Los Angeles, California and numerous other states, counties, and cities across the country are engaged in an intense legal battle against the US energy industry in state courts. These entities have filed lawsuits against major energy companies like ExxonMobil and Shell, as well as the main trade association for the oil and gas industries, alleging that they have contributed to or facilitated the public nuisance of climate change.
The plaintiffs are hopeful that, based on previous mass-tort settlements related to public nuisances, they will be able to secure a massive settlement worth potentially billions of dollars from the energy companies. They point to recent opioid settlements where companies like Johnson & Johnson and Purdue Pharma agreed to pay billions of dollars as evidence that such large sums are possible. The largest mass-tort settlement to date was the $246 billion settlement with the tobacco industry in the 1990s.
However, critics argue that the plaintiffs are misusing the concept of public nuisance and stretching its original meaning and intent. Traditionally, public nuisance has been defined as an illegal and unreasonable interference with the public’s right to enjoy public lands or waters. It has typically involved actions like dumping toxic waste into rivers. In these cases, state or municipal governments would sue to protect public access to these lands or waters and seek to recover costs from those responsible for the illegal activities. Manufacturing or selling legal products, especially those heavily regulated, has not traditionally been considered a public nuisance.
Moreover, opponents argue that it’s unfair to hold the energy companies solely responsible for climate change when other industries and international actors also play significant roles. They point out that China, for example, is the world’s largest emitter of greenhouse gases, yet none of its companies have been sued in these cases. This selective targeting raises questions about the plaintiffs’ motivations and the effectiveness of these lawsuits.
Furthermore, critics contend that expanding the scope of public nuisance law in this manner could have far-reaching consequences. They worry that if the courts accept this broad interpretation, it could open the floodgates for lawsuits targeting a wide range of industries for societal harms like drunk driving or health issues related to the consumption of certain foods. Public nuisance law was never intended to be a substitute for legislative policy or a way to address the inability to prove other legal claims like fraud or product liability.
As these legal battles continue, it remains to be seen how the courts will interpret and apply public nuisance law in the context of climate change. The outcome of these cases could have significant implications not only for the energy industry but also for the larger debate surrounding climate change and the appropriate avenues for addressing it.
[NOTE: The following citations have been removed from the article: bloomberglaw.com, the content of this Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners. ]