California, along with numerous other states, counties, and cities, is currently taking on the US energy industry in state courts in a severe manner. Prominent energy companies like ExxonMobil, Shell, and the primary trade association of the oil and gas industries have been sued for allegedly contributing or assisting in the public nuisance of climate change. These actions, led by entities across the nation such as California and other states, numerous counties, and cities nationwide, are rooted in the belief that these companies, similar to previous public nuisance mass-tort settlements, can be coerced into a large settlement possibly reaching tens or even hundreds of billions of dollars.
For instance, consider the 2022 opioid public nuisance mass-tort settlements, where companies like Johnson & Johnson, AmerisourceBergen, Cardinal Health, and McKesson agreed to a payment of $26 billion. Notably, pharmacies like CVS, Walgreens, and Walmart reached a settlement worth $13.8 billion. Additionally, Purdue Pharma (the manufacturer of OxyContin) along with the Sackler family reached a settlement with the Department of Justice to the tune of around $8 billion. Regardless, these considerable amounts seem small in comparison to what was arguably the highest of all mass-tort settlements – the $246 billion tobacco industry settlement made during the era of President Clinton.
Despite these precedents, there is a significant argument that the plaintiffs are incorrectly applying public nuisance law and attempting to overextend its original purpose and intent. With roots reaching back to at least 12th-century England and the commencement of common law, a public nuisance is traditionally defined as an action that unlawfully, inappropriately, or unreasonably interferes with the general public’s right to appreciate public lands or waters. Also included can be the intentional misuse of private land to carry out illegal activities that disrupt public use or access to nearby public lands or waters.
When faced with such issues, governments at the state or municipal level typically sue to preserve the public’s common right to access and use public lands or waters. They request the court to cease the illegal activities and procure abatement costs from those officially involved in the illegal activities. Traditionally, public nuisance hasn’t encompassed activities deemed legal, particularly when they are heavily regulated at both state and federal levels.
State legislators in California and other similar regions have made the public policy choices to permit and regulate oil and gas exploration, production, refinement, and sales. These choices were made in spite of the looming concerns about climate change, and due to an acknowledgment of the necessity of energy to drive the fundamental aspects of life in modern times.
Given these circumstances, it is increasingly clear that plaintiffs at both the state and municipal levels are in the wrong to penalize the energy companies for abiding by state and federal laws and regulations. Moreover, their attempt to bypass the separation of powers and establish policy through litigation rather than legislation, which was recognized by the California Supreme Court in 1997, is wrong as well.
The plaintiffs’ claim regarding the energy companies’ global profits being fair game doesn’t sit well, especially considering they’ve not sued any Chinese companies despite China’s greenhouse gas emissions in 2021 surpassing the emissions of all Organization for Economic Cooperation and Development members combined. The problem with the argument is that it seemingly ignores the significant roles played by other industries, international actors, and the general population.
A desirable outcome for these circumstances would be for the courts to reject any attempts by plaintiffs to manipulate public nuisance law away from its original scope. If unchecked, there would be no limit to the extent of these lawsuits, especially if the courts decide to overlook the criminal acts that usually break the control and causation chains and/or manufacture non-existent public rights like the “right” to be free from climate change or free from criminals using legal products to contravene the law.
These twists in public nuisance litigation could lead to peculiar outcomes. For instance, under the legal theories proposed by plaintiffs, restaurants, bars, distilleries, breweries, wineries, grocery stores, liquor stores, and automobile manufacturers could be held liable for the public nuisance caused by drunk drivers. Similarly, cereal and snack food manufacturers, grocery stores, sugar companies, and fast-food chains could be held accountable for diseases like diabetes and heart disease.
Even wind turbine manufacturers, who have not been sued by mass-tort plaintiffs’ firms and their client states such as California, could theoretically be held liable for public nuisances like noise and aesthetic pollution, as well as the deaths of birds and dolphins , .
Public nuisance law was not meant to be a policy substitute for addressing societal harm or an alternative for a plaintiff’s inability to establish and substantiate fraud, deceptive practices, false advertising, or product liability. Misrepresenting public nuisance law leads to situations where “liability is based upon unidentified ills allegedly suffered by unidentified people caused by unidentified products in unidentified locations,”
Finally, as warned by the US Court of Appeals for the Eighth Circuit in Tioga Public School District v. U.S. Gypsum, misuse of public nuisance law can lead to a scenario where it “becomes a monster that would devour in one gulp the entire law of tort”. Therefore, it is vital for the courts to prevent such a situation from arising.
For more in-depth understanding, follow the link for the complete article: Abuse of Public Nuisance Tort Litigation Is the Real Nuisance by John Shu, a legal scholar and commentator who has served in the administrations of Presidents George H.W. Bush and George W. Bush.