Environmental Hedonism or, Securing the Environment Through the Common Law

Abstract

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are deficient as a tool for protecting environmental degradations. The Article then studies the parens patriae powers of the government to manage and to protect the environment as a source for securing the environment and finds justification for its exercise through the application and use of the Doctrine of Public Trust. It concludes by examining the Common Law of nuisance - and especially anticipatory and aesthetic nuisance - concluding, as such, this body of law provides the strongest remedial base for protecting assaults on the environment.