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If the roads were privatized, their owners could be rightly sued for the pollution they create.
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This doesnt work under American tort law for many reasons. First, as a practical matter, any individual's "injury" from pollution is likely to be de minimum, and thus individually there is no incentive to sue (even though collectively the injury might be material). Second, because each individual's injury is de minimus, any provable damages would also be de minimus. Thus even if you wanted to get lawyered up to sue, there is no economic incentive to sue. Third, thus the primary remedy you're talking about is really injunctive in nature--ie, an order from the court to the defendant "to stop polluting." This is a classic case of a situation where government intervention is appropriate--protection of public goods where a collective action problem prevents the tort law from properly functioning.
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What? Your argument is that individuals are most likely not harmed enough to bother pursuing compensation, but that they need regulation to protect them from what isn't harming them?
And the remedy is
not injunctive. You simply
cannot get them to "not pollute," since even low emission vehicles still have emissions. Furthermore, this is not even an argument in favor of regulation, since as pvn has already pointed out, regulations set "acceptable levels" of pollution which are, obviously, non-zero.
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Fourth, the use of lawyers to reduce pollution is an unnecessary economic deadweight loss--lawyers essentially are economic friction for both the plaintiff and defendant. A much more efficient solution is regulation, with each individual complying voluntarily with regulations b/c of the threat of being discovered and sanctioned (criminally or civilly). Economists would describe this as lowered "fencing costs".
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Wait. Lawyers are economic friction but regulatory bureaucracies are not? How is not polluting for fear of being sanctioned by a regulatory agency better than not polluting for fear of being privately sued?
Furthermore, a regulatory bureaucracy has a financial incentive to not solve the problem. If the problem were solved the regulatory agency could not generate revenue nor justify its existence.
Not to mention the inevitable corruption that arises from government regulation of private industries as competitors lobby to have the regulations written and interpreted in their favor and against the interests of their competition.
Did I mention that I
worked for the
EPA?
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Fifth, it is not even clear that road owners could be held liable under tort law for the pollution caused by the operators of vehicles. For instance, road owners could make a rule: "Only low-emission vehicles may enter the tollway. By driving on our tollway, you represent that you drive a low emission vehicle." If it turns out that a high-emission vehicle were driving on the tollway (and thus causing a pollution "injury"), the toll road owner would probably not be liable under American tortlaw, because the injury was caused by an intervening tortfeasor. Thus, as a legal matter, your approach is contrary to American principles of civil liability.
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A "low emission vehicle" still has emissions. A road owner could not provide a road without admitting liability for pollution usless the vehicles were actually zero-emission.
Furthermore I am not representing that I believe the current instantiation of American tort law is the "correct" one. In fact, it is something that I have little knowledge of the details of, so I can't really mount much of a defense (as you can probably tell). So if you're going to descend into the arcana of tort law, I guess you win.