Global Warming and Public Nuisance III

A reader of my last two entries describing articles on nuisance suits and global warming has suggested that one of the articles does not sufficiently respect the dangers of global warming on the merits of existing scientific evidence.  On one basic level, the response to this suggestion is easy:  whatever one thinks about the dangers of global warming, the point of my entries was to note that the judicial branch is not the appropriate forum to address the issue, as the case law to date has held.  On another level, however, the suggestion is useful because it highlights one reason why these court cases nevertheless keep getting filed:  because people frustrated with the responses from the governmental branches that are appropriate and equipped to address broad policy issues, i.e. Congress and the Executive Branch, start looking elsewhere.  The more critical someone thinks a policy problem is, the more likely they are to resort to any avenue for help, including the courts.     Read More »

Global Warming and Public Nuisance II

My last blog entry summarized a recent law review article about climate change nuisance suits.  The article's point of view rejected litigation as the appropriate mechanism to address public policy concerns and to dispute policy decisions by the other branches of government.   Language from a professor's summary of his recent article on the same subject, favoring such suits, confirms that not only the effect, but the goal, of such suits is to challenge the policy decisions of the other branches.  Read More »

Global warming and public nuisance

The latest edition of Ecology Law Quarterly (ELQ) has a short but useful discussion of public nuisance global warming suits:  "Global Warming Tort Litigation:  The Real 'Public Nuisance'."

The article, written by two of the defense lawyers in the California nuisance suit against automakers (which the district court dismissed, and is now pending before the Ninth Circuit), summarizes the five nuisance cases filed to date, then discusses why the public nuisance litigation model doesn't fit.  Read More »

Certiorari granted in Shell Oil

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.).

  Read More »

NH Court rejects nuisance claim

On September 16, in New Hampshire v. Hess, the Merrimack County Superior Court in New Hampshire dismissed the State's public nuisance claim against various suppliers, refiners and manufacturers of MTBE for failure to state a claim.  (Order

Citing, among other precedent, the Rhode Island Supreme Court's rejection of a public nuisance claim against lead pigment manufacturers, Rhode Island v. Lead Industries Association, 951 A.2d 428, 450 (R.I. 2008), the New Hampshire Superior Court ruled that, to hold a defendant liable for public nuisance under New Hampshire law, the defendant (as the Rhode Supreme Court concluded under Rhode Island law) must have control over the alleged nuisance at the time of the damage.  See Hess at 13 ("[T]he Court is not persuaded by the State's argument that control is not an element in New Hampshire public nuisance law.... To seek to hold defendants liable on a public nuisance claim absent sufficient control of the product at issue would be to extend nuisance law beyond its limits as recognized in this jurisdiction.")

Wyeth, balancing and the common law

Federal preemption in the product liability field is a very hot issue in the law today.  The principles being reviewed by the courts in this area would cross over to eliminate other common law claims like nuisance.  But more broadly, the reasoning applied in these preemption cases also provides insights useful for state courts in determining whether to expand their common law when their legislatures have spoken in that subject area. 

Last term, the U.S. Supreme Court found federal preemption in the medical device field in Riegel v. Medtronics, Inc., 128 S.Ct. 999 (2008).  This term, the Court granted certiorari in drug labeling case making a similar preemption argument.  Wyeth v. Levine, Docket No. 06-1249.  The New York Times had an article on the upcoming Wyeth case yesterday, citing a professor for the proposition that federal preemption is the fiercest battle in the product liability field today, and The Wall Street Journal calls the case the "Mother of all preemption cases." 

Wyeth involves a Vermont failure-to-warn claim (with a $7.4 million jury verdict).  While the defendant used the FDA-approved language, the jury found the defendant should have said something more.  One point the petitioner's brief on merits (Seth Waxman, counsel of record) notes is the different perspective of an individual jury and an entity that must balance competing interests:  to allow an individual jury to override the FDA's language would "substitute the ex post judgment of lay jurors whose members consider injury through the lens of a single patient's injury, rather from the perspective of overall public health, with the countervailing benefits of the drug to the entire potential patient population in mind."  (p. 4)

A similar point was made by the Court in Reigel, when it noted that a "jury sees only the cost of a more dangerous design, and is in not concerned with its benefits..."  128 S.Ct. at 1008.   The Chief Justice in Vermont, dissenting from the decision upholding the verdict similarly noted that a jury's consideration of drug safety "through the lens of a single patient who has already been catastrophically injured" "is virtually guaranteed to provide different conclusions in different courts about what is ‘reasonably safe' than the balancing approach" taken by the FDA.

As the petitioner in Wyeth elaborates upon in its brief, a jury-by-jury approach inherently produces risk-adverse determinations.  (p. 28.)  The Wyeth brief goes on to note that agency balancing among competing objectives (p. 47) causes the clash between the case-by-case risk adverse, individual jury approach. 

