law, and whether these might be expanded to allow for litigation to serve as both the arbiter and the primary deterrent mechanism for environmental torts. In order to accomplish such a system, the viability of two current facets of environmental regulation will be examined.First, the imposition of environmental standards by centralized federal agencies will be examined to the extent that they limit efficiency and local responsiveness. The intention is to explore whether allowing state courts and local governments to administer environmental law will have the effect of opening up litigation and producing more reactive local results. Second, the institution of limiting standing to government actors, especially with regard to the Lujan decision will be examined as a mechanism that provides polluters a potential escape where government resources fail. Further, creating a generalized property right in environmental interests will be presented as a solution to the standing question. The aim is to determine the effect of centralized administration in preventing pollution control as well as presenting decentralization as a more effective and efficient means of pursuing this goal. Finally, the paper will present four suggestions for addressing some of the faults of the current regulatory system: empowering state courts to litigate environmental disputes to replace the federal regulatory system; loosening restrictions of standing; imposing a private damages regime; and applying strict liability to environmental claims.
The paper will draw from United States jurisprudence on environmental law as well as drawing heavily from scholarly writing on environmental law and the economics of environmentalism.
References
[2] Bastiat, Frederic. 2007. The Bastiat Collection, Ludwig von Mises Institute.
[3] Baumol, William J. 1972. On Taxation and the Control of Externalities. The American Economic Review, 62(3): 307 – 322.
[4] Birnhack, Michael. 2004. Private Ordering Principles. Working Group of Private Ordering of Israeli Internet Association. 2-3 (February 2004).
[5] Block, Walter. 1972. Defending the Undefendable, Fox and Wilkes, New York.
[6] Butler Henry N. 2008. A Defense of Common Law Environmentalism: The Discovery of Better Environmental Policy. George Mason University School of Law. Case Western Reserve Law Review. Vol. 58, No. 3: 705 – 752, Spring 2008
[7] Coase, Ronald H. 1960. The Problem of Social Cost. Journal of Law and Economics, 3: 1 – 44.
[8] Cordato, Roy E. 1980. The Austrian Theory of Efficiency and the Role of Government, The Journal of Libertarian Studies Vol. IV(4): 393 – 403.
[9] Dougherty, Will et al. 2010. Environmental Enforcement and the Limits of Cooperative Federalism: Will Courts Allow Citizen Suits to Pick up the Slack? 1-62, 7.
[10] Driesen, David M. 2010. Alternatives to Regulation? Market Mechanisms and the Environment, In: Robert Baldwin et al. (Editor) The Oxford Handbook on Regulation. Oxford University Press.
[11] Hayek, Friedrich A. 1944. The Road to Serfdom. London and Henley, Routledge and Kegan Paul, (1976).
[12] Hylton, Keith N. 2002. When Should We Prefer Tort Law to Environmental Regulation. Washburn Law Journal, 41: 515 – 534.
[13] Kanner. Allan. 2002. Toxic Tort Litigation in a Regulatory World. Washburn Law Journal, 41: 535 – 548.
[14] Meiners, Roger, and Yandle, Bruce. 1998. Common law and the conceit of modern environmental policy. George Mason Law Review, 7: 923.
[15] Mineta, Norman Y. 2004. Research and Special Programs Improvement Act of 2004, Pub. L. No. 108-426. (Nov. 30, 2004).
[16] National Park Service, Mississippi River Facts, available at http://www.nps.gov/miss/riverfacts.htm. (last visited Apr. 11, 2013).
[17] Ricardo, David. 1817. On the Principles of Economy and Taxation, John Murray, London.
[18] Robbins, Lionel. 1932. An Essay on the Nature and Significance of Economic Science.
[19] Rothbard, Murray N. 1990. Law, Property Rights, and Pollution. The Cato Journal, Vol. 2 No. 1 (Spring 1982). Reprinted in Ed.: Walter E. Block, Economics and the Environment: A Reconciliation. 233-265, 236 (1990).
[20] Rothbard, Murray Newton. 1962. Man, economy, and state. Vol. 2. New York: D. van Nostrand.
[21] Rothbard, Murray. 1998. The Ethics of Liberty, New York University Press.
[22] Scalia, Antonin. 1998. A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law. Princeton University Press.
[23] United States House of Representatives, Committees, available at http://www.house.gov/committees/. (last visited May 10, 2013).
[24] United States Senate, Committees, available at http://www.senate.gov/pagelayout/committees/d_three_sections_with_teasers/committees_home.htm. (last visited May 10, 2013).
[25] von Mises, Ludwig. 1945. Bureaucracy, Yale University Press.
[26] Weiland, Paul S. 2000. Federal and State Preemption of Environmental Law: A Critical Analysis. The Harvard Environmental Law Review, 24: 237 – 286, 240.
Keywords
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