Ecosystem services and judge-made law: A review of legal cases in common law countries

This paper reviews the prevalence and usage of the concept of “ecosystem services” in American and other common law legal systems. Our review suggests that this concept is rarely relied upon by courts and other adjudicatory bodies. We have identified 113 cases in seven common law countries, including a handful in the United States, the majority of which discuss ecosystem services and related concepts in only a peripheral manner, indicating that adjudicating bodies are hearing cases that consider ecosystem services in broad strokes rather than as central issues. Where ecosystem services are considered substantively, the cases view those services through the lens of interpreting and applying existing environmental laws and regulations, including laws that require environmental valuations. We identify several recurring trends in cases discussing ecosystem services and recommend courses of action for environmental agencies and litigants interested in furthering ecosystem services protection through the court systems of common law countries.