To observe that the field of environmental law is prone to surges of rapid growth is to restate the obvious. Congress and state legislatures, spurred by the public to remedy unanticipated environmental problems, have responded quickly by establishing comprehensive regulatory schemes. As a result, the role of the courts in shaping this area of the law, while hardly lethargic, has been limited largely to fleshing out statutory ambiguities and giving effect to legislative intent. Rarely has the judiciary been able to claim credit for "innovation" in shaping environmental law.¹

Yet, there is one region of judge-made environmental law that recently, at least according to its proponents, has undergone nothing short of revolutionary growth. The federal common law of nuisance, which was unknown at the time the National Environmental Policy Act was enacted, appears to be coming to the fore as a doctrine offering adaptable and effective relief to victims of pollution. Within the past two months, the United States Courts of Appeals for the Third and Seventh Circuits have applied the doctrine in rulings that could have enormous implications for pollution control law in general. Building on roughly a dozen previous decisions, they have redrawn the contours of the doctrine to permit suits by private plaintiffs to redress pollution of any "navigable" waters, regardless of whether the pollutants have crossed state borders. In light of rulings by other courts (1) allowing relief, including compensatory damages,² even where the offensive discharge has long since been abated³ and (2) suggesting the applicability of the theory to air pollution,⁴ these decisions, if read liberally and applied conjunctively, threaten to surpass the citizen suit provision in the Federal Water Pollution Control Act (FWPCA)⁵ as a litigative tool.