Environmental Law 101 | Richard Epstein

Back in 1999, Richard Epstein wrote a great summary of what should be environmental law from an old common law perspective, from a classical liberal perspective, and a pragmatic economic libertarian perspective:

Stated bluntly, nothing in the theory of property rights says that my property is sacred while everybody else’s property is profane. That single constraint of parity among owners should lead every owner to think hard…

This recognition of the noxious uses of private property is the source of the common law of nuisance.

That law dates from medieval times, certainly by 1215, at the time of the Magna Carta. It is no new socialist or environmentalist creation for the twentieth century.

When the common law of nuisance restricts the noxious use of property, it benefits not only immediate neighbours but the larger community. If I enjoin pollution created by my neighbour, others will share in the reduction of pollution.

Simply by using private actions, we have built a system for environmental protection that goes a long way toward stopping the worst forms of pollution.

Epstein does not stop there. He recognises as he should that the common law of nuisance is not enough to stop all problems of pollution:

Yet before we leap for joy, we must recognize that private actions are not universally effective in curbing nuisances.

Sometimes pollution is widely diffused—waste can come from many tailpipes, not just one—so that no one can tell exactly whose pollution is causing what damage to which individuals.

Under those circumstances, private enforcement of nuisance law can no longer control pollution…

We do not change the substantive standards of right and wrong, but we do use state regulation to fill in the gaps in private enforcement.

Epstein then makes a plea for private covenants to deal with a great deal of the social frictions that arise in the suburbs:

But often when individuals worry about their local environments, they’re not particularly happy to treat the nuisance law, however enforced, as the upper bound of their personal protection.

They want (especially as their wealth increases) more by way of aesthetics and open spaces. Fortunately, our legal system has a way to accommodate these newer demands.

One of our most important land-use control devices is the system of covenants by which all the holders of neighbouring lands agree among themselves and for their successors in title

Covenants might work in Greenfields developments in modern cities. But they really doesn’t work in managing land use conflicts in the inner city where regulation is been used to substitute the covenants for many decades.

Epstein’s ideal for modern environmental law is:

In sum, the system of public and private enforcement of nuisances and public and private purchases of environmentally sensitive sites is the way that sound environmental policy should proceed.

via Environmental Law 101 | Hoover Institution.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Science Matters

Reading between the lines, and underneath the hype.

Uneasy Money

Commentary on monetary policy in the spirit of R. G. Hawtrey

The Market Monetarist

Markets Matter, Money Matters...

The Inquiring Mind

“Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it.” Thomas Paine - "Limitation is essential to authority. A government is legitimate only if it is effectively limited." ~ Lord Acton - Commentary on what interests me, reflecting my personal take on the world

Point of Order

Politics and the economy

New Historical Express

(Formerly Hatful of History)

Economics in the Rear-View Mirror

Archival Artifacts from the History of Economics

Truth on the Market

Scholarly commentary on law, economics, and more

Stockerblog

Philosophy, Politics, Culture from Barry Stocker, British philosopher based in Istanbul

Organizations and Markets

Economics of organizations, strategy, entrepreneurship, innovation, and more

John Quiggin

Commentary on Australian and world events from a socialist and democratic viewpoint

The Antiplanner

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Pedestrian Observations

For Walkability and Good Transit, and Against Boondoggles and Pollution

Bet On It

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Trade Diversion

Commentary on development, globalization, and trade by Jonathan Dingel.

Movie Nation

Roger Moore's film criticism, against the grain since 1984.

Conversable Economist

In Hume’s spirit, I will attempt to serve as an ambassador from my world of economics, and help in “finding topics of conversation fit for the entertainment of rational creatures.”

AwayPoint

Between An Island of Certainties and the Unknown Shore

Weapons and Warfare

History and Hardware of Warfare

fportier.wordpress.com/

Franck Portier's professional page

NZCPR Site

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Anti-Dismal

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Bowalley Road

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

History of Sorts

WORLD WAR 2,EIGHTIES,MUSIC,HISTORY,HOLOCAUST

Tudor Chronicles

News, reviews and talk all about the Tudors

Karl du Fresne

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Roger Pielke Jr.

an undisciplined academic - @RogerPielkeJr on Twitter

Great Books Guy

Reading The Classics

@STILLTish. Gender Abolition

Examining Gender Identity ideology and its impact on Women's Sex based rights and Gay Rights. Exploring how this has taken such firm root in Western societies (Cognitive & Regulatory Capture).

200-Proof Liberals

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

What Paul Gregory is Writing About

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Offsetting Behaviour

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

JONATHAN TURLEY

Res ipsa loquitur - The thing itself speaks

Conversable Economist

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

Barrie Saunders

Thoughts on public policy and the media

The Victorian Commons

Researching the House of Commons, 1832-1868

Coyote Blog

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

The History of Parliament

Blogging on parliament, politics and people, from the History of Parliament

Books & Boots

reflections on books and art

Legal History Miscellany

Posts on the History of Law, Crime, and Justice

Sex, Drugs and Economics

Celebrating humanity's flourishing through the spread of capitalism and the rule of law

%d bloggers like this: