Bees, Trees, Preemption and Nuisance: A New Path to Resolving Pesticide Land Use Disputes through FIFRA

Every year, nearly 5 billion tons of pesticides are intentionally applied to the American landscape. Pesticides have eradicated deadly diseases worldwide and allowed the United States to become an agricultural giant, but have also created a significant risk to human health and the environment. The high stakes at issue have caused the federal government to create a comprehensive system of pesticide regulation, which has been subject to a significant amount of litigation. The bulk of this litigation has tended to fall into two distinct categories. The first category of cases (the FIFRA Preemption cases) consists of claims by pesticide users against pesticide manufacturers for personal injury or damaged crops where the key issue often involves whether such claims are preempted by FIFRA - the federal pesticide law. The second category of cases (the Pesticide Land Use cases) generally involves claims by non-pesticide users against pesticide users (usually neighboring landowners or aerial pesticide applicators), for property damage, crop damage and/or personal injury. Although the Pesticide Land Use cases seek damages similar to the FIFRA Preemption cases, the Pesticide Land Use cases rarely discuss FIFRA and focus heavily on common law negligence claims with far less emphasis on related claims of trespass, nuisance and strict liability. Not surprisingly, unlike the FIFRA Preemption cases which often look to unifying principles of federal pesticide law to reach a result, the Pesticide Land Use cases vary significantly in terms of the theories used and results reached even though they involve the same types of FIFRA-regulated pesticides. As a result, there is significant unpredictability in these cases, making it difficult for lawyers to properly advise their clients on the merits and select appropriate experts, and difficult for courts to choose a framework for resolution, resulting in inconsistent results both within and between jurisdictions. This Article explores ways in which the Pesticide Land Use cases can benefit from some of the uniformity principles that permeate the FIFRA Preemption cases in the context of negligence claims. More important, this Article proposes that common law negligence is a far less useful mechanism to resolve these cases than are other common law claims such as trespass and nuisance, as well as underutilized state and federal statutory claims