The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue public health and environmental protection and militate against effective private-law remedies for environmental torts. This Article advocates flexible and pragmatic common-law techniques instead of law-and-economics analysis. Moreover, behavioral economists’ studies have undermined and qualified many law-and-economics theories. In addition to arguing for more and better injunctions, this Article criticizes the law-and-economics mindset that nuisance-trespass parties’ post-injunction negotiation will convert an injunction into an excessive money settlement. It also shows that the Cathedral article’s vocabulary and four-rule organization are both too long and too short as well as confusing and misleading.
Rehabilitating the Nuisance Injunction to Protect the Environment
March 17, 2019