American Tort Reform Association New Report: “The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance ‘Super Tort’”

The American Tort Reform Association (ATRA) recently issued a report titled, “The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance ‘Super Tort,” that examines efforts by the plaintiffs’ bar to expand the tort of public nuisance into a Super Tort. The report analyzes the legal and practical shortcomings of litigation targeting manufacturers and other businesses to pay for social and political issues, irrespective of traditional liability requirements and the widespread benefits the products and services targeted in these lawsuits provide to the American people.

The first section of the report “explains what public nuisance theory is, how it has long been used, and how plaintiffs’ lawyers are trying to re-engineer it into a Super Tort. What we find is that plaintiffs’ lawyers typically look for a crisis that people want to solve. This can be a hot-button political issue like climate change. . . . It doesn’t matter whether the companies actually caused the crisis or are legally responsible for it. In fact, they often sue entire industries to cast blame in broad strokes in an effort to get away from having to prove specific allegations against any specific company.”

The report then discuses several ongoing public nuisance cases and the many decisions by courts across the country making clear that public nuisance cannot be used to remedy pervasive societal ills. In its climate litigation section, ATRA highlights how the lawsuits have been generated: “the lawyers and activists set about the country like traveling salesmen trying to convince local and state governments to file public nuisance lawsuits against the oil and gas industry. These lawsuits have sought to blame climate change on energy producers—regardless of any wrongdoing, fault, or causation—and demand they pay for the local infrastructure projects to address the effects of climate change.”

The report also underscores the broad understanding in the legal community that subjecting manufacturers to liability for climate change under state law does not make legal or practical sense. It walks through the rulings to date, and the fact that “the past three presidential administrations may not agree on much, but they all have filed briefs in this litigation explaining the limitations of state law to these climate cases.”

The climate litigation section concludes: “At this point, it is painfully obvious that, even though climate public nuisance cases are repeatedly filed around the country and courts in some states are allowing them to play out for years, climate change is not a liability question for state courts, but a complex global problem requiring a global, public policy-based solution. . . . There is no doubt the U.S. Supreme Court will be called on again to resolve this split in rulings.”

We recommend this report to anyone interested in learning more about the history and problems with turning public nuisance into a “Super Tort” in climate and other litigations.