Environmental Litigation
Over the past several years, trial lawyers have been working to expand the legal doctrine of public nuisance as a vehicle for new types of profit-generating lawsuits and as a backhanded means of trying to change public policy.
Public nuisance doctrine, grounded in centuries of American and English common law, traditionally allowed government entities to address public actions that violated statutes or involved the possession or use of real property. The legal doctrine that not long ago might have been used to stop neighbors from playing their radios too loudly is now claimed by plaintiff lawyers as a cause to stop the manufacture of products, address broad environmental policy issues, and “remedy” actions that were legal when they took place decades ago.
Recent Public Nuisance Industry Targets
Lawsuits filed in Ohio, Rhode Island, Wisconsin, New Jersey, California, New York, Texas, and Missouri against paint manufacturers have cited the public nuisance legal theory as a basis to sue paint manufacturers for the presence of lead in paint coatings applied to houses decades ago prior to a ban issued in 1978. The use of the nuisance doctrine by plaintiffs’ lawyers is a ploy to circumvent statutes of limitations that require lawsuits to be filed within a specified time period, as well as to address the nature of a product that at the time was produced legally but that has been found to be harmful.
Similarly, gun manufacturers have been sued under the public nuisance doctrine, although a number of state and federal courts have dismissed these claims.
California Attorney General Jerry Brown is pursuing a nuisance suit against the automotive industry over the perfectly legal activities of producing and operating motor vehicles. The state claims that auto manufacturing has led to global warming and in doing so has “reduced California’s snowpack and the fresh water it provides, raised sea levels along the California coast, increased smog over cities and boosted the threat of wildfires. This collective nuisance has cost the state for assessments and preparations.” Read the article-
The Need for Restraint
Many if not most human activities generate some level of impact on the environment and natural resource supplies, and most products manufactured or services offered probably have some remote potential for abuse in some obscure manner. The use of public nuisance doctrine as a cause of action for pervasive litigation may fuel trial lawyer profits but is not sound public policy. Regardless of the perceived merit of any stated public policy goals by public nuisance litigants, the approach is legally specious, misdirected, and guided firmly by a desire for lawsuit profits.
The U.S. Congress and state and local legislative bodies are the places where far-reaching public policy should be debated – not the court system. The courts must continue to reject lawsuit claims based on novel public nuisance theories.
