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40 Ecology L. Currents 1 (2013)

handle is hein.journals/ecolwcur40 and id is 1 raw text is: The Obsolescence of
Environmental Common Law
R. Trent Taylor
Obsolescence, the process of becoming obsolete, is a staple of our lives in
the twenty-first century. As new and better technologies develop at a faster and
faster pace, our existing technologies-smartphones, televisions, computers-
become obsolete almost as soon as they are released to the public. Entire
technologies, like the fax machine, emerge rapidly and then disappear just as
quickly with the advent of a faster and easier alternative. With respect to
technology, we have come to expect, even welcome, obsolescence, as it carries
with it better alternatives.
The law, however, is another matter. By its very design, it is meant to
change slowly. Justice Benjamin N. Cardozo once said, the encroachments [to
the established common law] are so gradual that their significance is at first
obscured.' As a result, obsolescence is rare in the law. Once the law
incorporates a particular doctrine, it is slow to discard it. Indeed, legal treatises
of tort law published recently and those published hundreds of years ago show
many similarities.
Surprisingly, one of the oldest and most utilized areas of our legal system,
environmental common law, is currently on the verge of obsolescence.
Environmental common law dates back to the seventeenth century.2 It survived
the passage of seemingly comprehensive environmental statutes four decades
ago.3 Now, however, a series of court decisions from the past three years hold
that environmental common law actions, regardless of whether they are seeking
injunctive relief or monetary damages, are preempted and displaced by federal
statutes and regulations.
Copyright C 2013 R. Trent Taylor.
* R. Trent Taylor is a partner with the law firm ofMcGuireWoods, LLP in Richmond, Virginia.
His practice focuses on defending complex toxic tort and products liability cases with an emphasis on
public and private nuisance litigation and environmental contamination suits.
1. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 178 (1921).
2. See BRUCE YANDLE, COMMON SENSE AND COMMON LAW FOR THE ENVIRONMENT:
CREATING WEALTH IN HUMMINGBIRD ECONOMIES 88-90 (Roman & Littlefield 1977); see generally
Aldred's Case, 77 Eng. Rep. 816 (K.B. 1611).
3. Zygmunt J. B. Plater, From the Beginning, A Fundamental Shift of Paradigms: A Theory and
Short History of Environmental Law, 27 LoY. LA. L. REV. 981, 1002, n. 87 (1994) (noting that between
1969 and 1972, Congress enacted at least 34 malor environmental statutes).

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