Abuse of Public Nuisance Tort Litigation Is the Real Nuisance (1)

California and many other states, counties, and cities nationwide are waging an aggressive battle against the US energy industry in state courts. They have sued energy companies such as ExxonMobil, Shell, and the oil and gas industries’ main trade association for creating or aiding/abetting the public nuisance of climate change.

The plaintiffs believe that, based on previous public nuisance mass-tort settlements, they will be able to force the energy companies into a massive settlement worth tens, maybe hundreds, of billions of dollars.

In the 2022 opioid public nuisance mass-tort settlements, Johnson & Johnson, AmerisourceBergen, Cardinal Health, and McKesson agreed to pay $26 billion; pharmacies CVS, Walgreens, and Walmart settled for $13.8 billion; and Purdue Pharma (which manufactured OxyContin) and the Sackler family settled with states and municipalities for $6 billion, though that settlement is pending review at the US Supreme Court. But even these huge amounts pale when compared to the granddaddy of all mass-tort settlements: the Clinton-era tobacco industry settlement, $246 billion.

The plaintiffs, however, misapply public nuisance law and inappropriately try to expand it far beyond its original meaning and intent.

Since at least 12th-century England and the inception of common law, a public nuisance has been defined as an unlawful, unwarranted, or unreasonable interference with the general public’s common right to enjoy public lands or waters. It can also be the intentional misuse of private land to engage in illegal activity that disturbs the public’s use of or access to nearby public lands or waters—a factory that dumps toxic waste into a river, for instance.

When that happens, the state or municipal government sues to protect the public’s common right to access and use the public lands or waters, asks the court to enjoin the illegal activities, and recovers abatement costs from the people who actually engaged in the illegal activities. Traditionally, public nuisance hasn’t encompassed legal activities such as manufacturing or selling legal products, especially those heavily regulated at both the state and federal levels.

California’s and other state legislatures made the public policy choices to permit and regulate oil and gas exploration, production, refinement, and sales despite their concerns about climate change because the legislatures also determined that Americans need energy to power all the basics of modern-day life.

It is wrong for state and municipal plaintiffs to now punish the energy companies for following state and federal laws and regulations, and it’s wrong for them to contravene traditional separation of powers and attempt to make policy through litigation instead of through the normal legislative process, which even the California Supreme Court recognized in 1997.

It isn’t clear that the energy companies are the main “climate-changing” entities in the US. They produce, refine, and sell petroleum and natural gas products but don’t manufacture the vehicles or power plants that burn them and create the carbon emissions. The plaintiffs appear to ignore the significant roles of other industries, international actors, and the population at large. The plaintiffs claim that the energy companies’ global profits should be considered fair game, but they haven’t sued any Chinese companies even though China’s greenhouse gas emissions in 2021 exceeded the emissions of all Organization for Economic Cooperation and Development members combined.

Courts should reject the plaintiffs’ bar’s attempts to twist public nuisance law away from its original purpose. If they don’t, there will be no limit to where these lawsuits end, especially if the courts choose to ignore intervening criminal acts that normally break the control and causation chains, and/or conjure non-existent public rights, such as the “right” to be free from climate change or free from criminals who use legal products to break the law.

Under the plaintiffs’ legal theory, restaurants, bars, distilleries, breweries, wineries, grocery stores, liquor stores, and automobile manufacturers could be liable for the public nuisance of drunk drivers. Cereal and snack food manufacturers, grocery stores, sugar companies, and fast-food chains could be liable for diabetes and heart disease.

It is worth noting that the mass-tort plaintiffs’ firms and their client states such as California so far haven’t filed public-nuisance lawsuits against wind turbine manufacturers, even though they theoretically could be held liable for the public nuisances of noise and aesthetic pollution, as well as dead birds and dolphins.

Public nuisance law never was intended to be a legislative policy substitute to address societal harms or a replacement for a plaintiff’s inability to plead and prove fraud, deceptive practices, false advertising, or product liability.

Misapplying public nuisance law in this way creates an untenable situation where “liability is based upon unidentified ills allegedly suffered by unidentified people caused by unidentified products in unidentified locations,” and, as the US Court of Appeals for the Eighth Circuit warned in Tioga Public School District v. U.S. Gypsum, public nuisance “thus would become a monster that would devour in one gulp the entire law of tort.” The courts must prevent this from happening.

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

Author Information

John Shu is a legal scholar and commentator who served in the administrations of Presidents George H.W. Bush and George W. Bush.

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