Stop the misuse of public nuisance law

OPINION:

In a transparently cynical maneuver to increase revenue to fund runaway spending, state and municipal governments are increasingly turning to public nuisance lawsuits targeting large corporations with deep pockets to meet their needs.

This is not the intended purpose or logic behind the long-standing concept of public nuisance law, and the practice overall must be regulated better. Here’s how it works. Local governments and state attorneys general partner with law firms specializing in mass tort lawsuits or other actions that seek to scapegoat corporations for large-scale societal problems, such as tobacco use, lead paint exposure or climate change, even without sound evidence. These efforts often include massive advertising campaigns with which we’re all familiar, often financed by third-party investors, to recruit individual claimants or brazenly sue on behalf of the population at large.

When those lawsuits hit the “jackpot,” the court awards or settlements can bring in millions or even billions of dollars, significant portions of which are shared by governments, attorneys and third-party investors not impacted by the alleged harm.

Such actions violate the original intent of public nuisance law, a centuries-old legal principle that allows truly harmed individuals to stop others from engaging in behaviors such as blocking public thoroughfares or polluting rivers or other bodies of water. Under no circumstances were public nuisance lawsuits devised to address complex societal problems that legislation or even justifiable regulatory action can address more capably and fairly.

The misuse of public nuisance laws in this manner occasionally holds innocent businesses liable for social harms, even when there is little or no reasonable evidence that the targeted companies are at fault. As one familiar example, are oil companies really responsible for global warming? What about countless other atmospheric carbon contributors, both natural and man-made? Should they all be sued too?

Despite their illogic and unfairness when applied to advance “social justice” causes, public nuisance cases of this sort persist. In 2025, for example, Hawaii’s attorney general filed a lawsuit against oil companies, including BP, Shell, and Exxon Mobil, listing eight causes of action, including negligence, nuisance, trespass and “harm to public trust resources.”

Perhaps predictably, California has dipped its toes into similar lawsuits accusing Exxon Mobil, BP, ConocoPhillips, Shell, Chevron and other energy companies of intentionally misleading the public about climate change.

The American Tort Reform Association states that this profit-motivated legal strategy produces “super torts” that attempt to make businesses liable for societal problems, regardless of fault, who caused the harm, whether the elements of the tort are met, or even whether the liability will actually address the issue.

Encouragingly, however, some state courts are pushing back.

The Ohio State Supreme Court, for instance, recently rejected a public nuisance super tort mounted by several Ohio counties against national pharmacy chains that sought to impose industrywide liability on the businesses for costs associated with treating opioid abusers. The court stated that a public nuisance is not a products-based tort at all, but rather an unreasonable interference with a right common to the general public. The court’s opinion correctly noted that in Ohio, the Ohio Product Liability Act provides the exclusive remedy for harms caused by products.

Despite the occasional good news, the misuse of public nuisance laws by contingency-fee attorneys partnered with state and local governments continues to create problems for our court system and diminish investment, innovation and job creation in our economy.

Accordingly, more states and municipalities should follow Ohio’s example and ensure that any public nuisance theory litigation in which they participate falls within the reasonable and conceptual parameters of those laws, truly serves the public interest and avoids transparent schemes by cynical activists and plaintiff litigators to cash in on outsize fees.

• Timothy Lee is senior vice president of legal and public affairs at the Center for Individual Freedom.