Lawyers are expanding the scope of public nuisance laws in an attempt to hold businesses accountable for nearly every problematic issue imaginable, including such far-fetched claims as drug addiction and climate change. This misuse of the legal system is making some attorneys wealthy while it saps our economy and the well-being of consumers.
The legal doctrine of public nuisance originated centuries ago under English common law to address wrongful interference with land or real property. Today, it has become a go-to strategy for lawyers who want to cash in on environmental, health-based or other public suits against corporations. They lobby state and local governments or other entities to back the suits, with the lawyers handling the litigation on a contingency-fee basis.
Far from the original intent, public nuisance lawsuits have expanded to the point where businesses can find themselves being dragged into court over a commercial act as common as making and selling a common product. Thanks to judges entertaining creative yet entirely fatuous legal theories, we’ve seen attorneys prevail even when they have failed to prove who is actually at fault or if the product in question caused any actual harm. The targeted companies are forced to expend time, resources and capital to defend themselves, regardless of how baseless the claim is.
This has happened repeatedly. Litigation has been initiated in Ohio, West Virginia, California and other states addressing such things as alleged plastic pollution, opioid abuse, energy production and recycling. Many corporations agree to settle the case under the lawsuit’s nuisance value — the amount of money needed to get the case dismissed — even if the case is meritless.
There are legitimate conflicting points of view about issues revolving around public policy and product safety. However, public nuisance suits are not the way to resolve the debates and were never intended to be used in such circumstances. The broadening of the scope of public nuisance is exposing companies to the possibility of unlimited liability allegations involving their products. These are core businesses that employ millions of workers and provide services and products in essential industries such as healthcare, energy and manufacturing. The cost of defending against public nuisance litigation hinders innovation, product availability, tax revenues and job creation.
The damage caused by state and local governments’ misapplication of public nuisance law is exacerbated by the lack of clear statute-of-limitations laws in effect. Because of this deficiency, state attorneys general and local governments partnering with plaintiff attorneys sometimes attempt to recover compensation for alleged harms that occurred years — and even decades — in the past. This and other issues have led the American Law Institute to state that public nuisance law is an unsuitable way to address product-based injuries.
The expansion of public nuisance law will not only strain our overly burdened court system, delaying justice and remedies for the truly aggrieved, but in a cut-throat global economy, it turns a baton into an anvil in the race for world leadership in emerging digital and technological industries.
Consumers ultimately pay the price when public nuisance law is misused through higher costs on everyday goods, a decrease in innovation and limited product availability. These lawsuits not only drag businesses into costly, lengthy trials, but also force every business to prioritize shrinking potential legal exposure instead of prioritizing company goals such as innovation and growth.
State legislatures can help rein in the exploitation of public nuisance law by approving commonsense reforms of the system. There are proposals in place to solve this legal abuse issue, which include measures that would narrow the definition of nuisance and require municipalities to meet evidentiary thresholds, including proof of damages.
Public nuisance law has been perverted from its original doctrine by rapacious lawyers exploiting societal problems for a massive payday. It is a wholly inadequate and insufficient way to address complex public policy issues. Recognizing this and taking steps to prevent this abuse from recurring should be a top priority for lawmakers.
