Nuisance law’s vagueness drove environmental law toward detailed statutory standards

Evidence

A nuisance standard that makes the lawfulness of an activity turn on its “reasonableness” does not give a court any meaningful guidance in resolving the multiplicity of complex factors that must be weighed in deciding how much environmental degradation is too much. In short, these “background principles” have never been adequate to deal with environmental concerns, which is why environmental law evolved beyond those principles to fill the gap with detailed standards and regulatory controls. Therefore, to have the constitutionality of environmental restrictions turn on the extent to which those restrictions merely codify preexisting law places a constitutional obstacle in the path of the law’s evolution that environmentalists would argue is both necessary and proper. — Richard J. Lazarus, The Making of Environmental Law, 594

Categorization

• DEFINE: Clarifies why ‘background principles’ of nuisance law proved inadequate as a regulatory standard.
• XREF: Ties to ch19 Lucas discussion and to the broader LGST theme of law’s institutional evolution. — connects to: International trade law is far more institutionally organized than environmental law — Richard J. Lazarus, The Making of Environmental Law, 1038; Housing regulation disputes hinge on whether standards mean health or decency, not mere enforcement — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 399; Land-use problems resisted the technological fixes that made pollution law politically feasible — Adam Rome, The Bulldozer in the Countryside:…, 983