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Throwing Cold Water on the Public Nuisance Legal Theory

recent article by Professor Richard Epstein, one of the nation’s most respected authority on tort law and Senior Fellow at Stanford University’s Hoover Institution, throws cold water on the favorite legal strategy behind the misguided lawsuits filed by New York City and seven California jurisdictions against energy manufacturers: using public nuisance law. He examines this legal theory “in order to explain why private lawsuits are the wrong instrument for dealing with the global warming threat.”

Professor Epstein focuses his attention on the New York City and San Francisco lawsuits calling it an “enormous stretch” to move from traditional public nuisances to climate change cases:


“Indeed, these public nuisance lawsuits are especially dubious, given that the oil companies did not by their sales emit any carbon dioxide into the atmosphere. The dangerous releases came from many different parties, both private and public, including the municipalities bringing these lawsuits.”


He further argues a “coherent regulatory program” is the proper way to address climate change.

If this sounds familiar, it should. Linda Kelly, the NAM’s general counsel and MAP lead, has discussed the “efforts to push the boundaries of tort law and especially to stretch the definition of an ill-defined legal concept called ‘public nuisance.”  She has called the lawsuits not only “misguided,” but also a “fundamental waste of the court’s time and the taxpayers resources. The issue of climate change is not an appropriate one for the courts to be trying.”

It’s worth mentioning the recent revelation that while the California cities and counties involved offered detailed descriptions of the alleged local effects of climate change in their lawsuits, they failed to mention such risks in their bond offerings to investors. Not only is this hypocritical on their part but it reveals the lack of integrity behind these lawsuits.

The MAP will remain vigilant in fighting back against continued attempts by a coordinated network of public officials, activists and plaintiffs’ lawyers to stretch the limits of tort law in search of a big payday.