Common Law Remedies for Environmental Wrongs: The Role of Private Nuisance

Abstract

Today’s environmental plaintiff has a myriad of federal statutes upon which to base a claim against a polluter. In many cases, however, common-law actions such as nuisance, negligence, trespass, and strict liability for abnormally dangerous activities still provide attractive features. This paper attempts to illustrate those features by focusing on the common-law doctrine of private nuisance. What is its place in today’s environmental litigation? To what extent, if any, has it been preempted by federal legislation? What are its potential pitfalls and problems? This paper attempts to answer these questions and provide guidance to the environmental litigator interested in attaining favorable results without extensive reliance upon federal legislation.

Keywords: nuisance, trespass, negligence, strict liability, preemption, Clean Water Act

JEL Classification: K1, K32