Making Nuisance Ecological

Abstract

Common law nuisance doctrine has the reputation of having provided much of the strength and content of environmental law prior to the rise of federal statutory regimes in the 1970s, but since then has taken a back seat to regulatory law with respect to the environment. In particular, whereas nuisance doctrine has been criticized - many say too harshly - as being inadequate for dealing with the demands of modern pollution control, it has never been considered as having much at all to do with management of ecological concerns. Yet nuisance law evolves with changed circumstances and new knowledge. This article examines one such evolutionary force - new knowledge of the economic value of natural capital, such as coastal wetlands, and the ecosystem services that flow from it, such as mitigation of storm surges. Part I of the Article outlines the prima facie case of an ecosystem services nuisance, showing that the conventional doctrine of private and public nuisance is aptly suited to engaging situations when one landowner manages his or her property so as to deprive another of economically valuable ecosystem services. Temporal, spatial, and cumulative effects may complicate such cases, but do not shift this form of injury outside the scope of nuisance. Part II examines the advantages and disadvantages of relying on nuisance law in this context. The primary advantages are the local focus of nuisance law and its information-producing effects, whereas the disadvantages normally associated with common law claims are not strongly operative. Part III argues that the ecosystem services nuisance theory of liability should be pursued alongside statutory regimes designed to manage natural capital and ecosystem services, so as to promote legitimacy of the statutory program and to help insulate it from regulatory takings claims. On the other hand, Part III also argues against a more expansive common law theory designed to encompass moral, ethical, and scientific harms to our sense of ecological integrity.