Until quite recently it has been the accepted view that one of man's chief functions was to control and to exploit his environment. Only within the last year have most Americans begun to realize that we do not possess an inexhaustible supply of natural resources; that in fact the quality of man's life is threatened and perhaps his very existence. This public concern for the quality of our environment is beginning to be felt in the courtroom. Private citizens have attempted to preserve the livability of this country by bringing legal action against the federal government, the states, and private industry as well as the state and federal administrative agencies which are supposed to be protecting the environment. There are dozens of suits pending in federal and state courts involving environmental or pollution issues. These cases present a great diversity of legal theories ranging from constitutional claims to a pollution-free environment to more conventional theories such as nuisance or trespass. The whole area of environmental law is quite new and sometimes confusing because lawyers and courts have not yet settled on any one best legal theory that will accomplish the goal of protecting the environment. This comment is an attempt to bring together these diverse theories and to explain some of the legal concepts in this developing area of environmental law. The first part of this article will deal with the structure of the common law doctrines of nuisance, trespass and riparian rights and their adaptability to the control of pollution. In recent years there has been a sharp decline in the number of common law decisions reported in the environmental field. Nevertheless, an understanding of the common law is vital because it forms the basis of statutory regulation. While the state and federal regulatory agencies now have the dominant role in managing our environment, the common law supplements this body of statutory law. Secondly, this comment will consider procedural difficulties (primarily the standing requirement) encountered by private litigants trying to participate in the administrative process. Lastly, there will be a discussion of new theories for creating substantive rights in environmental quality.
Patrick E. Murphy,
Environmental Law: New Legal Concepts in the Antipollution Fight ,
36 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol36/iss1/8