Legal actions can lead to recovery for damages to land as well as to recovery for ... protection of underground water and land, and protection against air pollution"

"Jane S. Shaw Series Editor

"Empowering those most directly affected by pollution,
common law property rights protect powerfully,
preventing polluters from arbitrarily fouling streams
or spewing poisons onto neighboring property."

-- Elizabeth Brubaker
Property Rights in the Defense of Nature

Introduction

Unless you are well into middle age or were a precocious student, you probably have little memory of the United States without the Environmental Protection Agency and the host of federal statutes it implements. 

Most Americans presume that the environment is something the government must control to protect. Without government control, they think, we would return to the frightening days of burning rivers, dying lakes, people fleeing their homes at Love Canal, and thick smog filling the air that little children breathe.

Politicians have fostered this notion, and academics of many stripes have supported it. But they are ignoring, in some cases deliberately, a long history of environmental controls through common-law protections. 

Common law is the term we use for the legal rules and traditions that have been developed over time through court decisions.

The purpose of this PERC Policy Series paper is to show, by examining specific cases in American and English history, that strong legal traditions enabled ordinary citizens to protect their air, land, and water, often against politically potent parties. Even public law officials, such as attorneys general, used the common law to protect citizens against environmental dangers. Unfortunately, as we will see, statutory regulation has largely supplanted the common-law legal regime that once provided solutions for many environmental problems.

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The Law of the Land

Students are taught that the Constitution was the document that founded the nation and that it is "the supreme law of the land." In fact, however, the founders viewed the common law--the rules and traditions embodied in court decisions--as the law of the land (Sherry 1987). As Harvard law professor Harold Berman (1961, 12) notes, an important part of the founding of the Republic "was the reception of the English common law . . . together with certain English statutes." Common law reflected the view that free people must take responsibility for their actions and must be held responsible for their actions, with the courts providing an important avenue for holding them accountable. Many state constitutions expressly adopted the English common law.

Today, in contrast, law is mostly regulatory management. Citizens and their lawyers negotiate, arbitrate, and litigate with the many arms of the pervasive regulatory state. This arrangement is fundamentally different from the founders' understanding of the relationship between people and their government.

Most of the chipping away of the traditional common-law regime has been done in the guise of the environmental "crisis." No doubt there would have been stronger opposition had not the "crisis" excuse been so strong.

To begin to untangle the regulatory web that has overwhelmed the common law, we will look at how the common law worked to allow people to protect themselves against pollution, whether of water, air, or land. To do this, we will summarize cases that reflect the state of the law in the supposed dark days before the advent of environmental activism. Then we will consider what problems there were with the common law and why it was so broadly supplanted by statutory regulation."

- See more at: http://perc.org/articles/common-law-0#sthash.q6wm2p2g.dpuf