by Phil Goldberg

For years, there has been a largely unsuccessful effort to turn public nuisance into a “super tort” for suing manufacturers over a variety of political, social and environmental issues that are fundamentally legislative or regulatory in nature.

This super tort theory is the legal idea that has been at the heart of the nearly 20-year litigation campaign seeking to blame climate change on energy producers. These cases make headlines, but that does not mean they are based on good law.

Courts across the country have been rightfully skeptical of these new public nuisance claims. Public nuisance has a long history in the U.S., and it has always been about dealing with local matters, such as vagrancy and public access to local land and water — not national or societal issues.[1]

Now we can add federal courts in West Virginia and Illinois, and a state court in Delaware, to the long list of courts rejecting such attempt to expand public nuisance law.

Although the cases in question were not climate-related — they involved different products and situations — they signal the type of ongoing skepticism from the courts toward the super tort theory. They are a harbinger of what to expect if climate cases are heard on the merits of their claims.

In City of Huntington v. AmerisourceBergen Drug, the U.S. District Court for the Southern District of West Virginia in July rejected public nuisance claims that lawful distributors of certain medications should be held responsible when the medications are misused.[2]

In In re: Paraquat Products Liability Litigation, the U.S. District Court for the Southern District of Illinois in February dismissed public nuisance claims against a manufacturer over personal injury claims from a federally approved product used by farmers to protect crops.[3]

And in State of Delaware v. Monsanto Co., the Delaware Superior Court in July dismissed public nuisance claims against a manufacturer when other entities allowed the products it sold to escape into the environment.[4]

Just as in the climate cases, the plaintiffs in all three cases argued that defendants there should pay millions or billions of dollars, because, despite the benefits of their products and the regulatory systems created to manage risks, the companies either knew or could have been aware of potential risks the products posed.

The courts all agreed, though, that manufacturers and others in the stream of commerce are not liable under public nuisance law for unintended consequences or inherent risks associated with downstream use or misuse of beneficial products. The courts made several points that directly correlate to climate litigation.

First, as the federal judge in West Virginia stated, the tort of public nuisance does not apply to the marketing and sale of a legal product — only to unlawful local disturbances and public use matters. Ruling otherwise would be “inconsistent with the history and traditional notions of nuisance.”

The Delaware judge echoed this: “[P]roduct claims are not encompassed within the public nuisance doctrine.”

Second, it does not matter whether the manufacturer was aware of the product’s inherent or downstream risks. As the federal judge in Illinois explained, it is not sufficient to allege the company knew of the dangers but “failed to ‘tackle the problem.'”

Otherwise, as the federal judge in West Virginia stated, this theory could be used “against any product with a known risk of harm, regardless of the benefits conferred on the public from proper use of the product.”

Third, the tort of public nuisance is not about monetary damages, including to deal with the effects of the public nuisance. It is only for stopping the nuisance-causing activity or abating the public nuisance.

In these cases — just as in climate litigation — the plaintiffs are seeking only money, not solutions. As the courts have explained, the general rule is that governments are not permitted to get monetary damages in public nuisance lawsuits.

The federal judge in West Virginia made this point clearly: “Any such monetary award — whether styled as damages or ‘abatement damages’ — is not properly an element of equitable abatement relief.” The federal judge in Illinois similarly held that plaintiffs cannot simply seek money “for their alleged injuries rather than abatement of any true public nuisance.”

Not surprisingly, these were some of the reasons the U.S. Court of Appeals for the Second Circuit gave when it dismissed City of New York v. Chevron Corp., New York City’s climate public nuisance suit, last year.[5] The court said:

Stripped to its essence, then, the question before us is whether a nuisance suit seeking to recover damages for the harms caused by global greenhouse gas emissions may proceed under New York law. Our answer is simple: no.

America’s courts continue to speak loud and clear: Calling something a public nuisance does not make it so. It is time for state and local leaders to stop this repeated effort to sue manufacturers in the face of important societal issues, from climate change to public health.

Identifying solutions to climate change — at both global and local levels — is a legislative and regulatory matter that cannot be decided in the courts. Public officials should drop these lawsuits, and join manufacturers in working toward real solutions to our most pressing shared challenges.

Read the full column here.