Legality of Air Polution

Factual Questions
1

I couldn’t toss old newspapers and other garbage onto someone else’s property, but when I drive my car the exhaust fumes end up on others’ property, yet I can get away with that. Granted the particulates are microscopic but the principle is the same – I’m dropping my garbage onto someone else’s property.

Obviously this is not illegal because everyone does it and it would be a great inconvenience to consider everything from fireplace smoke to my breath as refuse. Still, it seems that there needs to be some legal distinction clarifying what is and is not allowed. A simple “your atoms must stay off my property” is defied daily, so is there some legal agreement that allows us to violate the property rights of others so that we can conveniently pollute?

2

Agreements like the Kyoto protocal notwithstanding I think The Master™ covered the gist of why you can’t keep someone’s molecules out of your air.

3

Padeye, the column you cite isn’t really on point. Legally, airspace rights aren’t the issue. Assuming no governing statutes or ordinances, the body of law that governs pollution type damages to property is nuisance law.
Here’s an article that discusses nuisance law:

http://www.dsl.psu.edu/centers/aglawpubs/panuisancelaw.cfm
Relevant excerpts:

"The Restatement section 821F indicates that a person is not subject to liability for interfering with someone else’s property rights unless the interference causes significant harm. Significant harm is further defined in section 821F©: ‘Significant harm is harm of importance, involving more than slight inconvenience or petty annoyance. The law does not concern itself with trifles, and in the case of a private nuisance, there must be a real and appreciable interference with the owner’s use or enjoyment of his land before he can have a cause of action.’ Furthermore, the determination of significant harm is harm in the opinion of a ‘normal person.’ "

and

“In Karpiak v. Russo several homeowners sued a landscaping supply business because of noise, odor and dust. The Court concluded that the landscaping business might have been annoying and causing an inconvenience, but that it had not reached the level where it was seriously annoying or intolerable. One homeowner complained that dust settled on his home, car and patio furniture requiring him to clean these items. The production of serious amounts of dust from a business can constitute a nuisance as long as the dust causes significant harm to the complaining party. In this case, the court concluded that the dust did not rise to that level. There was no evidence that the dust caused the home owners’ health problems or that it affected their ability to carry on their daily activities.”

4

My point was that the air above one’s property isn’t owned the same as the ground is.

5

You’re correct*, but that is not directly relevant to the OP’s question. For pollution type invasions of property, it doesn’t matter whether the dust (or whatever) is at 100 feet, 3 feet, or settled on the ground.

(Well, I suppose if the dust/pollution always remained at least 100’ above the surface, the complaining plaintiff would have a hard time showing that it substantially interfered with his use of property but, again, that’s a nuisance concept, not an air rights one. If the plaintiff had a 200’ foot tall building, and the dust covered his windows every day to a substantial degee, he’d have a case.)

*Well, not really, not as you state it here. You own air rights (just as you do the ground) up to the point where you can rationally get use out of them. I couldn’t build a bridge over your property, even if it never touched the ground. But you can’t complain if someone flies over your property in most cases (even ignoring Federal statutory preemption of aircraft law, which makes it even clearer that planes have this right.