Though legal scholars have long recognized the general deterrent effect of tort on firms’ level of risk-taking regarding the environment, courts have been hesitant to affirm tort’s role as an environmental policy tool. In this paper, I apply the theory of polycentric governance developed and expounded by Vincent and Elinor Ostrom and others to tort law in the area of environmental governance. In doing so, this paper examines North Carolina v. Tennessee Valley Authority 615 F.3d 291 (4th Cir. 2010) and several other preemption cases to show how tort can operate as an effective polycentric governance institution, characterized by a complex web of interactions between courts at both the state and federal levels. The Fourth Circuit in NC v. TVA found that the Clean Air Act preempts nuisance litigation brought by North Carolina against TVA electricity plants in Alabama and Tennessee in spite of the Act’s preservation of state liability law. That states may enact stricter environmental protection standards than those established in federal regulations, though, is a common feature of federal environmental law. This paper finds fault with the Fourth Circuit’s preemption analysis, arguing that the preservation of state liability law in federal statutes is a sound policy choice given the tort system’s affinity for information gathering, providing compensation for victims, and other attributes that complement federal regulation.
Abelkop, Adam D. K., Tort Law as a Nested Polycentric Environmental Governance Institution (April 1, 2013).