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There are two broad models of regulation: statutory schemes carried out by administrative agencies with the help of public enforcement agents, and highly discretionary common law rules developed over time through litigation. Environmental regulation is dominated by the first model, with relatively little of it done through litigation of tort claims. The reason may be largely historical: tort law has always been viewed as local in design and impact, while environmental law has always had a global aim. But it need not be this way. More than anything, tort law has been flexible, and thus capable of responding to new problems. I will argue that tort law has some important properties that make it superior to statute-based regulatory schemes as a system of environmental protection. In the end, I will not argue that environmental law should be scrapped in favor of tort law. However, I hope to lay out some general rules for determining where tort law is potentially superior to statutory regulation.
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