Suing America’s manufacturers, calling them a ‘public nuisance’ won’t improve the environment

By: Lindsey de la Torre

Across the country, the jobs of manufacturing workers are being threatened by trial attorneys and politicians targeting manufacturers with baseless lawsuits based on the legal theory of “public nuisance,” attempting to hold manufacturers responsible for harms that are often far outside of their control. While trial lawyers have pursued such lawsuits for years, there has been a dramatic increase over the past year, as lawyers team up with states, cities and counties to sue manufacturers over climate change.

This is why, one year ago, the National Association of Manufacturers (NAM) launched the Manufacturers’ Accountability Project (MAP) to help bring attention to the coordinated campaign behind these lawsuits and has made it clear that they will do nothing to improve the environment but could do serious damage to our legal system and our manufacturing industry.

California Manufacturers and Technology Association President Dorothy Rothrock has said the law firms are in it for the money. Indeed, the private attorneys representing the municipalities stand to earn hundreds of millions of dollars if they get a favorable ruling in court.

To date, 14 municipalities and one state have filed such litigation against dozens of energy manufacturers.

So far, each lawsuit that has been considered in federal court has been dismissed, with the judges finding several flaws in the municipalities’ arguments. In dismissing the cases brought by San Francisco and Oakland, U.S. District Judge William Alsup rightly told the plaintiffs that the court is not the proper branch of government to address the issue of climate change:

“The problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case,” Judge Alsup wrote in his opinion. “The Court will stay its hand in favor of solutions by the legislative and executive branches.”

U.S. District Judge John Keenan agreed with Judge Alsup’s logic, dismissing New York City’s climate lawsuit against five of the country’s largest energy companies in July. Another fatal flaw in New York City’s argument, Keenan found, was that the plaintiff was attempting to hold only manufacturers accountable for climate change when it is a problem to which everyone contributes. “Aren’t the plaintiffs using the product?” Judge Keenan asked the city’s outside counsel. “Does the city have clean hands?”

These dismissals are an encouraging sign that the outstanding lawsuits against manufacturers — filed by Rhode Island, Baltimore, Boulder and others — will face a similar fate in the coming months.

It is also encouraging that a growing number of public officials are speaking out against the litigation. For example, in Colorado, the state’s newly elected attorney general Phil Weiser recently criticized the climate lawsuit filed by three municipalities in his state, saying he is “uncomfortable with the litigation because the case for it hasn’t been made.”

Oklahoma Attorney General Mike Hunter has also commented on the lawsuits, saying, “In short, the courts are no place to determine national environmental policy. And public nuisance is not a theory the judges should employ in these kind of cases.”

Louisiana Solicitor General Liz Murrill said these suits “commandeer the rightful role of Congress to pass policy for the nation and are improper in terms of trying to legislate extraterritorial economic policy from the states in which they originate.”

We will continue to fight on behalf of manufacturing workers whose jobs are at stake. Manufacturing is too critical to the American economy to allow this threat to go unanswered.