From Swamp Drainage to Wetlands Regulation to Ecological Nuisances to Environmental Ethics

Abstract

This essay shows how ecological nuisances should be accepted under longstanding principles of nuisance law. Ecological nuisances build upon the flexible history of nuisance law's response to changed attitudes toward interferences with land use. I use the example of wetlands to illustrate ecological nuisances. Wetlands are an especially appropriate example because they are featured in many recent environmental disputes, and because the societal understanding of wetlands has changed so dramatically during the past century. On the other hand, a theory of ecological nuisances is not limited to wetlands. Ecosystems of all types provide services, and the interference with those services could constitute a nuisance. I begin by describing the swamps that were the bane of societal-including judicial-thought during the late nineteenth century period when Wood wrote his famous nuisance law treatise. Next I review J.B. Ruhl's argument for nuisance law's recognition of the ecosystem services provided by wetlands. I then turn to how theories of environmental ethics - focusing upon the recent work of both Christian writers and legal scholars - can aid an evaluation of ecological nuisances and other legal regulation of wetlands. The essay concludes that ecological nuisances should not be the law's only response to the study of ecosystem services, but they offer a valuable tool that is available to individual landowners as they continue to work out their own understanding of the ethical values of their land.