March 8, 2007
Klein on The New Nuisance
Christine A. Klein (University of Florida College of Law) has posted The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming on SSRN. Here's the abstract:
Recently, a remarkable shift in environmental attitudes has begun to gain traction. For example, just fifteen years ago, the Supreme Court agreed in Lucas v. South Carolina Coastal Council that coastal property was valueless in its natural condition, and that the state could not prohibit its development without providing compensation to the affected landowner. Today, the highest court in at least one state has come to the opposite conclusion, determining that the development of coastal marshlands would constitute a public nuisance under state common law. An even more striking shift is underway in the area of climate change. In early 2005, one U.S. Senator—echoing the sentiments of many—denounced the threat of catastrophic global warming as "the greatest hoax ever perpetrated on the American people." The following year, An Inconvenient Truth was released, moving Al Gore from the status of unsuccessful presidential candidate to accidental folk hero (in some quarters) and nominee for the 2007 Nobel Peace Prize. At the same time, a sizeable group of prominent business leaders began a campaign to encourage Congress to regulate their own industries by enacting mandatory caps on greenhouse gas emissions. What factors could account for this remarkable shift? The attached article suggests two responses to that question. First, as the Lucas Court set forth a new categorical rule of governmental liability for regulatory takings, it also established a new defense that draws upon the states' common law of nuisance and property. That defense has taken on a life of its own— forming what this article calls the "new nuisance doctrine"—evolving from defense, to offense, to catalyst for legislative change. Second, in 2005 Hurricanes Katrina and Rita struck New Orleans and the Gulf Coast of Louisiana and Mississippi. The hurricanes and their resultant storm surge swept away levees, life, and property. They also shattered our skepticism that wetlands indeed perform valuable flood control functions, and challenged our belief that society can continue to emit carbon dioxide and other greenhouse gases into the atmosphere without adverse impact upon the climate, weather patterns, and sea levels. As expressly contemplated by Lucas, changed circumstances and new learning should guide courts as they determine the appropriate contours, respectively, of property rights and the public interest. This article undertakes a survey of such new learning in the areas of wetland destruction, sprawling land patterns, and global warming. It concludes by considering the extent to which this new information has been incorporated into the law of new nuisance.
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