The common law nuisance doctrine is credited with providing much of the force and substance of environmental law before the emergence of federal statutory regimes in the 1970s.2 Beginning in the 1970s. 2 The most comprehensive treatment of the evolution of environmental law begins with customary law as the first meaningful stage of development. However, many environmental law scholars and practitioners argue that the common law has a greater role to play than conventionally imagined by proponents of the dominant public law model.
For the most part, this conversation has taken place in relation to the role of the common law in regulating pollution, see for example Jason J., while my focus is on the role of the common law in managing ecological integrity. 7 For a thorough history of the emergence of ecologically oriented statutes and the development of ecosystem management law in general, see RICHARD 0.
See Robert Costanza et al., The Value of the World's Ecosystem Services and Natural Capital, 387 NATURE 253 (1997). Recently, the United Nations Millennium Ecosystem Assessment published a global study of the production and provision of ecosystem services. For a more detailed history, including coverage of the emergence of the concept of ecosystem services in the legal literature, see James Salzman, A Field of Green.
For example, in support of the proposition, Justice Scalia pointed to the Restatement (Second) of Torts, which explains with respect to nuisance claims.
The nuisance analysis arises in cases like Palazzolo only in connection with the government's nuisance claim in the exception to the landowner's regulatory claim. Although natural capital may be destroyed by negligent, reckless or unusually dangerous conduct, in the text I cover the more common situation in which intent, as defined, see supra notes 32-40, is present and the unreasonableness of the acts must therefore be shown. The question should not be one of intent in these circumstances, but of the materiality of each person's participation in the act causing the harm.63.
It is likely that courts in a given state will treat the multiple source aspect of the Cumulative Impacts Scenario of nuisance from ecosystem services in the same manner as they would with these other types of multiple defendants. The fact that the plaintiff is worse off and can demonstrate that the defendant intended it to be so points the analysis beyond the question of the plaintiff's property interest, i.e. whether this is of the type that, if disadvantaged as perceived, gives rise to an actionable claim that is a nuisance. All that matters is that the plaintiff has an ownership interest that extends to the specific use and enjoyment of the property, such as farming or running a business, which the plaintiff alleges is prejudiced by the conduct of the defendant, which for our purposes interferes with the delivery of a particular ecosystem service benefit.66 If the plaintiff has such an interest, this element is satisfied, and the.
Is it necessary to say that the claimant has a specifically defined property interest in light, air and views, as separate types of 'property', or should we define the protected property interest more broadly as the use and enjoyment of the land. The plaintiff would not automatically lose, but at that point the analysis would shift to assessing the reasonableness of the defendant's activities and balancing the interests of the two parties. Section 828 of the Restatement identifies three factors in the “utility of behavior” side of the analysis: (1) the social value of the primary purpose of the behavior; (2) the appropriateness of the behavior to the place; and (3) the impracticability of preventing or avoiding the damage.70 Several considerations are likely to complicate the analysis of these drivers of nuisance to ecosystem services.
The essence of the new principle of knowledge is to learn from mistakes and adjust the law of disturbances accordingly. In some cases, however, defendants may be able to point to approval by federal, state, and local environmental and land use authorities of the alleged degradation of natural capital to support a claim of reasonableness of conduct. In short, nuisance law must decide which degradations of natural capital, taking into account the value of the defendant's primary purpose and the possibility that governmental authorities have sanctioned that purpose, fall within the scope of nuisance liability.
see also Paul Ekins et al, A Framework for the Practical Application of the Concepts of Critical Natural Capital and Strong Sustainability, 44 ECOLOGICAL ECON. For example, the Palazzolo court had little difficulty finding liability for anticipated nuisance in the public nuisance version of the Simple Scenario, noting no more than that "the 446-acre Winnapaug Dam is a shallow, tidal dam that uses is for fishing, boating, and shellfishing. 82 Under traditional doctrine, for a private party to pursue a public nuisance action, the person must have "suffered harm of a different kind than that suffered by other members of the public who exercises the right common to the general public." (SECOND) ) OF DEBT.
To the extent that such cases include damage to the flow of ecosystem services as a basis for liability, they are extreme examples of the Cumulative Impacts Scenario which, among other difficulties, presents the problem of attributing causation to any of the individual defendants. 86 David Schoenbrod, Protecting the Environment in the Spirit of the Common Law, in COMMON LAW AND THE ENVIRONMENT, supra note 2, under 3, 18. However, once it came to light through private and public nuisance disputes, it turned out that there was of injuries resulting from the decline of natural capital can put pressure on government and industry to produce and provide such information more generally and routinely.92
Furthermore, at this stage in the development of natural capital and ecosystem services law and policy, it would be difficult to argue that, even with the lower burden of proof for initiating regulation and enforcement, regulation has gone anywhere on the basis of its claimed benefits.
ASSESSING ALTERNATIVES
There is no reason to believe that it cannot do the same for the purposes of natural capital and ecosystem services law. The second and perhaps most important law of the benefits that regulatory law can provide in this area is so obvious and powerful that it must be silenced to the contrary: if the law of disturbance does not accommodate and increase the disturbance of the ecosystem service , regulatory law will permanently lock horns with regulatory takings law on the effect of public regulation of natural capital on private property rights. Without that kind of evolutionary movement based on new insights into the common law to pave the way, the evolution of regulatory law will face the relentless drag of regulatory takeovers.
I have little doubt that public law will dominate natural capital management and ecosystem service values once the ecosystem service disruption doctrine lays the foundations of legitimacy and clears the regulatory fog. I suggest that we avoid the same neglect in environmental law of natural capital and ecosystem services. Developing a Specialized Common Law Cause of Action One might argue that I have not gone far enough in defending the role of common law in conserving natural capital and the value of ecosystem services.
Why stop at a disturbance function of ecosystem services - why not develop the theory of a function of ecosystem services in general, one that is not related to disturbance, but rather directly related to natural capital and ecosystem services. Or, why not extend the scope of the law of disturbance to include the protection of ecological qualities, regardless of the impact of landowners' actions on the flow of ecosystem services. Wilgus, The Nature of Concern: Judicial Environmental Ethics and Landowner Stewardship in the Age of Ecology, 33 McGEORGE L.
This formulation of nuisance, while attending to "externality-causing behavior," goes far beyond my ecosystem services nuisance theory of liability in its extension to "externalities imposed on the biological., community." Since I have yet to see a clear articulation of exactly how the common law would operationalize such a cause of action, °7 my short answer for now is that the conceptions of natural capital and ecosystem services are fundamentally instrumentalist, which is why they are just as good in the conventional nuisance doctrines. See Bruce Pardy, In Search of the Holy Grail of Environmental Law: A Rule to Solve the Problem, 1 McGILL INT'L J. Rather, I propose changing the focus of nuisance law by seducing its instrumentalist core with the economics of natural capital and ecosystem services.
Perhaps the biggest mistake we can make in relation to natural capital and ecosystem services is to think that anything about it is static. But the common law doctrine of nuisance is particularly apt to change based on the instrumentalist properties of natural capital and ecosystem services, which easily integrates them into its deeply instrumentalist core. In this sense, I proposed using natural capital and ecosystem services not as an attack on nuisance doctrines, but as a tribute—they are my Trojan horse to bring about change in the common law based on new knowledge.
