Before passage of the Clean Water Act, water pollution was controlled by the common law of nuisance and the law of water rights. Had the common law not been superseded, it might have provided more ecologically sound pollution control than has occurred under the command-and-control statutory...

The necessity to control environmental externalities is almost invariably given as justification for command-and-control regulation and other forms of state intervention in related markets. When even mentioned, common law remedies that protected environmental rights for centuries are quickly...