The 'environmental' problems considered here include injuries to persons, property or the environment caused by the
discharge of air and water pollution and by the discharge and disposal of solid and liquid wastes.
This paper will focus on four classic environmental tort actions: private nuisance, trespass, public nuisance and
Law and economics scholars, drawing on concepts of economic efficiency, stress deterrence and assess the creation
of appropriate incentives to take cost-justified precautions.
The analysis of inputs determines the theoretical assumptions that are required for the tort system to provide optimal
deterrence, and examines whether those assumptions are satisfied by legal doctrines and empirical facts. This is
followed by an analysis of outputs which ex-amines actual performance in a number of specific pollution problems,
attempting to identify the changes in behaviour that the tort system has induced, and examining whether these
changes are significant, and if so whether they are optimal.
Because the victims are not in a market relationship with the polluter, payment by the polluter will arise only if the
tort system compels it, or if a government agency imposes liability
US and Britain: Private Nuisance
Unreasonable conduct is determined by 'balancing the equities' which allows the court to consider, among other
things, the social utility of the polluting activity. Under this flexible doc-trine, which emerged during the 19th
century, nuisance law in the United States (as in Britain) posed little threat to industrialization, eventually allowing
terrible environmental damage (Brenner, 1974). In the US there is a defence for 'coming to the nuisance' which often
bars actions by plain-tiffs arriving after the discharge was established.
Unlike private nuisance, there is no defence associated with the reasonable con-duct of the defendant, or with the
plaintiffs having arrived after the defendant. Thus trespass may be available in some cases when private nuisance is
The law of public nuisance may be used to address violations of a general interest in environmental quality through
an action brought by the government rather than by a private individual. Individual must demonstrate that their
losses differ in kind, not quality, from those of the rest of the community. Public nuisance is broader than private
nuisance and can be applied to interference with public health, public com-fort, and public convenience. The harm
must be widespread and substantial. However private individuals may sue only if they suffer damages different in
kind from those of the general public, and governments rarely sue, so this doc-trine is of little effect
Negligence actions may be applied regardless of proprietary interest, requiring only that the defendant owed a duty
of care to the plaintiff, that he or she failed to meet the legal standard of care, and that this failure caused injury to