by 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.
Photo credit to umjanedoan.
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. It survived the passage of seemingly comprehensive environmental statutes four decades ago. 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.