Reigel and Wyeth discuss these principles in the context of comparing a federal statutory and regulatory framework against individual common law claims.  The same reasoning, however, seems applicable when a state supreme court is deciding whether to expand the common law, if the state legislature has addressed the topic in a way that involved balancing of competing interests.

When a legislature articulates the scope of a duty, it is implicitly, and sometimes very explicitly (in findings of fact, preambles and the like), setting a balance between competing interests, examined from a general public interest perspective.  While setting a duty at X point might reduce injuries for example, competing cost interests, with concomitant impacts on the economy, come into play.  When a legislature has engaged in balancing from the broader perspective of the public's general interest and embodied that balance in a statutory or regulatory framework, then an expansion of the common law could upset that balance, just as much as an individual jury verdict can clash with a regulatory labeling approval.  A clash with an individual jury verdict can arise when either a legislature or the delegated executive branch has spoken in a way reflecting a balancing of public policy considerations.  Consideration whether the common law should allow an individual jury decision to upset a general legislative balance involves the same type of analysis as these direct preemption cases.

Nuisance and regulation

As noted in Section 3.b of the module on Defining the Tort, compliance with regulation can indicate that conduct is by definition reasonable, and, therefore, not a nuisance.  This issue is often addressed in the context of a public nuisance claim.  See Restatement (2d) of Torts, § 821B, comment f.  The law on private nuisance can also provide some insights, however.

Most of us are familiar with the "coming to the nuisance" and "pig in a parlor" concepts - that just because you were there first, and operating a legal business, doesn't necessarily mean that your business is immune from being found a nuisance.  See generally Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).  That said, what has happened historically?  When people started moving into such a "nuisance" - toward the pigs - legislatures started enacting right-to-farm laws.  See, e.g., Buchanan v. Simplot Feeders Ltd., 952 P.2d 610, 614 (Wash. 1998) (prohibiting a nuisance claim because of state "Right-to-Farm" statute).

Beyond legislation explicitly declaring certain activities not to be nuisances, legislatures also issue specific licenses and permits for activity.  Logically, the more specific the legislative expression as to what is allowed, the less likely the use can be deemed unreasonable.  Some case law from Massachusetts illustrates.

Many decisions from Massachusetts stand for the proposition that a license or permit can preclude activity from being deemed a nuisance.  E.g. Hub Theatres, Inc. v. Massachusetts Port Authority, 370 Mass. 153, 155 (1976) ("The operation and extension or enlargement of Logan by the Authority, the very activity of which the plaintiffs complain, being expressly authorized by the Legislature, the plaintiffs' action predicated on a nuisance theory must fail."); Flannery v. State Mut. Life Assurance Co., 339 Mass. 699, 700 (1959) (permit would protect landowner from being charged with maintaining nuisance if its terms and conditions were complied with); Czapski v. Sun Oil Co., 303 Mass. 186, 186 (1939) ("Since it is conceded that the defendants were licensed by the proper public authorities to maintain such a [gas] station, the plaintiff cannot restrain as a nuisance the doing in a reasonable and careful manner of the very act licensed"); Strachan v. Beacon Oil Co., 251 Mass. 479, 487 (1925) ("if the licensee has complied in all respects with the terms, what he does thereunder cannot be considered a nuisance or be restrained, even if without such licenses the acts done would be a nuisance); Sawyer v. Davis, 136 Mass. 239, 241-242 (1884) ("And when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the Legislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law.")

As the Massachusetts SJC further explained in Marshall v. Holbrook, 276 Mass. 341, 346 (1931), while an allowance for an activity in a general zoning ordinance may not exclude the particular operation of that activity in a particular spot a nuisance, a specific statute or permit can so immunize an activity:

A person may be protected by statute or by license issued under an ordinance enacted with legislative sanction in doing an act or conducting a business which apart from such authorization would be a nuisance. In Commonwealth v. Parks, 155 Mass. 531, 532, 30 N.E. 174, the court said:  "It is settled that within constitutional limits not exactly determined the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property." In Levin v. Goodwin, 191 Mass. 341, 343, 77 N.E. 718, 114 Am. St. Rep. 616, the court said: "Nor can there be any doubt that a person carrying on a business may be licensed to make a noise, which but for the license would be a nuisance.")

In sum, whether regulation precludes a private nuisance claim may be a question of specificity.  The more explicit the legislature is as to what is allowed, and the more individualized the determination (e.g, through a permitting process), the more logical it is to conclude that the legislature intended that particular operation in that particular place, operated in compliance with its license, not to be deemed a nuisance about which neighbors can complain.

Given the broader nature of a public nuisance claim, not focusing on a specific individual property and property owners, the need for such locational specificity logically diminishes, perhaps explaining why general discussion of the interface between regulation and nuisance more often occurs in the public nuisance context.  But the fact that licensure is a defense in individual private nuisance claims reinforces a point common to both private and public claims:  within constitutional bounds, a legislative balance of social utility issues should be respected, precluding a nuisance findings that clashes with that balance.