Do the rules of private nuisance breach the principles of environmental justice?

This article explores the potential distributive consequences of the tort of private nuisance, through the lens of environmental justice. Firstly, the theoretical underpinnings of this concept are set out. The principal concern of environmental justice is the unfair burdening of disadvantaged groups with societies’ environmental ‘bads’; but the concept can also be manipulated to form a coherent set of principles, enabling the assessment of social institutions. For brevity’s sake, a detailed investigation of the theory of environmental justice or its procedural elements is excluded in favour of a more rigorous practical application of substantive environmental justice. The second and largest part of this article applies this framework for environmental justice to private nuisance. This application serves to demonstrate that the tort has significant potential to perpetuate or even exacerbate environmental inequality. The so-called locality rule – the relative standard used to identify actionable nuisances – appears to ‘lock-in’ environmental injustice, as does the standing rule, which prevents certain classes of claimant – potentially the most disadvantaged – from seeking refuge in this tort. In addition, the increased willingness of judges to issue damages instead of the traditional remedy of an injunction may go further than merely ‘locking in’ environmental injustice by widening environmental inequality.