Recent Supreme Court decisions have limited federal authority over pollution. In Sackett v. EPA, for example, the Court narrowed the scope of the Clean Water Act^[1]—a move environmental advocates decried as a rejection of scientific evidence due to water’s transient nature.^[2] Such rulings may seem like a judicial shrug at environmental harm, prompting fears that the Court has undermined the fight against pollution.

However, that conclusion is premature and incomplete. First, the broader landscape of recent land-use and environmental jurisprudence cases reveals not a wholesale retreat but a recalibration. Second, the defeatist conclusion assumes that centralized government regulation is the most viable path to ecological protection.

In fact, the Court’s recent decisions illuminate a powerful alternative: a renewed embrace of private property rights and the legal remedies that flow from them. By reinforcing the importance of private land ownership and the right to seek redress for harms, the Court has opened the door to a more decentralized, responsive, and constitutionally grounded approach to environmental accountability.

The Court in Atlantic Richfield Co. v. Christian ruled that state-law tort claims, such as nuisance, exist even if the affected property is part of a federal cleanup site, and a party can be liable for compensatory damages for “loss of use and enjoyment of property.”^[3] While the Court ruled that the EPA must approve whether landowners can seek damages to restore their property,^[4] these market-based remedies—grounded in tort and takings law—largely remain available to landowners.

Furthermore, the Court in DeVillier v. Texas ruled that owners have a federal right to just compensation under the takings clause for property damage by government action and that state law must provide a procedural mechanism to vindicate this right.^[5] While DeVillier narrowly applies to government takings,^[6] its emphasis on state-provided remedies resonates more broadly. Environmental damage, when caused by typical property torts such as nuisance or trespass, can also trigger state-law claims that serve as vehicles for redress.

When viewed together, Atlantic Richfield Co. and DeVillier reveal the supremacy of private property rights, helping to reframe environmental accountability around private enforcement. A broader contextual reading suggests that the Court encourages individuals to seek private redress for tortious interference with property. This reframing is an opportunity for both states and the federal government to reevaluate solutions and to enact additional safeguards for private property rights.

Utilizing private property rights to combat pollution is not a novel concept. As early as the 16^th century, English common law recognized that private nuisance actions could arise against polluters when damages were different from those suffered by the general public.^[7] However, the case law evolved to account for intent and reasonableness.^[8] As the common law developed, the courts began emphasizing a party’s negligence, shifting enforcement toward efficiency-based models, and mischaracterizing negligence as a necessary aspect of nuisance.^[9] This shift weakened private rights of action against polluters.^[10] Even when legislatures passed statutes to protect the public from pollution, private suits would remain a valuable mechanism for addressing pollution from concentrated sources.^[11]

To reemphasize the strict property principles that previously protected people against polluters, new law can be grounded in ethical principles and avoid mere efficiency. For example, a train that spews emissions may cost a landowner $100,000 in damages, but if it costs the railroad company more money to decrease the pollution, the company will pay the damages and continue to pollute.^[12] This creates an inadequate incentive: companies may find it cheaper to pay damages than to prevent harm.^[13] The subjectivity of costs presents an ethical problem, but a normative approach prioritizing strict property rights offers a fix.^[14]

For example, the Hinkley, CA, groundwater contamination case—a class-action lawsuit that gained notoriety in the film Erin Brokovich—illustrates the power of strict liability.^[15] In this case, the Pacific Gas and Electric Company dumped 370 million gallons of chromium-tainted wastewater into unlined ponds in Hinkley.^[16] The case involved negligence-based liability, meaning plaintiffs had to prove breach of duty of care, proximate cause, cause-in-fact, and damages,^[17] a process that required years of investigation and litigation.^[18] Furthermore, the negligence-based liability scheme allows a company to argue compliance with regulations or lack of intent, and to weigh litigation costs against cleanup costs.^[19]

Alternatively, a strict liability scheme would mean the plaintiffs need only prove harm from inherently dangerous activity, i.e., dumping contaminated water into unlined ponds.^[20] Once the plaintiff proves harm in the strict liability scheme, liability would immediately attach, forcing the company to internalize pollution costs.^[21] This solution eliminates inadequate incentives in our current liability scheme and acknowledges that interfering with someone’s property is an impermissible act of aggression.^[22]

Valuing a person’s exclusive possession means strict liability for pollution. This blueprint for private-action environmental reform takes inspiration from a nuisance action for loud noise. In the same way sound waves interfere with a person’s enjoyment of property and their health, so do harmful chemicals and polluted air and water. Court proceedings can address these problems, but states and the federal government that wish to address them should create a pathway for these actions and prevent their pollution laws from interfering with someone’s property rights.

Accordingly, Congress can address the Atlantic Richfield Co. precedent by introducing a statute allowing private actions without EPA approval.^[23] States reverting to strict liability can allow the affected parties in cases like DeVillier to receive damages for property damage when statutory measures are insufficient.^[24] Unlike regulatory regimes vulnerable to lobbying, delay, and Court-driven change, strict liability imposes immediate costs, creating direct economic incentives to reduce harm.

The Court has cleared the path. Now it’s up to legislatures, courts, and citizens to restore environmental accountability through the oldest and most enduring principle we have: the right to protect one’s property.

 

 

[1] Sackett v. Env’t Prot. Agency, 598 U.S. 651, 684 (2023).

[2] Public Affairs, ESA Statement on the Sackett v. EPA Supreme Court Ruling: Losses to Wetlands and Ecosystem and Human Health, Ecological Soc’y of Am. (June 8, 2023), https://perma.cc/D9SX-8PCG.

[3] Atl. Richfield Co. v. Christian, 590 U.S. 1, 23 (2020).

[4] Id. at 3.

[5] DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

[6] Id.

[7] William C. Porter, The Role of Private Nuisance Law in the Control of Air Pollution, 10 Ariz. L. Rev. 107, 108-109 (1968).

[8] Id. at 111.

[9] Id. at 110-111.

[10] See id. at 111-112.

[11] Id. at 112.

[12] Murray N. Rothbard, Law, Property Rights, and Air Pollution, 2 Cato J. 55, 58 (1982).

[13] See id.

[14] Id. at 60.

[15] Sedina Banks, The “Erin Brockovich Effect”: How Media Shapes Toxics Policy, 26 U.C. Davis Env’t L. & Pol’y J. 219, 220 (2003).

[16] Id. at 228.

[17] Negligence, Cornell L. Sch. Legal Info. Inst., https://perma.cc/6DS4-LX2A (last visited Oct. 24, 2025).

[18] Historic Lawsuit: Anderson v. Pacific Gas and Electric Co., DRB Capital, https://perma.cc/YJ2J-EAUF (last visited Oct. 24, 2025).

[19] Id.

[20] Strict Liability, Cornell L. Sch. Legal Info. Inst., https://perma.cc/DXS3-ZZAC (last visited Oct. 24, 2025).

[21] Id.

[22] Id.

[23] See Atl. Richfield Co., 590 U.S.

[24] See DeVillier, 601 U.S.