Late last year, MAP Special Counsel Phil Goldberg moderated a Lawyers for Civil Justice panel, “The New Nuisance: The Re-Invention of Nuisance Law,” on recent attempts to dramatically expand the legal theory of public nuisance. The panel examined how current public nuisance actions—including those over climate change—are completely detached from the traditional uses of the legal theory and tort system. Rather than impose liability for wrongfully caused harm, they seek to impose regulations and liability on companies over lawful, beneficial products and services. Thus, there is no legal foundation for these cases. Yet, they are still filed.
The panelists included Meta Deputy General Counsel for Global Litigation Scott Tucker, NYU Law School Professor Richard A. Epstein, and Faegre Drinker partner Andrew Campbell.
The panel discussed the origin of the tort of public nuisance, how the current lawsuits seek to change the elements and purpose of the tort, and the political nature behind many of the current public nuisance litigations. They explained that many of the new public nuisance actions seek to regulate through the courts, thereby bypassing the checks and balances of the legislative and regulatory processes. The lawsuits also seek to impose huge liability even if the conduct and the products at issue are lawful and non-defective.
The group observed that litigation based on novel uses of public nuisance law has generally not been successful in the courts, particularly when they reach the appellate level. Most state high courts that have considered the legal merits of these claims have rejected them and dismissed the cases. Judges have held that public nuisance law does not impose blame or obligations on companies putting lawful products into the stream of commerce and that fundamental liability principles—including defect and causation—cannot be cast aside.
For a short explanation on what public nuisance law is and why it does not give rise to climate liability, here is a link to a MAP video on the subject.
In addition, Phil Goldberg published an article detailing the legal shortcomings of these legal theories in Mealey’s: Philip S. Goldberg, Is Today’s Attempt at a Public Nuisance “Super Tort” The Emperor’s New Clothes of Modern Litigation?, 31 Mealey’s Emerging Toxic Torts 15 (Nov. 1, 2022).