Misguided 'Public Nuisance' Lawsuits Threaten US Manufacturing Success
The men and women in America who make the products we use every day now contribute more than $2.2 trillion to the U.S. economy. As optimism in the manufacturing sector reaches historic levels, the industry continues to expand and hire more employees. But there’s a growing threat to manufacturers’ success in the United States: misguided litigation.
There has been a resurgence of lawsuits targeting manufacturers brought by plaintiffs attempting to hold them liable under the legal theory of “public nuisance.” It is a dangerous trend that could harm manufacturers of all sectors and sizes. Recently, this litigation has taken the form of public nuisance lawsuits blaming manufacturers for global climate change.
Lawsuits are now pending in California, New York, Colorado, and Washington against energy manufacturers. The plaintiffs claim emissions have damaged or will lead to harm to local municipalities. The potential effect of these lawsuits, driven by trial attorneys working with politicians to sue on behalf of local governments, is to dramatically expand the scope of public nuisance law, making virtually any manufacturer a possible target of public nuisance litigation.
Similar litigation has been tried in the past and rejected by the courts, including a unanimous U.S. Supreme Court decision in 2011. In American Electric Power Co., Inc. v. Connecticut, the Supreme Court ruled that the regulation of carbon dioxide and other greenhouse gas emissions is principally a matter for Congress to decide — not the judiciary. The Court understood that allowing claimants to pick winners and losers and to sue anyone or anything that releases carbon dioxide is not a sensible or fair path forward.
The public nuisance argument has been stretched far beyond climate change. In California, local governments are seeking to hold paint manufacturers responsible for the removal of lead paint in homes throughout the state. The plaintiffs are seeking retroactive damages even though the paint was legally sold and used at the time it was applied, and the manufacturers have no control over the conditions in the private homes in which the paint was allowed to deteriorate over many decades. Nevertheless, California courts have permitted the case to proceed, potentially subjecting paint manufacturers to expansive public nuisance liability for a product sold over 60 years ago.
Fortunately, many respected legal voices agree that these lawsuits should be dismissed. Fifteen state attorneys general recently filed an amicus brief urging a federal judge in the U.S. District Court for the Northern District of California to dismiss San Francisco and Oakland’s lawsuits against manufacturers. The attorneys general argue that such misguided lawsuits represent a slippery slope, with the potential result that any entity using fossil fuels — including states themselves — could become a target of costly lawsuits.
Three of the attorneys general who signed the brief, including Mike Hunter from Oklahoma, Leslie Rutledge from Arkansas, and Alan Wilson from South Carolina, recently joined the National Association of Manufacturers (NAM) for a panel discussion on this issue. And the U.S. Department of Justice Department filed an amicus brief of its own supporting the attorneys general in arguing for the case to be dismissed. A hearing in this case took place on May 24, when manufacturers argued for dismissal. These briefs are a significant step in defending America’s manufacturers and discouraging further misguided litigation.
Manufacturers of all sectors and sizes are at risk from these efforts to expand public nuisance liability. These lawsuits attempt to set up a false choice between manufacturing and environmental stewardship. The truth is that manufacturers have worked hard to reduce their environmental footprint over the years, including by reducing emissions by 10 percent over the past 10 years while increasing their value to the economy by 19 percent. At the end of the day, these lawsuits won’t help workers, families, or the environment; they will harm the integrity of our legal system.
Precedents set in litigation against manufacturers of all sorts — from paint, to energy and more — could be applied to target other businesses or industries in the future. Unless curtailed, these lawsuits could jeopardize the success and growth of manufacturing, including the 12.5 million jobs manufacturing provides for hardworking Americans.
Lindsey de la Torre is the Executive Director of the Manufacturers’ Accountability Project, an arm of the National Association of Manufacturers.