Tort law, regulation and river pollution

One of the prices those of us who publish chapters in edited collections pay is that our writing often does not get the exposure it would were it published in a journal. So I'd like to bring special notice to a piece by Michael Lobban, "Tort Law, Regulation and River Pollution: The Rivers Pollution Prevention Act and its Implementation, 1876-1951", published in Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change, edited by TT Arvind and Jenny Steele (Hart, 2013). From the introduction:

By 1850, the massive urbanisation and industrialisation which Britain experienced over the previous century had generated unprecedented problems of pollution. The mid-century laissez-faire state, with its small central government and fragmented local regulatory bodies, was largely unprepared for these problems, and environmental protection was left in the hands of private litigants - usually wealthy landowners - invoking the common law. However, reform at both local and central level led to new regulatory systems being put in place from the 1870s, which promised to play a larger role in reducing pollution. The Rivers Pollution Prevention Act 1876... was part of this reform. It was a pioneering piece of legislation, the first general statute to deal with river pollution. Yet it has often been seen as a weak measure, which did little to improve river quality. Indeed, some historians have taken the view that it was drafted in such a way as to allow public authorities to hinder the more effective remedies against polluters which were available at common law.

How effective the common law could be in controlling pollution has long been debated among historians. According to JF Brenner, common law judges had no interest in using the law of nuisance to restrict industry, but rather sought to remould it - and emasculate it - to permit industry to develop. Brenner's view has been challenged by John McLaren. In his view, judges were far more divided on issues of policy than Brenner acknowledges. The predominant approach was one which recognised that the common law protected the right to clean water, but which also applied injunctions flexibly, given the practical difficulties of dealing with urban pollution. McLaren acknowledges the relative rarity of common law actions, but he attributes this to social and cultural factors, as well as the technical and financial difficulties faced by those who went to court, rather than to any doctrinal impediments imposed by the judiciary. McLaren's own view that the common law was not particularly effective has in turn been challenged by Ben Pontin, who argues that injunctions obtained by private law litigants could play a crucial role in forcing recalcitrant local authorities to spend money to improve sewage facilities. Leslie Rosenthal also argues that the common law could produce efficient outcomes, by inducing parties to enter into postlitigation negotiations.

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