Private law and the environment: nuisance in context

Private nuisance is, on the face of it, an old-fashioned tort, whose agrarian, antidevelopmental roots may make its contemporary relevance seem limited. On the other hand, both nuisance and Rylands v Fletcher hold obvious attractions for litigants whose interests have suffered as a result of environmental change. The potential apotheosis of nuisance into a ‘Toxic Tort’ presents tort lawyers and environmental lawyers with a number of pressing questions concerning the nature and scope of private law in this context.This article will seek to assess in outline the positive potential of tort law in this respect, but it will also be argued that there may nevertheless be real conflicts between the law of tort and central elements of environmental law. The nature of those potential conflicts can only be understood if we clarify the form (or forms) of liability effected by relevant torts, and here the tort of nuisance poses particular problems. Once clarified, however, I would suggest that these conflicts can contribute to debates, not just about tort law, but also about the basic aspirations of environmental law and policy.