Modern Public Nuisance Movement Is a Growing Threat

 The Left is running a full-scale effort to reshape consumers’ lives using every tool at their disposal, be that through regulations, product bans, or ideological lawsuits.  A key part of this campaign is public nuisance lawsuits that seek to impose billions of dollars in liability on disfavored industries for “causing” amorphous, nationwide (or worldwide) problems like climate change, gun violence, or drug addiction. 

The climate change public nuisance lawsuits are a particularly deep well of opportunity for leftwing activists and officials.  Can’t stop people from buying meat through traditional regulations and legislation?  Don’t worry, just say that meat companies have contributed to climate change and sue them for billions in an effort to all but stop them selling meat.  Can’t stop people from buying gasoline?  Don’t worry, just sue oil companies, car companies, or anyone else who sold a gas-powered product, citing climate change.

Just think of the possibilities for the Left.  If climate change is a public nuisance under state common law, then basically any local government can sue the maker of a common consumer product, demanding money to “abate” the nuisance of climate change, which is to say demanding that somehow these companies stop the effects of worldwide climate change with their checkbook. 

It is hard to imagine a better path to reshaping large parts of our economy and society – and all without having to bother with details like public policy debates, the legislative process, or votes at the ballot box.

Luckily for consumers, there is a way to defenestrate the left’s climate change public nuisance effort, and the ticket to that brighter future comes in the form of a climate change public nuisance case from Hawaii—Sunoco v. Honolulu—that just came up for potential review before the United States Supreme Court.

A long line of climate change cases have come calling for the Supreme Court’s attention in recent years, many of which involved complex procedural questions that tantalized those of a more academic persuasion but disclaimed any desire to define the bottom-line conclusion for how these cases should end.

This case is different. It comes as the most complete package to the Court, arising from the Hawaii Supreme Court and squarely presenting core questions about whether state public nuisance law can properly be deployed to address global problems and change how whole industries operate across the country. 

The lawsuit is a classic of the genre, alleging that a list of oil companies like Sunoco and Exxon are responsible for contributing to climate change and should pay an untold fortune to help abate the harms of climate change to the City and County of Honolulu.  It is currently sitting on a conclusive decision by the Hawaii Supreme Court that state public nuisance law applies and Honolulu can go to trial.

Make no mistake, this Honolulu case offers a potential endgame. 

The case squarely asks whether one municipal plaintiff can cite an international problem like climate change and in turn use a single state’s public nuisance laws to steer policy for the entire country in multiple industries.  The decision below features a state supreme court analyzing the federal law of nuisance and determining what is left for the states.  And it reaches the opposite conclusion of at least one federal court of appeals (that barred a similar New York City lawsuit). 

It is important for the Supreme Court to take up this Honolulu case, make strong, clear statements about the contours of state public nuisance in this context, and resolve the novel legal questions that are driving forward dozens of lawsuits like this one with billions at stake in state courts across the country. 

Consumers deserve strong protection from the Supreme Court in connection with these climate change public nuisance cases.  It is one thing for coastal enclaves in places like Hawaii, California, or New York to pass draconian measures limiting what their consumers can buy and how they must live.  But it is entirely different (and far worse) when Honolulu or Oakland looks to the courtroom in an effort to impose its preferred lifestyle choices on consumers in the rest of the country. 

State public nuisance law has a place.  But it shouldn’t be a way for a handful of progressive enclaves to effectively obtain national regulatory authority over countless industries in the name of climate change.

And time is of the essence if consumers are going to be saved from these cases.  The list of targets for these public nuisance cases keeps growing (New York’s Attorney General targeted the meat industry just last month for its role as a “leading contributor to climate change”).  And not every industry will play its hand in litigation and fight for years up to the Supreme Court with billions on the line. 

The Supreme Court finally has a golden opportunity to take on the merits of the modern public nuisance movement and limit the near-limitless reach of the current wave of climate change public nuisance cases. They should take it.

O.H. Skinner is executive director of Alliance for Consumers and the former solicitor general of Arizona.  

https://www.realclearpolicy.com/articles/2024/03/22/the_modern_public_nuisance_movement_is_a_growing_threat_1020153.html