OPINION/COMMENTARY

Fables of Federal Regulation

You've heard the story. Industrialization and economic growth laid waste to the American environment through much of the twentieth century. Common lawbased environmental protections were ineffective, and state and local governments were unable or unwilling to address environmental concerns. As a result, environmental quality was in continuous decline until comprehensive federal legislation was adopted in the late 1960s and early 1970s. The infamous 1969 Cuyahoga River fire and the massive oil spill off the coast of Santa Barbara focused public attention on the nation's environmental plight and helped spur the passage of needed federal environmental laws. This is the conventional account of the origins of federal environmental law. It is a story often told to explain how the nation moved from a mix of property-based, common law rules and state and local regulations to a sprawling federal regulatory apparatus. But it is wrong. The conventional narrative of the origins of federal regulation is a fable....