Public nuisance lawsuits over plastics recycling lack legal foundation

Are plastics recycling cases the new mega tort fueled by distorted theories of public nuisance law? If attorneys general and municipal officials have their way, they could be.

The mad dash to file these cases against plastics manufacturers and their trade associations is beginning, so much so that the New York University School of Law has already set up a “Plastics Litigation Tracker.”

These cases are effectively asking judges to redefine public nuisance. The law defines a nuisance as the use of one’s own property so as to substantially and unreasonably interfere with another’s use and enjoyment of their land.  

A public nuisance then is a real property tort that involves liability for actions that unreasonably interfere with the public’s use of public property, most notably when someone blocks access to public highways or waterways or when someone pollutes public resources such as air or water.  

None of these traditional elements are present in the plastics cases or others like them. These aren’t cases about land use or about interference with public property. The new theory of public nuisance being advanced is that a plaintiff can sue if an individual or entity does some act that later is seen as contributing to a public problem. That’s not the same.

As with climate change, guns, lead paint, vaping, social media and other public nuisance-based cases that blazed this trail before plastics, these cases are twisting the law to try to turn the courts into policymakers seeking to redistribute wealth from seemingly unpopular industries and to serve progressive agendas that could never be passed through legislatures or survive the rigors of scientific review at expert agencies.

Among the latest cases in this soup, California Attorney General Rob Bonta, and in a related lawsuit environmentalists filed near the same time, targeted ExxonMobil and a few other plastics companies and their trade associations in a lawsuit alleging that the defendants engaged in a public nuisance by making resins for plastic bottles and for accepting the widespread belief that plastics recycling was possible. 

The state of California believes we have now learned that recycling plastics doesn’t work very well, at least not with the most common techniques. That means people have bought plastic bottles thinking they could be recycled, recycling processes are costly and programs are not managed very well through no fault of the defendants in these cases. Plastic bottles haven’t all been recycled for a variety of reasons, not the least of which is that users put them in the trash, and thus we have plastic waste pollution. 

California now claims that ExxonMobil and the others should be responsible for “slick” pro-recycling campaigns because we now know plastics recyclability isn’t so straightforward. 

Despite the government and environmental groups now suing having themselves been some of the biggest advocates for recycling, blasting the world with messages about its benefits, somehow none of that would have happened except for ExxonMobil allegedly orchestrating a disinformation campaign that fooled the world. The pollution that has resulted, it is claimed, is a public nuisance of ExxonMobil’s unattenuated doing.

An earlier-filed lawsuit in New York made similar claims against Pepsi/Frito Lay. In a glimmer of hope for the rule of law, the trial court in New York, in that case, issued a searing rebuke to the government’s theories when dismissing that lawsuit for failure to state a claim on Oct. 31.  

Courts across the nation faced with these new plastics recycling claims should take wise counsel from Judge Emilio Colaiacovo.

Public nuisance is regularly being claimed as an unlimited vessel to load a wish list of policy preferences through litigation that have not and likely could not be achieved through legislation or regulation. 

 As Colaiacovo concluded in the plastics recycling case he dismissed, “Absent the legislature passing a law or the executive branch issuing an order establishing such a theory of liability or imposing restrictions on what type and amount of plastic can be used, this lawsuit is simply policy idealism.” 

He went on that, “If permitted, no defendant would be safe from a race to penalize a party notwithstanding the lack of executive order or legislative law that properly establishes a basis upon which an entity may be subject to civil punishment.” 

Quoting from earlier New York precedent dismissing similar public nuisance adventurism in guns, Colaiacovo rightly pointed out in the Pepsi/Frito Lay opinion that there are no limits to creativity if public nuisance is accepted as a viable legal claim in these social ills and public policy cases.  

The opinion in the guns cases had observed that one only needs to “construct a scenario describing a known or perceived harm … that can somehow be said to relate back to the way a company or industry makes, markets and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born.” 

To accept the posited theory of public nuisance in these cases, the common law would need to be twisted upon itself to reject traditional limits on liability.  

First, public nuisance was historically a very limited doctrine. It rarely applied and courts were very cautious to allow its invocation but for cases where private parties were responsible for abating actions that blocked public roadways or polluted shared waters infringing upon common rights shared by the entire public. And, they were often brought as criminal actions.  

Public nuisance was never accepted as a remedy for every wrong. And any claim that the common law evolves to allow this kind of expansion would instead be a claim that the common law is allowed to mutate a cause of action into an entirely new shape-shifting species devoid of any real form.

Furthermore, these cases would have courts accept that wrongdoing is no longer necessary. According to the plaintiffs in these cases, lawful activity and lawful speech are punishable retroactively. 

People can be liable for things that were not wrong at the time they acted and thus they could not have adjusted their actions to be compliant with the law. That is the essence of arbitrary government in violation of fundamental tenets of fair notice embodied in due process and the rule of law. 

Causation and traceability are out the door too. These cases seek to hold a few companies liable for legal activities that purportedly contributed to some unidentifiable degree to the plastics pollution problem. 

Even if we accepted plaintiffs’ theories, there would be an endless number of plastics producers and end users who have seemingly likewise contributed. How do you prove causation or apportion liability to a selected few targeted in these lawsuits? 

When we have widely dispersed harms with countless contributors and with little ability to allocate responsibility or contribution amounts between them, we leave those questions to legislatures, not the common law. 

Consequently, courts should not be seduced by government entities, environmental groups or plaintiffs’ attorneys advancing these suits. The plastics suits are no different than the many modern public nuisance cases that ask judges to become policymakers, suspending traditional notions of due process and perverting the courts into forums for wealth redistribution rather than wrongdoing rectification.

Donald J. Kochan is a professor of Law and the executive director of the Law & Economics Center at the Antonin Scalia Law School at George Mason University.