The Perils and Promise of Public Nuisance

abstract. Public nuisance has lived many lives. A centuries-old doctrine defined as an unreasonable interference with a right common to the public, it is currently the backbone of thousands of opioid and climate-change suits across the United States. It was a major force behind the landmark 1998 tobacco settlements and has figured in litigation over issues as diverse as gun sales, lead contamination, water pollution, Confederate monuments, and COVID-19 safety standards. Although this common-law oddity has shaped the face of modern tort law, it is unfamiliar to the public and typically ignored, even in law schools. When discussed, it often provokes anxiety: Is it a tort at all? Whatever it is, will it swallow tort law? The regulatory state? Or separation of powers as we know it?

This Article utilizes the current opioid litigation to explore the three most common sets of objections to public nuisance: traditionalist, formalist, and institutionalist. Public nuisance can seem unusual, even outlandish. At worst, it is a potentially capacious mechanism that allows executive-branch actors to employ the judicial process to address legislative and regulatory problems. Nevertheless, its perils are easily overstated and its promise often overlooked. Historically, public nuisance has long addressed problems such as harmful products. Doctrinally, it accords better with tort law than is commonly recognized. And institutionally, it functions as a response to nonideal conditions—specifically, where regulatory mechanisms underperform.

Drawing on long-standing tort principles of duties generated by risk creation, I propose a conception of public nuisance that highlights its coherence with familiar aspects of tort law and its consistency across past and present. Public nuisance is an object lesson in the common law’s balance of stability and evolution, across time and within varying regulatory contexts.

author. White Burkett Miller Professor of Law and Public Affairs, University of Virginia School of Law. I am grateful to the many people who have offered insights on this project, including Kenneth Abraham, Charles Barzun, Vincent Blasi, Pamela Bookman, Molly Brady, David Dana, Nora Engstrom, John Goldberg, Bert Huang, Robert Rabin, Micah Schwartzman, Anthony Sebok, Catherine Sharkey, Paul Stephan, G. Edward White, Benjamin Zipursky, and attendees of a discussion at the University of Virginia School of Law. I am especially grateful to Kenneth Abraham for introducing me to the topic and discussing public nuisance with me for upwards of fifteen years. I am grateful to Julia (JJ) Citron, Erin Edwards, Meaghan Haley, Nirajé Medley-Bacon, and Amanda Rutherford for excellent research assistance and Leslie Ashbrook and John Roper of the University of Virginia Law Library for excellent research support. All errors are mine.

Why is making obscene telephone calls like laying manure in the street? Answer: in the same way as importing Irish cattle is like building a thatched house in the borough of Blandford Forum; and as digging up the wall of a church is like helping a homicidal maniac to escape from Broadmoor; and as operating a joint-stock company without a royal charter is like being a common [s]cold; and as keeping a tiger in a pen adjoining the highway is like depositing a mutilated corpse on a doorstep; and as selling unsound meat is like embezzling public funds; and as garaging a lorry in the street is like an inn-keeper refusing to feed a traveller; and as keeping treasure-trove is like subdividing houses which so “become hurtful to the place by overpestering it with poor.” All are, or at some time have been said to be, a common (alias public) nuisance.1

Introduction

Public nuisance has lived many lives. A centuries-old doctrine generally defined as “an unreasonable interference with a right common to the general public,”2 it has recently served as the backbone for more than three thousand opioid lawsuits across the country, as well as hundreds more seeking to hold producers of greenhouse gases accountable for climate change.3 Twenty-five years ago, it provided the architecture for the lawsuits that impelled the tobacco industry to historic settlements of $246 billion with all fifty states.4 It has also spurred hundreds of mostly unsuccessful actions across the nation involving, among other things, handguns,5 lead contamination,6 water pollution,7 and predatory lending.8 Decades earlier, at the turn of the last century, officials used it to abate sewage discharge into rivers,9 to “repress the nuisance of bawdyhouses,”10 and to shut down a high-profile labor strike.11

All of this and more stems from a single cause of action developed in medieval England to allow the Crown to remove impediments from public roads and waterways.12 In the past decades, this common-law oddity has generated thousands of lawsuits in which state officials have sued private companies for the negative impact of their products or activities on public health and welfare. Through these actions, public nuisance has influenced American tort litigation and exerted an undeniable regulatory impact.

