Alarming Expansion of Public Nuisance Law
An alarming new trend reveals a little-known legal tool is being utilized as the basis to pin the blame on businesses for everything from bullying to car thefts. The trend is driven by attorneys who claim to represent the broader public interest, but their cases often fail to prove who actually is at fault or possibly caused the harm in question.
Lawyers pitch their services and potential lawsuits to state and local government officials and others on a “contingency fee” basis. In doing so, they employ a centuries-old legal theory known as “public nuisance” in order to sue companies for allegedly causing various environmental and social harms.
Today’s public nuisance lawsuits are vastly different and widely expanded from the legal theory’s original intent. It has evolved such that merely selling an everyday product can create virtually unlimited liability.
Today’s most common public nuisance lawsuits include:
Opioids
- The largest of today’s public nuisance lawsuits target pharmaceutical manufacturers, distributors, and pharmacies, seeking costs associated with treating and fighting opioid abuse. Thousands of state, local, and tribal governments have filed public nuisance lawsuits seeking to make the pharmaceutical industry pay for costs related to opioid addiction.
Climate Change
- Climate change public nuisance litigation started out as a political or regulatory effort to impose new rules for energy production and use, but it has now turned into just as much about deep pocket jurisprudence as the opioid cases. Today, about three dozen local and state governments are suing energy producers for the costs they say they will have to spend to deal with the impacts of climate change, such as building sea walls to protect shorelines. In short, they allege that by producing the energy Americans need and use every day, the companies knowingly created the public nuisance of global climate change. Various courts have found climate change is not a matter for courts to resolve, but instead is a complex global problem requiring a global, public-policy-based solution.
Social Media
- One of the newer mass public nuisance litigations has targeted what appears to be the latest punching bag for any variety of societal issues: social media. In this series of lawsuits, hundreds of school districts are suing social media companies Facebook, Instagram, Snapchat, TikTok and YouTube to pay them for costs they associate with student use of these platforms. The lawsuits allege the companies’ social media platforms are public nuisances because students are addicted to these platforms, which, in turn, interferes with school operations and requires schools to spend resources on student mental health services, disciplinary actions, investigating threats made on the platforms, and updating school policies, among other things.
Car Thefts
- Several local governments have taken this new rash of public nuisance suits even further, suing a couple of automakers because local thieves stole cars the companies sold to residents in their communities. In 2020, a group of teenagers in Milwaukee discovered a way to steal certain model cars made by Hyundai and Kia by “hotwiring” the car and circumventing the vehicles’ anti-theft devices.
Environmental Cleanups
- Expansive government public nuisance lawsuits over environmental clean-ups present a different, but equally concerning abdication of traditional public nuisance elements. In these cases, the contamination may very well be a public nuisance, but rather than targeting those who engaged in the illegal activity that caused the public nuisance, the lawsuits target the manufacturers of the products, regardless of fault or passage of time. This includes, among other things, public nuisance lawsuits over polychlorinated biphenyls (PCBs) and per- and polyfluoroalkyl substances (PFAS).
Plastic and Plastic Packaging
- Perhaps the oddest new public nuisance lawsuit comes out of California where a trial court recently allowed a public interest group, Earth Island Institute, to sue companies for participating in California’s recycling program. To be clear, the companies are being sued for properly labeling the recyclability of plastic bottles they sold. New York Attorney General Letitia James invoked public nuisance law to sue Pepsi to clean up plastic bottles others discarded in the Buffalo River while California Attorney General Rob Bonta filed a public nuisance lawsuit against ExxonMobil for plastics pollution around the world.
Vaping
- Trial lawyers were also quick to capitalize on the public health crisis caused by the increased use of e-cigarettes by minors, and the harm caused by illicit vaping products. They recruited school districts, local governments and states to file public nuisance lawsuits against Juul Labs and other e-cigarette companies, claiming the companies created a public nuisance by marketing their products in a way that gave rise to a vaping epidemic. Rather than wage expensive litigation on multiple fronts, the companies agreed to settlements, including claims brought by state and local governments, totaling more than $2 billion, ending the litigation onslaught.
Read our op-ed: Public Nuisance Laws Have No Place In Product Liability Determinations
Read our press release: Alarming Expansion in Public Nuisance Litigation Revealed
Read the full report: The Plaintiffs’ Lawyer Quest for the Holy Grail: The Public Nuisance “Super Tort”
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