Courtesy Reuters

Pollution: Precedent and Prospect

The same environmental concerns that have found public and political voice in the United States over the past five years have emerged in other countries and governments and in international organizations as well. For the most part, however, international action has not yet taken an effective form. The organizations and individuals who have attempted to identify aspects of pollution that have international effects have done so with varying success. Their efforts are characteristic of our own examination of pollution problems: two conflicting definitions of pollution and correspondingly conflicting approaches to pollution control repeatedly emerge. A dispute continues between the absolute duty to release nothing harmful and the relative duty to do no more harm than is reasonable under the circumstances.

To eliminate all forms of pollution would be expensive, and would require curtailing pleasures or profits to which we have become accustomed. But advocacy of this approach does not raise a new issue; it continues a traditional struggle within Anglo-American law. The adversaries typically are, on one side, a manufacturer who operates a factory that produces a useful product and furnishes employment but gives off dust, smells, noise or filth, and, on the other, a complaining neighbor, or downstream landowner. The manufacturer argues that he has as much right to use the air or the stream as a repository for waste as the neighbor has to breathe the air or drink water from the stream.

Judicial citations of Latin maxims have the historical charm of telling us that men have been arguing a particular point since Lancastrian or even Roman antiquity. In the kinds of disputes we have described, the recurrent maxim has been: Sic utere tuo ut alienum non laedas. "Use your own property in such a manner as not to injure that of another."

In the mid-eighteenth century, Sir William Blackstone quoted the maxim as the foundation of the law of nuisance. He gave a series of illustrations: "To build a house so close to another's that rainwater from

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