Cooling Off Public Nuisance Claims

The Ninth Circuit's ruling in Native Village of Kivalina v. ExxonMobil Corp., ___ F.3d___, 2012 WL 4215921 (September 21, 2012) represents the most recent high-profile victory against efforts to use public nuisance claims to address issues more properly left to legislative solutions. Building on our extensive experience responding to such public advocacy suits against the tobacco, firearms, lead paint, and other manufacturers, Jones Day worked actively as part of a strong joint defense effort to obtain this win on behalf of the energy industry. This Commentary will briefly discuss the history of public nuisance litigation brought by government entities and look at lessons learned on how to defend public nuisance litigation. BackgroundPublic nuisance law has been a part of American jurisprudence since colonial times. It traces its beginnings to criminal actions and grew in early America to address both obstructions to public travel and violations of morals (e.g., brothels, bars, and more). Public nuisance law has evolved through the years. In the 1980s and 1990s, school districts and cities began using public nuisance suits to attempt to recover the costs of asbestos abatement. While the courts largely rejected those efforts, public nuisance claims gained traction in the mid-1990s when more than 40 states sued tobacco companies to recoup government expenditures allegedly attributable to their citizens' tobacco use. While the global tobacco settlement ended those suits prior to judicial opinion on their validity, the sheer magnitude of the settlement created an overwhelming incentive for others to try their hand at such claims. Starting in the late 1990s, more than 30 municipalities and others included public nuisance claims in their suits seeking to hold most of the major firearms manufacturers responsible for violent crime. Representing Colt's Manufacturing Company, Jones Day was a leader of the joint defense effort that won dismissal of many of the cases. Courts generally agreed that nuisance law did not provide the municipalities with a remedy against the lawful manufacture and sale of firearms, because the defendants' sale of lawful products did not interfere with a public right and because the alleged injuries were too indirect or remote from the manufacturers' conduct. Harm from firearms results from the criminal acts of others. In the one case that went to trial—NAACP v. A.A. Arms, Inc.—judgment was entered for defendants based on plaintiff's failure to establish that it had a special injury. The firearms litigation confirmed that, while typical public nuisance-related defenses remained important, broader threshold issues—including remoteness of injury and standing—were key to defeating these new efforts to apply public nuisance concepts in nontraditional ways. Public Nuisance and Lead Pigment Manufacturers

Despite the failure of public nuisance claims in the firearms context, some state attorneys general and county and city attorneys have continued to pursue public nuisance claims against product manufacturers, usually in contexts where they could not otherwise prove the traditional elements of a product liability or negligence claim. For example, for more than a dozen years, some states, cities, and counties have attempted to assert state law public nuisance claims against historic manufacturers of lead pigments and paints sold for architectural use. To date, none has succeeded, and only one such public nuisance claim remains. The lawsuits, which allege that the presence of lead-based paints on residences or other buildings poses a health risk to children, typically seek to have a handful of former manufacturers of lead pigments inspect and abate all lead paint in buildings built before the 1978 federal ban on the sale of lead paint for architectural use. They also demand that the companies abate all lead found in soil around the buildings, conduct a public education campaign, assist in blood lead screening for children, and train contractors in lead-safe work practices. Most cases have been thrown out before trial. For example, the Supreme Court of New Jersey ruled that the public nuisance claim brought by 26 New Jersey municipalities failed as a matter of law. In re Lead Paint Litigation, 924 A.2d 484 (N.J. 2007). It found that there was no violation of a public right, defendants no longer controlled their products when the alleged nuisance arose, and their manufacture and sale of lead pigments decades ago was not the proximate cause of the alleged public nuisance today. Id...