77 Why do common law duties often fail when protecting the environment?

Tort law offers two general ways to litigate environmental concerns: nuisance and trespass. A common-law nuisance is an interference with the use and enjoyment of one’s land. Examples of nuisances are excessive noise (especially late at night), polluting activities, and emissions of noxious odors. But the activity must produce substantial harm, not fleeting, minor injury, and it must produce those effects on the reasonable person, not on someone who is peculiarly allergic to the complained-of activity. A person who suffered migraine headaches at the sight of croquet being played on a neighbor’s lawn would not likely win a nuisance lawsuit. While the meaning of nuisance is difficult to define with any precision, this common-law cause of action is a primary means for landowners to obtain damages for invasive environmental harms.

A trespass is the wrongful physical invasion of or entry upon land possessed by another. Loud noise blaring out of speakers in the house next door might be a nuisance but could not be a trespass, because noise is not a physical invasion. But spraying pesticides on your gladiolas could constitute a trespass on your neighbor’s property if the pesticide drifts across the boundary.

Nuisance and trespass are complex theories, a full explanation of which would consume far more space than we have. What is important to remember is that these torts are two-edged swords. In some situations, the landowner himself will want to use these theories to sue trespassers or persons creating a nuisance, but in other situations, the landowner will be liable under these theories for his own activities.

Importantly, both of these torts are only available when the landowner’s land or enjoyment is harmed. If someone is concerned about an environmental issue on public land, there is no common-law recourse. Because the individual themselves has not been harmed, it is difficult to use traditional litigation to resolve these issues. In addition, it may be hard to prove many of the issues needed to resolve traditional lawsuits. For example, if acid rain affects one’s crops, establishing a causal link between a particular defendant and the spoiled crops may be impossible, because tracking pollution to clouds and then to rain is an extremely challenging task.