Exploiting Public Nuisance Law to Target Entire Industries

Clever, rent-seeking attorneys are successfully misusing public nuisance laws to win big paydays from corporate victims. As usual, these litigations against members of the business community end up costing consumers and family breadwinners.

The centuries-old doctrine of public nuisance has long been defined as an unreasonable interference with a right common to the public. It was originally used to address simple problems that impacted peoples’ daily lives, like when someone obstructs a public road or water way. But modern-day tort litigators have invoked public nuisance to attack companies they say are responsible for societal problems including climate change, drug addiction, and tobacco-related health issues. When they succeed in capturing settlements or court awards, the plaintiff attorneys can profit from enormous legal contingency fees.

We’re seeing these cases multiply across the country. In Maryland, local governments are preparing to argue against Big Oil before the state’s Supreme Court. In Oregon, Multnomah County is suing major oil companies over the 2021 “Heat Dome” disaster. In Washington, D.C., a top House committee has launched a probe into a climate activist group accused of attempting to influence judges. And nationwide, observers note that localities and states are increasingly using litigation to shape national economic policies, with some lawyers anticipating enormous paydays.

This overly ambitious application of public nuisance shifts lawmaking authority away from elected legislative policymakers, where it belongs, to the judicial system. Applying broad legal decrees to intricate, multi-faceted major policy questions may fail to provide the thoughtful, nuanced solutions these issues deserve.

Attorneys often partner with state attorneys general and local communities to bring public nuisance suits against wealthy defendants. Elected officials are happy to go along, as they can tell constituents they are working to address big, hot button national issues, with the added attraction of a possible financial windfall at the end.

Companies can find themselves being targeted even when they make popular products that are in complete compliance with applicable laws and regulations. Consider Kraft, which faced a meritless lawsuit claiming its Velveeta mac and cheese cups took longer to cook than advertised. Although the case was ultimately dismissed, it underscores how easily litigants can pursue baseless claims.

The abuse of public nuisance law is made worse by the lack of clear statute of limitations protections. As a result, corporations can be sued for conduct that happened decades ago, with only a tenuous connection to actual or intentional public harm."

Because of the legal ambiguity, costs are driven up, innovation is deterred, and business expansion is discouraged—ultimately affecting consumers’ accessibility to household goods. It can also lead to unnecessary burdens on the legal system, as public nuisance suits expand because of the lack of clear guidelines restraining them.

States are beginning to pass reforms to rein in the public nuisance Montana recently enacted legislation to address public nuisance.

The Montana bill, HB 791, was signed into law this May. It revises the state’s nuisance laws to clarify and clearly define the legal concepts of public and private nuisance. It was crafted to respond to attempts by state and local governments to turn public nuisance law into what has been called a “super tort” that puts makers and sellers of lawful products on the hook for the cost of addressing societal problems.

Other states should consider supporting similar legislative action to prevent profit-motivated attorneys and their governmental allies from misusing public nuisance law to address complex public policy issues.