Maryland’s Public Nuisance Suits Show Need for Nationwide Fix

Two recent major decisions from the Maryland Supreme Court caught the attention of court watchers across the country. Express Scripts v. Anne Arundel County and Mayor & City Council of Baltimore v. B.P. were issued in successive days, applying longstanding principles of law in what should be obvious—centuries-old public nuisance law can’t be the basis for strategic litigation by municipalities in complicated causes of action. These cases involved prescription opioids and energy production, industries that operate in nationwide commerce and are highly regulated in the US by federal law.

For those who recognize the “public nuisance playbook” as the defining crisis for our modern litigation system—as well as our economy and society as a whole—the Maryland decisions shine a spotlight on the bigger problem nationwide. High-stakes public nuisance litigation targeting nationwide industries to address nationwide public policy problems is fundamentally a nationwide issue that requires a nationwide solution. And in most jurisdictions, citizens are less than receptive to this lawfare.

Obviously, the defendants in the Maryland cases and those in their industries feel vindicated in their legal position that public nuisance doesn’t apply to global energy production’s possible effects on the global climate or the lawful manufacture and dispensing of pharmaceuticals (as they’ve also been in some of the other jurisdictions who’ve considered the issue). And the Maryland Supreme Court should be commended for following the law in the face of powerful forces that sought to push their political agenda and seek large settlements based on a theory of public nuisance law stretched beyond reason.

When someone does wrong, there are already plenty of laws to hold bad actors accountable. Keeping public nuisance within its natural limits means plaintiffs don’t also get a residual catch all theory to pair with strategic tactics to hold up those who disagree with the threat of “astronomical” liability.

Though these suits and similar ones may no longer find purchase within the jurisdictional bounds of the Maryland Supreme Court, others brought under the same common law principles will continue their march onward in other jurisdictions across the country. The same game theory dynamics that have made public nuisance suits a successful tool for the municipalities, private plaintiffs, and states that team up with trial lawyers seeking big settlements and downstream policy changes driven by their litigation will continue undaunted in other courthouses.

In some states, such as Maryland and Oklahoma, litigants have successfully fought off the public nuisance playbook in court. Others, such as Montana, Utah, and Kansas, are inoculating their courts against it through affirmative legislation. But many jurisdictions are still susceptible to this playbook, and others embrace these suits in the name of progressivism but at the expense of the rule of law.

And there’s the root of the problem. When these suits target national or international industries and policies and practices, the states with courts that are willing to look the other way or even expand their interpretations to allow plaintiffs to pursue such claims end up with a veto over the rest of the country.

The most extreme become the most powerful. Although courts in states as politically different as Maryland and Oklahoma have now recognized the fundamental problems with these lawsuits and rejected them, their bipartisan consensus is toothless when suits can just be rerouted to receptive courthouses.

Even if Maryland or Oklahoma rejects the new public nuisance push (be it prescription opioids, energy production, PFAS, plastics, even certain kinds of foods), Hawaii or Colorado can effectively override that decision and enthusiastically push the case forward, even though the common law cause of action is the same. This is true even if the federal government explicitly allows and regulates the underlying conduct targeted by these suits. This isn’t how our Constitution intended for states to deal with each other or the federal government.

Thankfully, the US Supreme Court has agreed to hear a case related to the Maryland opinions—Suncor v. Boulder County. There, the same ideas, cause of action, and profile of plaintiffs underlying the Baltimore v. B.P. case that was just thrown out in Maryland found a more willing jurisdiction to entertain the suit in Colorado.

This result squarely demonstrates the problem with this dynamic. While the Maryland decision should be celebrated for its responsible reading and application of the law, it won’t do much in the long run unless the Supreme Court acts decisively to end the gamesmanship and forum shopping.

The cases are Express Scripts, Inc. v. Anne Arundel Cty., Md., Md., Misc. No. 1 September Term 2025, 3/23/26; Mayor & City Council of Baltimore v. BP PLC, Md., No. 1, 3/24/26; Suncor v. Boulder County, U.S., 25-170, amici briefs filed 9/26/25

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Luther Strange is a former US senator from Alabama and served as the state’s attorney general from 2011 to 2017.

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