The classic definition of public nuisance is “an unreasonable interference with right common to the general public” Camden County Bd. of Chosen Freeholders v. Beretta U.S.A. Corp., 273 F.3d 536, 539 (3d Cir.2001).  However, the utilization of public nuisance  theories in non-traditional product liability and environmental litigation, if given sustenance by the courts, threatens to generate multi-billion dollar exposure for corporate defendants.

Remarkably, in many public nuisance cases, the defendant’s conduct  was proper and the product lawfully marketed and sold. It is partly for this reason that public nuisance has been described by various legal scholars and commentators as a “wilderness of law”, “an impenetrable jungle” and a “legal garbage can full of vagueness, uncertainty and confusion.” For example, in the tobacco litigation, contingency-fee plaintiff lawyers and state attorneys general argued in the 1990’s that tobacco manufacturers should be required to reimburse state Medicaid and other health-program expenditures because they allegedly had created a public nuisance by selling cigarettes.  At the end of the day, the tobacco manufacturers agreed to a $246 billion settlement under the terms of the 1998 Master Settlement Agreement.

In an article appearing in the IADC Corporate Counsel & Toxic and Hazardous Substances Litigation Committee Newsletter (September 2017), titled “What Next Rough Beast….The Second Coming of Nuisance Law Litigation,” Joseph F. Speelman, a veteran of the Rhode Island public nuisance lead paint litigation, makes the case that public nuisance has been largely misused “as a device to create legislation, social policy, and regulation by judicial fiat.”

Speelman’s article tracks the evolution of public nuisance in litigation involving asbestos, tobacco, guns and lead paint.  His article cites the amicus brief filed with the Rhode Island Supreme Court in the lead paint litigation by Professor James A. Henderson, a reporter for the Restatement (Second) of Torts, and a professor at Cornell Law School.  In that litigation, a Rhode Island jury found lead paint manufacturers liable for the remediation of over 215,000 pre-1953 residential structures in the state, an estimated $2 billion dollar liability. Ironically, in most of the states where the lead paint cases were brought,  construction codes required that lead paint be used in new residential construction.  Professor Henderson argued in pertinent part:

“Make no mistake about it, aggregative torts are inherently lawless and unprincipled….in the remarkable degree to which they combine sweeping, social-engineering perspectives with vague, open-ended legal standards for determining liability and measuring damages.  In effect, they create judicial legislation and regulatory power in courts never intended or permissible in a Democracy….”

In July 2008, the Supreme Court of Rhode Island reversed the trial court’s verdict and rejected out of hand the public nuisance law as a means to sue manufacturers of lawful products.  In so doing, the court joined a growing list of other state supreme courts that have, to quote Speelman, “refused to enlarge the boundaries of this ancient tort.”

In an article titled, “Public Nuisance–The New Mega Tort”  published in advance of their October 2010 DRI presentation, Michael T. Nilan and David H. Wright, summarize both the enormous potential advantages to plaintiffs in asserting public nuisance claims. Assuming the claim survives a motion to dismiss, these advantages include the following:

•  lack of any semblance to the rules governing existing state tort law
•  strict liability against manufacturers of ordinary consumer products which, although legal when sold, are now deemed  dangerous as a result of decades of deterioration and poor maintenance by the purchasers
• Ignoring proximate cause
• not requiring identification of the manufacturer whose product caused harm and relying on market share, enterprise liability or civil conspiracy theories of liability
• joint and several liability
• overcoming statute of limitations defenses by deeming the nuisance a “continuing” nuisance.

The defendants in these cases have a powerful arsenal of potent defenses to public nuisance claims. In making an early assessment of a complaint alleging a public nuisance claim defense counsel should ask the following questions to identify potential defenses to the claim.

• Is there preemption or a prevailing statutory scheme? (For example, does the activity that is the subject of the complaint  comply with regulations or a comprehensive legislative scheme?)
• Does the alleged public nuisance affect rights common to the general public or an entire community rather than to merely a group of individuals?
• Does the defendant lack control over the instrumentality that is alleged to have caused the nuisance? Was there a relinquishment of control of the product after being placed in the stream of commerce?
• Does the plaintiff have standing to sue as a representative of the general public?
• Are there applicable statutes of repose and limitation statutes?
• Is there a public policy against opening the “courthouse doors to a flood of limitless, similar theories of public nuisance…. against a wide and varied array of other commercial and manufacturing enterprises and activities”?  People ex rel. Spitzer v. Sturm, Ruger & Co., Inc, 309 A.D.2d 91, 96 (App.Div. 2003), appeal denied, 801 N.E.2d 421 (N.Y. 2003)
• Is there lack of causation?
• Can the plaintiff establish product identification?
• Is the underlying claim nonjusticiable or a political question that should not be resolved through civil litigation?

Increasingly, in the climate change arena, the law of public nuisance is being placed in service of the political and partisan passions that have swept across our land. Notably, in Native Village of Kivaluna v. ExxonMobil n Corp., 663 F.Supp.2d 863, the plaintiffs argued that 24 oil, energy and utility companies had contributed to global warming that resulted in rising sea levels and eroding coastlines. In Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, a collection of eight states, New York City and several nonprofit land trusts brought a nuisance claim against five electric utilities alleging that they were the largest emitters of carbon dioxide in the country. As the nation becomes further polarized over global warming and climate change public policy concerns, we stand on the brink of a new wave of nuisance litigation.

Our nation’s courts must resist the strong push and pull of those strong passions and remain committed to the traditional rule of tort law.  As Speelman observes, “the tobacco settlement marked the largest transfer of wealth in American legal history.  In scarcely 10 years, the American plaintiff bar had removed almost a half trillion dollars from the American business economy.”  If permitted to take hold in the courts in climate change litigation, public nuisance law could contribute to an even greater redistribution of wealth and  deleterious impact on the U.S. economy.

Equally important, as a matter of sound jurisprudence, public nuisance is too vague and imprecise an instrument to establish coherent, predicable rules for managing environmental concerns.  As the Fourth Circuit ruled in State of N.C. v. TVA, 2010 U.S. App. Lexis 15286 (July 26, 2010), in overturning a trial court’s injunction requiring emission controls at four Tennessee Valley Authority Plants, “while public nuisance law doubtful encompasses environmental concerns, it does so at a level of generality as to provide almost no standard of application.  If we are to regulate smokestack emissions by the same principles we use to regulate prostitution, obstacles in highways and bullfights, we will be hard pressed to drive any manageable criteria.”