2018 Conference

Individual Paper Presentation

Agricultural fertilizers do more than just boost yields and insure harvests.  Following application, excess nitrogen and phosphorus can be washed into surface waters, where they fuel hazardous algal blooms and generate massive “dead zones” of oxygen-depleted water.  Regulation of nutrient runoff has proven to be practically and politically difficult; the claims of water users and functioning aquatic ecosystems have been accorded, in practice, less legitimacy than the rights of agricultural producers to generate environmental harms.  When these competing claims come into conflict and regulation of this space is weak, what happens?  This presentation will examine the role of environmental litigation in filling regulatory gaps where some resource users are otherwise without protection. Specifically, my research analyzes and compares some of the creative legal approaches of litigants in climate change lawsuits and nutrient pollution lawsuits.   For example, several coastal American cities have filed lawsuits to recover the costs of dealing with climate-change-associated sea level rise, claiming fossil fuel manufacturers – not end users -- had foreknowledge of the harms resulting from the use of their products.  In contrast, nutrient pollution litigants (ranging from drinking water utilities to environmental advocacy organizations) have focused their suits on fertilizer applicators (farmers and farmer organizations) rather than fertilizer manufacturers and distributors.  Each approach has an associated set of political and legal risks and benefits, and social and ecological implications.  The contrasting strategies of these litigants suggest some possible new directions for combating and reducing agricultural nutrient pollution.