For these and other reasons, conservative and libertarian intellectuals who embrace what is known as «free market environmentalism» have long argued that pollution is a trespass on private property that is best dealt with whenever possible by common law action — not by legislators acting to referee such trespasses via sweeping environmental laws with (heavily politicized) utilitarian calculations in mind. (niskanencenter.org)
Full range of statutory claims before the ET and common law actions in the High Court. (elyplace.com)
Even so, common law action against greenhouse gas emitters via appeals to property rights violations has been tried in AEP v Connecticut. (niskanencenter.org)