Aquatic invasive species like the Asian carp and zebra mussel have caused grave ecological and economic harm across the United States, and frequently harm rights common to the public such as boating, fishing, and bathing. Yet, Congress' efforts to address the problem through legislation have been piecemeal and unsuccessful. Historically, the common law of public nuisance served as an important tool to remedy transboundary pollution. More recently, courts have established that such public nuisance claims will be displaced where Congress has comprehensively regulated in a field. This Note explores whether public nuisance claims involving aquatic invasive species should be displaced by analyzing a recent public nuisance case involving Asian carp. The Note argues that the court correctly found no displacement. However, the Note questions the court's application of a Restatement (Second) of Torts rule that conduct fully authorized by law is not a nuisance. Further, the Note argues that public nuisance claims involving aquatic invasive species should generally not be displaced because the current ineffective patchwork of federal laws and regulations are not analogous to more comprehensive pollution control statutes such as the Clean Air and Clean Water Acts, both of which courts have construed to preempt federal common law remedies.
Worthy of Their Name? Addressing Aquatic Nuisance Species with Common Law Public Nuisance Claims,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss1/10