Over four centuries, nuisance law has proved its versatility. Originally a near strict liability doctrine restraining uses that interfered with traditional agrarian and domestic uses, nuisance evolved to accommodate the Industrial Revolution, providing nuisance defendants with defenses like suitability of uses to their location; use of best available technology; and a high standing bar for private plaintiffs alleging public nuisances, making injunctive relief unlikely. In the mid-twentieth century, the Restatements were interpreted by some courts to endorse wholesale balancing of the gravity of harmful activities versus their economic value to the defendant and society, not just limited to the issue of injunctive relief versus damages, but whether a nuisance existed at all. This transformation of nuisance doctrine, like the earlier transformation was the product of instrumentalism: a perceived need to accommodate economic growth, as judges were able to deny nuisance plaintiffs relief based on value judgments about the relative value of development versus environmental quality.
In recent years, the U.S. Supreme Court has intervened to stop federal nuisance law from being applied to interstate pollution, including greenhouse gas emissions. The Court did so not on the basis of congressional intent but on its visions of federalism and judicial competency. While these decisions seem to remove nuisance law from the foremost pollution threat in our time, the doctrine may regain relevance if the Court proceeds to narrowly interpret the scope of federal environmental legislation protecting resources like isolated wetlands and groundwater, thereby eliminating displacement arguments. If those resources are not federally regulated, nuisance doctrine would give injured landowners a remedy, just as it has afforded those injured by emissions from hog farms, recently the subject of multimillion dollar damage suits.
This Article traces the evolution of nuisance law, examining a dozen landmark cases, revealing a doctrine that began by protecting traditional agrarian and domestic uses, yet was malleable enough to accommodate perceived development priorities in the nineteenth and twentieth centuries. The Article does suggest that where not federally displaced or preempted by state statutes, nuisance law today remains a viable cause of action for injured landowners, particularly where the issue is left to juries. Given the evident hostility of the Supreme Court, nuisance may not be available to combat greenhouse gas emissions, despite the felt necessities of the twenty-first century like the evident damages due to unrestrained atmospheric pollution and ocean acidification. But nuisance doctrine could supply injured parties a remedy against unregulated activities. Those parties might encourage courts to rediscover nuisance’s strict liability roots and return the doctrine to its origins: protecting against uses that inflict substantial injuries on their neighbors and the public at large.