The role of common law in environmental policy

This paper discusses the role of common law in environmental policy. It is shown that common law actually tends towards efficiency only under quite restrictive conditions — conditions that are fulfilled only for very few, less important environmental problems. Moreover, in these cases common law need not even be efficient because an efficient solution can be negotiated once the allocation of rights is undisputed. Furthermore, common law neglects important distributional and political questions and is biased towards the status quo. Therefore, dealing with today's environmental problems cannot be left to the common law process but necessitates legislative action.