April 23, 2019 Feature

Going Backward? Environmental Regulation through Tort Litigation

Graham C. Zorn, Casey T. Clausen, and Eric L. Klein

The concept of “environmental law” is a relatively recent construction. For most of Anglo-American legal history, actions to right environmental wrongs fell solely under the banner of tort law. Indeed, most law students’ first introduction to environmental liability comes from lessons on trespass and nuisance in first-year torts classes. A typical scenario in these cases involved an industrial operation polluting a neighboring property. For example, in the 1904 case of Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 658 (Tenn. 1904), several landowners sued a neighboring copper smelter in nuisance. The 1970s—with enactment and amendment of the country’s alphabet soup of environmental statutes, the first Earth Day, and creation of the Environmental Protection Agency (EPA)—marked the beginning of a new era of environmental regulation and liability through federal and state regulation and enforcement.

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