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

81 Pages Posted: 7 Mar 2007 Last revised: 12 Nov 2008

See all articles by Christine A. Klein

Christine A. Klein

University of Florida Levin College of Law


Marking the fifteenth anniversary of Lucas v. South Carolina Coastal Council — the modern U.S. Supreme Court's seminal regulatory takings decision — this Article surveys Lucas's impact upon regulations that restrict wetland filling, sprawling development, and the emission of greenhouse gases. The Lucas Court set forth a new categorical rule of governmental liability for regulations that prohibit all economically beneficial use of land, but also established a new defense that draws upon the states' common law of nuisance and property. Unexpectedly, that defense has taken on a life of its own — forming what this Article calls the new nuisance doctrine. As this Article explains, nuisance is new in at least two important ways. First, it has taken on a new posture, evolving from defense, to offense, to catalyst for legislative change. Second, nuisance has taken on new substance, triggered in part by Lucas's explicit recognition that "changed circumstances or new knowledge may make what was previously permissible no longer so."

Keywords: Climate change, Global Warming, Wetlands, Regulatory Takings

JEL Classification: K11, K32

Suggested Citation

Klein, Christine A., The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming. Boston College Law Review, Vol. 48, 2007, Available at SSRN:

Christine A. Klein (Contact Author)

University of Florida Levin College of Law ( email )

SW 2nd Ave at SW 25th Street
Gainesville, FL 32611
United States

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