Bloomberg Law
May 14, 2020, 8:00 AM

INSIGHT: Climate Case Is Ninth Circuit’s Golden Opportunity on Nuisance Suits

Tiger Joyce
Tiger Joyce
American Tort Reform Association

Since early this year, the nation has been consumed by the coronavirus. While all eyes are appropriately on the virus, a case is pending in the Ninth Circuit that has the potential to restore balance to the nation’s legal system and impact a variety of industries across the country.

In City of Oakland v. BP Plc, the City of Oakland alleges that by producing the energy Americans need and use every day, oil and gas companies knowingly created the public nuisance of global climate change.

This appeal is part of a growing trend of liability expansion across the nation. Public nuisance lawsuits and the lawyers behind them aim to hold industry “responsible” for climate change, environmental spills and littering, the opioid epidemic, vaping, and now—the Covid-19 outbreak. In late April, a first-of-its-kind lawsuit was filed against Smithfield Foods in federal court blaming the company for contributing to the spread of Covid-19.

In the midst of societal and environmental challenges, activist attorneys are finding a way to capitalize on issues and earn themselves a large pay day.

A new report by the American Tort Reform Association connects the dots between these seemingly unrelated public and environmental health concerns, highlighting how lawyers are working to create endless liability for American companies.

Public Nuisance Litigation

Activist attorneys pitch their services to local governments and state attorneys general, urging them to file lawsuits and hire them on a contingency-fee basis to manage public nuisance litigation.

Public nuisance lawsuits traditionally involve an unlawful condition blocking public use of land or water. Trial lawyers began chipping away at and expanding public nuisance law over the past 50 years to the point that lawyers today utilize it for seemingly anything.

While most public nuisance lawsuits are funded by the plaintiffs’ lawyers themselves, the climate change suits are different. In climate change litigation, public nuisance lawsuits are used as a political or regulatory shortcut. More than a dozen local and state governments are suing energy producers for the costs they say they will have to spend to deal with the impacts of climate change, such as building sea walls to protect shorelines. They are funded by environmental foundations that want to leverage the increased filings of these lawsuits to create political pressure on the oil and gas industry.

The lawyers and activists set about the country like traveling salesmen trying to convince local and state governments to file public nuisance lawsuits against the oil and gas industry. These lawsuits have sought to blame climate change on energy producers—regardless of any wrongdoing, fault, or causation—and demand that they pay for local infrastructure projects to address the effects of climate change.

So far, about 14 or 15 communities have filed or announced that they plan to file these claims. These public nuisance cases, as well as other climate actions, however, have not fared well in the courts.

The case on appeal to the Ninth Circuit was originally dismissed by the U.S. District Court for the Northern District of California Judge William Alsup who stated, “Having reaped the benefit of that historic progress, would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”

Alsup correctly recognized that the limited role of the judiciary is to solve disputes between parties before the court, not develop national policy.

Alsup is not alone in his thinking. In July 2018, a similar climate change lawsuit filed by New York City resulted in dismissal. U.S. District Judge John M. Keenan found that it is inappropriate to use state laws and the courts to address costs attributed to greenhouse gases. Solutions to global warming, he found, must be developed through federal legislation and foreign policy, not local lawsuits.

The Ninth Circuit has an opportunity to redirect policy and push back on activist attorneys’ attempts to improperly expand the law. Should they uphold the dismissal by Alsup, it will be a clear statement that the court’s role is not to make public policy, but that it is the responsibility of the legislative and executive branches to create comprehensive public policy solutions for our nation’s most pressing issues.

The inappropriate expansion of public nuisance law and degradation of longheld legal tenets is an abuse of the nation’s court system. Litigation is not a solution to address the broadest societal ills, and in the end, it is the lawyers who end up with a big payday while victims and communities in need of aid often are no nearer to resolution. It is the responsibility of legislators and elected officials to protect the public interest, not lawyers.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Tiger Joyce is president of the American Tort Reform Association.