The American Tort Reform Association (ATRA) issued an insightful report this week explaining how plaintiffs’ attorneys are attempting to turn the tort of public nuisance into a “super tort” that would create liability even over lawful and highly regulated activities. The report is titled, “The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance ‘Super Tort.’”

In the report, ATRA explains that in this attempt to create a “super tort,” the lawsuits discard the basic principles of tort liability, seeking instead to subject “businesses to liability to solve a societal problem—regardless of fault, who caused the harm, whether the elements of the tort are met, or even if the liability will actually address the issue.”

The report covers several different litigations in which plaintiffs’ attorneys are currently trying to use public nuisance lawsuits to create such liability, including over opioids, vaping, climate change, and environmental cleanups. 

As in the climate change cases, ATRA shows how plaintiffs’ attorneys are seeking to target hot-button issues and take on cases for “free” by using contingency fee agreements, making these lawsuits attractive to politicians who want to seem like they are taking action against a public problem.

Such lawsuits are concerning to manufacturers all across America. Manufacturers should not be punished through novel tort liability for making lawful, beneficial products, such as oil and gas, that people rely on and need every single day of their lives.

In the section on climate change, ATRA cites to MAP’s multi-part “Beyond the Courtroom” series, which traces the origins of the tort litigation campaign against energy manufacturers over climate change and explores the funding and motivations behind these lawsuits.

MAP’s report also shows how the plaintiffs’ lawyers’ efforts to cash-in on climate change actually undermines real solutions. The best way to address climate change is to work with manufacturers.  Innovation and collaboration—not litigation—are the proven ways American can bring about the types of society-wide technological advancements needed to address this shared global challenge.

Kudos to ATRA on a very well-done report!