The opioid lawsuits highlight the two ways in which public nuisance is central to modern mass-tort litigation. First, the opioid lawsuits invariably contain public-nuisance claims. The plaintiff state, local, and tribal governments claim that the opioid products made or distributed by the defendants are a public nuisance under relevant state law—that is, that they constitute an unreasonable interference with a right held by the general public, in this case by jeopardizing public health and welfare. The plaintiffs make other claims too, such as state-law claims for fraud, deceptive marketing, corrupt practices, and unjust enrichment.13 Nevertheless, public-nuisance claims are a central feature of the litigation and a key to its momentum.

Second, no matter what the specific claims, public nuisance provides the template for the structure of opioid litigation and other suits like it. One striking feature of public nuisance is that it permits state officials to sue parens patriae—literally as “parent of the nation,” on behalf of the people of a jurisdiction—for an infringement on public rights by a private actor.14 Other types of parens patriae claims exist, but public nuisance was an early example (and an inspiration to other types of suits), which provides public actors with a ready and familiar template.15 In modern instances, such as tobacco, opioid, and climate-change litigation, the litigation adopts the architecture of a public-nuisance suit, with an official (such as a state’s attorney general or a locality’s district attorney) suing on behalf of the public. That these suits involve a variety of other claims should not lead us to assume that they would exist in the same manner absent the public-nuisance template. To the extent that such suits are now common, the structure of public nuisance has made a lasting imprint on American tort law.16

Although its substance and structure are embedded in modern American tort law, public nuisance occupies an uncertain, somewhat liminal position. It is virtually unknown to the general public, little discussed outside of litigation circles, and often ignored even in torts class. When it is discussed, it raises fraught questions. Is it even a tort? If not, what is it? Does its very existence threaten tort law? The regulatory state? Separation of powers as we know it?17 All in all, public nuisance exerts potentially powerful, but highly variable, real-world force, while provoking equally variable reactions from courts and commentators.

Here, too, the opioid litigation is illustrative. Every single state in the Union has sued opioid manufacturers or distributors, as have thousands of localities and some tribes.18 These suits have generated billions of dollars in settlements.19 At the same time, however, those proceeding to trial have met with mixed results. For example, in the first opioid case to go to trial in the country, an Oklahoma judge applying state public-nuisance law found Johnson & Johnson liable to the State of Oklahoma for $465 million.20 This trial judgment came after Oklahoma had settled identical claims with Purdue Pharma for $270 million21 and with Teva Pharmaceuticals for $85 million.22 But on cross appeal, in which the Oklahoma Attorney General claimed that the rightful amount owed by Johnson & Johnson was twenty times the trial judgment,23 the Oklahoma Supreme Court overturned the judgment and concluded that Johnson & Johnson could not be held liable under Oklahoma public-nuisance law at all.24

Notwithstanding mixed trial results, opioid litigation has imposed billion-dollar obligations, generated what some have called “the largest civil action in U.S.
history,”25 and emerged as perhaps one of the few issues in these fractious times on which all fifty state attorneys general have agreed.26 Whatever else the opioid litigation will ultimately accomplish, it has underscored that public nuisance’s role in the tobacco litigation was not a fluke and that we should not expect the opioid litigation to mark its last appearance. Whenever regulatory and legislative processes are perceived to have failed to address a public-health or welfare issue with catastrophic effects, public nuisance will remain an attractive option to executive-branch actors, a possible avenue for courts, and a potential liability for defendants.

