Public nuisance laws can control damage to ecosystems

Issue date: 17 March 2009

A scallop dredger Researchers from the University of the West of England have found a legal route to limit damage to the environment – such as uncontrolled scallop dredging, using the common law of public nuisance.

Tom Appleby, senior lecturer in law at UWE's School of the Built and Natural Environment, and Mark Everard, a visiting research fellow at UWE's Faculty of Environment and Technology, have just published a paper exploring how the use of 'ecosystem services' can extend the reach of the common law. This can support public nuisance actions relating to damage to ecosystems, and assist in framing legal action to resist the damage or claim compensation.

The article outlines how analysing an ecosystem and the services it provides to society, including providing food and amenities, enables monetary values to be ascribed to it. This analysis further reveals a number of potentially affected parties likely to suffer damage from the actions of a few self-interested operators.

Tom said, “Ecosystem services analysis has been successfully used in the operation and development of a regulatory system in South Africa. Such an analysis recognised and attempts to put a value on the function of the ecosystem and its benefits to society, including future generations.

“Public nuisance actions are not limited by property rights as is the case with private nuisance actions. A good example is the unsustainable scallop dredging in Lyme Bay on the south coast of England. Its potential to cause long-term damage to the sea bed means that there are identifiable groups of people affected.

These would include sustainable commercial fisheries or people wanting to use the area for recreation or diving."

Mark added, “It would be possible to frame a case in public nuisance to protect these parties' interests by seeking an injunction against the damaging activity. Using a common law remedy to restrict the right to fish for scallops in an unsustainable manner is appropriate as the right to fish itself originates in common law."

Tom continued, “It goes to show that there is a scientific method of calculating damage to the ecosystem and that, once calculated, there is a method in the common law to stop such damage through the common law of public nuisance. This gives disenfranchised people a method of taking action, rather than deferring action for a prolonged period before regulation can be introduced through the political process; often, such regulation is too little, too late and has to deal with deeply entrenched vested interests. Regulatory intervention remains an option, but nuisance claims offer an alternative and more rapid pathway for aggrieved parties to seek compensation and obtain an injunction against damaging activities."

Editor's notes
The article is published as
Everard, M and Appleby, T Ecosystem services and the common law: evaluating the full scale of damages (2008). Environmental Law & Management 20

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