He Should at His Peril Keep it There: How the Common Law Tells Us that Risk Based Corrective Action is Wrong

Notre Dame Law Review, Vol. 76, No. 2, p. 341, 2001

33 Pages Posted: 12 Dec 2011

See all articles by Victor Byers Flatt

Victor Byers Flatt

Case Western Reserve University School of Law

Date Written: December 2001

Abstract

Many discussion of environmental policy have cleaimed that it needs to move towards a cost-benefit matrix. In particular, criticisms of CERCLA clean-up and other health exposure standards have suggested that we need to adopt a Risk Based Corrective Action (RBCA) in order to handle pollutant exposure most efficiently. However, these proposals miss an important aspect of such pollution exposure - the entity on which the cost falls is different from the one which may bear the clean-up cost. This entitlement shift is important and has value itself. Historically, our common law of torts in particular suggests that such entitlement shifting is not fair and not a part of our legal heritage.

Keywords: torts, CERCLA, RBCA, RCRA, risk based corrective action, common law, environmental law, pollution

JEL Classification: D30, D31, D60, D61, D62, D63, K13, K23, K32, L51, Q20, Q28

Suggested Citation

Flatt, Victor Byers, He Should at His Peril Keep it There: How the Common Law Tells Us that Risk Based Corrective Action is Wrong (December 2001). Notre Dame Law Review, Vol. 76, No. 2, p. 341, 2001, Available at SSRN: https://ssrn.com/abstract=1970964

Victor Byers Flatt (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

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