The misuse of public nuisance law to address climate change.

• Author: Shelson, James W.

IN THE 1990s, numerous "state attorney generals and numerous private contingent fee attorneys joined forces to sue tobacco companies in what is undoubtedly the nation's most famous and successful 'social policy tort' lawsuit. As a result of their ability to secure changes in the tobacco industry's practices that had long alluded state and federal legislators, private and public lawyers have continued to attempt to recapture that magic over the last decade. ... Their social policy tort-of-choice has been public nuisance--an ill-defined tort that can be molded and shaped by lawyers." (1)

More recently, plaintiffs have attempted to use public nuisance law in several recent cases to address climate change. Their efforts have met with mixed results because courts have reached different conclusions regarding standing, the political question doctrine, and preemption, the three core legal issues in these cases. The Second Circuit has allowed plaintiffs' claims to proceed, (2) the Fourth Circuit (3) and two federal district courts in California (4) have not, and the Fifth Circuit essentially rendered a non-decision. (5) On December 6, 2010, the Supreme Court granted certiorari on the Second Circuit case. (6) On February 2, 2011, the plaintiff in the Fourth Circuit case filed a petition for a writ of certiorari with the Supreme Court. This article demonstrates the many reasons why public nuisance law is particularly ill-suited to address climate change.

1. Public Nuisance Law

   1. Historical origins

      Public nuisance law originated in the twelfth century under the English common law. (7) In its earliest form, it was used to remedy infringements of rights of the Crown. (8) "The earliest nuisance cases, dating from 1168, were cases in which both the injured party sought abatement and sometimes compensation--and, at the same time, officers of the crown actively initiated actions to punish nuisances as criminal acts." (9) As a criminal writ belonging to the Crown, (10) nuisance "was used in cases that involved encroachments upon the King's land or the blocking of public roads or waterways. The King sought to punish these criminal infringements, commonly know as 'purprestures,' through criminal proceedings." (11) By the fourteenth century, nuisance law was "extended to include rights common to the public, such as roadway safety, air and water pollution, disorderly conduct, and public health (e.g., to stop the spread of disease)." (12)

      Public nuisance actions were typically criminal actions until a 1536 English court decision that allowed individuals to recover damages under nuisance law. (13) Under that decision, "the crime of public nuisance became also a tort in any instance in which the plaintiff could show damage which was particular to him and not shared in common with the rest of the public." (14) This was "a significant departure from the general rule that the courts would not impose tort liability upon a person for the violation of a criminal law that was intended to protect the public at large." (15)

      By the seventeenth century, Parliament had added to the types of conduct found by the courts to constitute the crime of public nuisance, "thus beginning a pattern of legislative bodies declaring certain activities to be public nuisances that continues to this day." (16) All jurisdictions in the United States subsequently enacted criminal statues covering such nuisances without attempting to define them, "or with at most a very general and rather meaningless definition." (17) "Such statutes commonly are construed to include anything which would have been a public nuisance at common law." (18) Distinctions eventually emerged between public and private nuisances, and they became separate torts. "If the defendant's actions harmed only a single plaintiff, the proper remedy was an action for damages, the precursor of private nuisance. If the nuisance affected the entire community, it most often was addressed by the local courts as a criminal or abatement matters. Actions for damages were not available in such cases." (19)

      Nuisances today are classified as public, private, and mixed. (20) A public nuisance affects an indefinite number of people, the public generally, and is normally but not always abated by a state officer. (21) A private nuisance affects one or a small group of property owners in a manner different from its impact on the public generally, and typically involves a private suit for damages. (22) Many nuisances fall into the mixed category because they involve both public abatement and a private suit for damages. (23) "This classification makes more apparent the inherent weakness of the law of nuisance; it is really a kind of judicial zoning but carried out on a sporadic, hit-or-miss basis." (24)

   2. Restatement (Second) of Torts and the Expansion of Public Nuisance.

      The modern formulation of public nuisance is found in Section 821B of the Restatement (Second) of Torts. Unfortunately, the Restatement' s formulation departs from the historical requirement that public nuisance involve a criminal interference with the public generally. "In 1966, William Prosser, the Reporter for the Restatement (Second) of Torts, tackled the law of public nuisance and sought to impose a rule-like structure on the tort." (25) Prosser's proposed draft of Section 821B sought to limit recovery to where there had been a violation of a criminal statute by defining public nuisance as follows: "A public nuisance is a criminal interference with a right common to all members of the public." (26)

      But some members of the American Law Institute ("ALI") "who saw Prosser's proffered language as a way to restrict the use of public nuisance in the environmental cases then emerging sought to have it reconsidered." (27) In 1971, ALI adopted a version of Section 821B "that unmoored the tort of public nuisance from the decades of law that generally had required a violation of criminal law." (28) As adopted, Section 821B defines a public nuisance as "an unreasonable interference with a right common to the general public." (29) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

      (a) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or

      (b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or

      (c) whether the conduct is of a continuing nature or has produced a permanent or long lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right. (30)

      The Restatement "is more helpful than the reasoning in many cases," but it fails to provide "meaningful boundaries for tortious liability." (31) Section 821B "serves as an invitation for judges and jurors to provide their own definitions of what constitutes 'unreasonable interference' and 'a right common to the general public' without the guidance generally provided by precedents." (32)

      Although public nuisance law originated more than 900 years ago, its use began to expand in the 1970s when the first attempts were made to use public nuisance against product manufacturers. (33) The expansion continued with the "Love Canal" environmental litigation in the 1980s. The courts in the Love Canal litigation blurred the distinction between public and private nuisance by borrowing "from public nuisance the liability expanding principle that a defendant can be held liable for creating a nuisance even if the defendant does not continue to own or possess the land or otherwise carry on or maintain the nuisance at the time of the litigation." (34)

      Public nuisance law was first utilized in mass products torts litigation as part of the litigation filed by American states against tobacco companies during the 1990s. (35) In 1994, the State of Mississippi filed suit against several tobacco companies, alleging unjust enrichment, indemnity and public nuisance. (36) Within three years, at least forty states filed suits against the tobacco manufacturers. (37) In general, the states sought reimbursement for the costs they allegedly sustained from tobacco-related illnesses. (38) Those cases were settled before judgment, so the courts never ruled on the validity of the states' public nuisance claims. (39)

      Public nuisance law was subsequently used to sue manufacturers of asbestos and lead paint. (40) Although these efforts generally failed, (41) courts reached "strikingly inconsistent conclusions" regarding the viability of public nuisance claims against product manufacturers because of the vague manner in which the tort is defined and inconsistent judicial understandings of the core elements of the tort. (42) "[N]o judicial consensus has emerged on some of the core issues that should establish the parameters of the tort of public nuisance. For example, what exactly is the public nuisance for which defendant may be liable? Is it defendant's conduct or the harm itself.... Similarly, courts disagree as to whether the plaintiff in a public nuisance action must prove underlying tortious conduct by the defendant--an intentional act, negligence, or a strict liability tort--or whether the existence of an objectionable condition itself establishes the tortious liability." (43)

      Some courts have "provided plaintiffs with a potentially potent weapon" by allowing states to pursue expansive damages for recoupment or reimbursement of medical or other payments "on the grounds that the state is acting as a 'quasi-sovereign' in a parens patriae action." (44) "This aggressive coupling of the state's unique ability to sue in a quasi-sovereign capacity with the assertion of public nuisance claims in mass products cases effectively reverses the 900-year old assumption that the state's remedies for public nuisance are limited to criminal prosecution and injunctive relief." (45)

2. The Climate...