Judicial Protection of the Environment: A New Role for Common-Law Remedies

There is a tendency today to look to the legislatures to provide the cure for all environmental maladies,\u27 and to overlook or underrate the potential of common-law remedies to assist in the proper solution of these problems. Although it is undoubtedly true that in some jurisdictions the common-law remedies have been interpreted so restrictively as to make them practically useless as tools for environmental protection, a number of forward-looking courts are developing and applying the law in a way much more favorable to the environment. Other courts that have remained uncommitted may be in a position to follow current trends in the use of common-law remedies for environmental protection. Hopefully, this survey will suggest additional possibilities for relief in jurisdictions where the statutory remedies are failing, often because of insufficient funds for adequate enforcement. Furthermore, even in those jurisdictions with effective statutory remedies for the protection of the public interest, common-law remedies still may provide the best, or indeed the only, means by which an injured individual can be personally compensated