Public Nuisance Law When Politics Fails

Abstract

Public nuisance lawsuits provide a vehicle for litigants to address public problems that legislatures and agencies have sidestepped. The courts have generally rejected such suits, directing litigants back to the very legislatures and agencies that allowed the problems to fester in the first place. This article proposes a normative framework for judges to evaluate public nuisance claims, balancing democratic legitimacy, technical competency, and the magnitude of the harm. This approach has several important implications, including that courts should stop avoiding reaching the merits of nuisance claims by relying on preemption and abstention doctrines, as they have done with recent claims involving Covid-19, interstate air pollution, and climate change. Another implication is that, contrary to leading commentators and some courts, public nuisance liability sometimes should encompass the manufacturing and distribution of products that result in health crises, such as the opioid addiction crisis. Public nuisance law is not a panacea, but it can play a constructive role in dealing with public harm when politics fails.