Common law and the environment: Reply

Abstract

I feel extremely honoured that my modest contribution (Sillner, 1994) has been found interesting enough to be discussed on the pages of this journal. Especially, I am grateful to Reimund Schwarze whose comment (see pp. 201-205), has given me the opportunity to clarify some issues which might possibly have given rise to misunderstandings. First of all, let me emphasize that my article contrasted common law with statutory law, not private law with public law. Contrary to what Schwarze sometimes seems to insinuate, I did not doubt the important role of liability in environmental policy; I advocated, however, statutory liability instead of common law rules. I thought I made this sufficiently clear (Sillner, 1994: 80, n. 2), but maybe I should have been more explicit. My critique of common law is based upon, first, its inefficiency in the case of many, and the most important, environmental problems (section 3 of my article) and, second, upon its too narrow focus (section 4 of my article). Schwarze finds faults with both of my arguments. As to his comments on the first one, I have to admit that my discussion might have left the impression that the small-number cases are unimportant and do not merit economic analysis. I surely did not mean to imply this and I agree with Schwarze on the economic relevance also of small-number cases. On the other hand, I do not find his arguments in favour of the efficiency of common law in large-number cases very convincing: in fact, all the examples he gives go to show that common law is in itself insufficient to deal with environmental problems affecting large numbers of people: The Exxon Valdez rulings, e.g., would probably have been impossible without statutes such as CERCLA which standardized and simplified the complex and cumbersome judicial procedure of liability (Dunford, 1992). The enactment of these statutes was motivated, inter alia, by the very failure of common law in similar cases: For example, the trial of the 1977 Amoco Cadiz oil spill has got nowhere for more than a dozen years (Tietenberg, 1992: 13-14). For the issue at hand it is decisive that the codification of liability in CERCLA (and, later, in the Oil Pollution Act) was thought to be necessary, and not that Congress for that purpose drew upon otherwise proven common law doctrines indeed, in a common law country