Common law and federalism in the age of the regulatory state

Over the past several decades, the growth of federal statutes and the rise of the regulatory state has weakened and displaced state common law even in the absence of preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than overshadow or displace it. Moreover, in this current age of the "new federalism," such progressive common law development at the state level may be particularly timely and appropriate. This Article uses these principles to provide a new perspective on the evolution of environmental law from its common law beginnings in tort law, to the flurry of federal statutes and regulations, to present-day state and local environmental-protection initiatives. This Article then argues for increased emphasis on state common law in environmental-protection efforts.