Last week, a court in California ruled against the plaintiffs in an opioid “public nuisance” case, one among a class of cases cited as models for the climate litigation industry’s (initial) wave of litigation also styled as “public nuisance” climate suits. This suggested the latter have more weaknesses than even previously known. Now the Oklahoma State Supreme Court has dealt the movement a severe blow.
As the Wall Street Journal editorial page notes:
Tuesday’s ruling by Oklahoma’s High Court is especially notable because it repudiates the abuse of “public nuisance” liability, which plaintiffs attorneys are employing around the country to shake down gun makers, oil and gas producers and other businesses progressives hate.
As the opinion for the 5-1 majority explains, public nuisance law originated in the 12th century as a criminal remedy to protect and preserve the rights and property shared by the public. It evolved into a common law tort that “covered conduct, performed in a location within the actor’s control, which harmed those common rights of the general public.”
For instance, an oil company could be sued for a spill that damages waterways. But the mere act of making or selling legal products “rarely cause a violation of a public right,” the majority writes, adding that manufacturers don’t have control of products once sold.
The Justices stressed that addressing social problems like opioid addiction is the job of the legislative and executive branches, not the courts. That’s a useful reminder to judges who are tempted to loot companies under the trial bar’s ever-expanding theories of liability.
Expect an even more wrenching turn by the climate litigation industry from its reliance on “public nuisance” theory, presumably to the recently concocted alternative theory of state consumer fraud offenses (while, curiously, still seeking the nuisance remedy).