The ancient common tort of public nuisance is all the rage these days. Its resurgence is particularly notable in climate change and environmental litigation, where it seems to be the “tort of choice” for plaintiffs seeking breathtakingly broad relief from global warming and trans-border pollution. Traditionally limited to local concerns, the tort now aspires to planetary dimensions. Its expanding scope has now attracted the attention of the United States Supreme Court in American Electric Power v. Connecticut, which will be argued this Spring. Read More »
Here’s hoping that the government lawyers responsible for pursuing the pending public nuisance litigation in Santa Clara v. ARCO et al take a close look at the recent cost award against the state of Rhode Island described in this article. Read More »
In a November 22, 2008 post on ClassActionBlawg.com, Paul Karlsgodt juxtaposed the Rhode Island Supreme Court's July 1, 2008 decision in State of Rhode Island v. Lead Industries Association, 951 A.2d 428 (R.I. 2008), and the Supreme Court of Canada's November 20, 2008 decision in St. Lawrence Cement, Inc. v. Barrette, 2008 SCC 64. They should not, however, be confused as comparable "public nuisance class actions."
In in re Lead Paint Litigation, 191 N.J. 405 (2007), the New Jersey Supreme Court held that various governmental entities did not state a viable common law nuisance claim for economic or personal injury damages against the former manufacturers of lead paint and pigment. The Court ruled that: 1) the conduct of land owners that fail to maintain their properties, rather than the remote conduct of the manufacturers of lead pigment paint that sold a lawful and then unregulated consumer product, was the proximate cause of any injury to the public good; 2) the plaintiffs, as public entities, lacked standing to sue for damages; and 3) permitting such claims would defeat the legislative purposes of New Jersey’s Lead Paint Act (“LPA”)1 and Products Liability Act (“PLA”)2, the latter of which is the exclusive remedy for harm caused by a defective product.3
The Supreme Court granted certiorari in two CERCLA cases today which may speak to the issue of manufacturer liability for environmental contamination when a manufacturer has sold a product which the purchaser then spills, causing the contamination. Burlington Northern v. U.S., Docket No. 07-1601, and Shell Oil v. U.S., Docket, No. 07-1607. The decision below (en banc, with 8 dissenters) is at 520 F.3d 918 (9th Cir.).
For those who may be following the California Supreme Court proceedings on the propriety of government entities retaining private outside counsel on a contingent fee basis to pursue public nuisance actions, you can check on the progress of the case at the court's online docket.