The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming


In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift from the Rehnquist Court to the Roberts Court; a replacement of Justice O’Connor with Justice Kennedy as the new “swing” voter; and the addition of important new wetland and global warming cases to the Court’s docket. Moreover, through the painful experience of hurricanes and otherwise, new learning has begun to recognize the critical relationship between community well-being and natural resources such as wetlands and a healthy atmosphere. In light of these changing circumstances, this article traces the evolution of the “new nuisance” defense of Lucas. As a unifying analytical theme, the discussion highlights the ability of nuisance law to “internalize externalities,” requiring landowners to bear an appropriate share of the environmental and social costs of their actions, rather than to shift them onto the neighboring community. The article concludes with a roadmap for communities desiring to protect their wetlands, vegetated lands, and atmosphere without incurring takings liability by identifying the extent to which land development activities “take” important ecosystem services from the community in a manner akin to common law nuisance.


Constitutional Law | Environmental Law | Jurisprudence | Law and Society | Property Law and Real Estate | Public Law and Legal Theory

Date of this Version

August 2006