Yet, the current suits and their resolutions encapsulate all of the conflicting attitudes toward public nuisance within the law. Public nuisance has driven massive and historic settlements but has, at best, a checkered record in the courtroom. It is a powerful tool, but one toward which many express ambivalence. The Restatement (Third) of Torts: Liability for Economic Harm, for instance, dismisses public-nuisance liability for products (such as tobacco or opioids) in a single comment.27 Some say that public nuisance is neither fish nor fowl, neither crime nor tort, and should be cast off into the box of antique legal trinkets with no modern use. Some say that to do otherwise is to ignore, and ultimately to undermine, the progress of the contemporary administrative state.28

This Article uses the opioid litigation to explore the three most common forms of objection to public nuisance. These are (1) traditionalist, (2) formalist, and (3) institutionalist. Traditionalist objections hold that public nuisance should cover only the situations for which it was originally designed—for example, blockage of public roadways or waterways. I show that, to the contrary, public nuisance has for centuries addressed problems such as harmful products and services, and its modern usage can find firm roots in tradition. I explore why courts and commentators in this context feel compelled to reject both centuries of doctrinal development and the law’s generally applauded ability to evolve. I conclude that traditionalist objections often go hand in hand with, and are generally driven by, formalist and institutionalist objections.

Formalist objections take many shapes but focus on the alleged problems of public nuisance as a tort doctrine. Some contend that public nuisance has never been a tort, or that it fails to address wrongdoing between parties and should therefore no longer be classified as a tort. Others accept public nuisance as a tort, but believe that it must maintain very narrow boundaries to avoid overturning or undermining other tort doctrines. I argue that public nuisance is more familiar from other areas of tort than these objections suggest. Drawing on long-standing tort doctrine recognizing duties arising from risk creation, I contend that public nuisance is of a piece with both other tort doctrines and the overarching goals of tort law.

Institutionalist objections, on the other hand, focus on the ramifications of public-nuisance litigation for various institutions of government. To be sure, some of these objections are formalist in nature, but they focus on the ramifications of public nuisance not for tort law, but for larger legal principles, such as separation of powers and the duties or prerogatives of the regulatory state. Here, public nuisance does present perils. It developed at a time of no regulatory state—indeed, little regulation at all—and its structure is not a first-best solution for our time. The question, however, is not whether public nuisance is the best tool, but whether it can still play a role, particularly when ideal processes fail. The history of the opioid debacle illustrates that regulatory failure is a reality, and public nuisance might complement rather than compete with other forms of regulation.

Finally, bringing together responses to traditionalist, formalist, and institutionalist objections, I propose a reconceptualization of public nuisance. Public nuisance has long been used to address threats to public rights, including those imposed by products. The responsibility it imposes on manufacturers and distributors is analogous to affirmative tort duties generated by creating a risk of harm. When a product imposes a risk not just to specific individuals, but to the public, public nuisance is an appropriate claim. Appropriate remedies may include abatement (including funds for abatement) and redress for harms incurred. At the same time, however, some constraints are necessary to ensure that public nuisance serves the public interest. It is important to ask whether public nuisance complements or undermines regulatory responses—but this is best answered with careful and thorough scrutiny on a case-by-case basis, not with a wholesale rejection of public nuisance.

The Article proceeds in five Parts. Part I introduces two distinct histories: the development of public-nuisance doctrine from medieval England onward, and the emergence of the United States’s current opioid crisis beginning in the late 1990s. These two disparate strands met and intertwined in public-nuisance suits brought by states and localities starting in the early 2000s and mushrooming around 2014. This potent combination spurred, highlighted, and escalated various objections to public-nuisance doctrine as a tool for addressing contemporary problems. Parts II, III, and IV address, respectively, the traditionalist, formalist, and institutionalist objections to modern public nuisance, as illustrated in the opioid litigation. Part V concludes by proposing an approach to reduce the perils of public nuisance while harnessing its promise as an encapsulation of the law’s ability to evolve and to develop overlapping but coexisting forms of regulation.