- - Wednesday, September 19, 2018


In late September, the U.S. Supreme Court will decide whether to review a California state appellate court ruling that would expand “public nuisance” doctrine and in the process engulf constitutional due process rights.

This branch of American common law has its roots in Renaissance England, when courts first allowed lawsuits against those who infringed on the well-being and rights of the public. In the United States, courts have traditionally permitted public nuisance claims in very narrow circumstances, such as where factories improperly dump waste, or large signs block public rights of way, or jet airplanes carelessly disturb neighborhoods near an airport.

The key is that public nuisance law has traditionally represented not a way to extract money damages, but a means to force the defendant to abate the nuisance, e.g., by cleaning up the waste, removing the signs or squelching the jets.

In recent years, however, public officials have undertaken sustained efforts to hold industries liable in public nuisance actions that have little connection to abatement, particularly with respect to the presence of lead paint in older homes. Until recently, these efforts have been rejected by courts unwilling to expand this area of the law. Yet now, 10 California cities and counties have — in the name of the People of California — successfully used public nuisance law to sue Sherwin-Williams and other industry defendants for the presence of lead in private homes, even though Sherwin-Williams ceased using lead decades before the science was clear and Congress banned lead paint in the late 1970s.

Critically, the California plaintiffs neither proved that any defendants manufactured the lead paint present in the houses and apartments in their communities, nor that the lead paint to be abated — which imposes no health risks when left undisturbed — is actually harming anyone.

Instead of requiring the traditional proof that defendants actually caused a public health crisis, the California court deemed the mere presence of lead paint in private homes to be a public nuisance. It then fixated on a single newspaper ad Sherwin-Williams ran in 1904 promoting outdoor paints that contained lead — at a time when lead paint was legal. The court also condemned Sherwin-Williams for its modest contributions from 1937 to 1941 to a trade association that promoted the use of lead. The other defendants were held jointly and severally liable for abating lead paint in the municipalities based on similarly slim promotional activities.

Yet even that (already questionable) theory of liability falls short, as the plaintiffs never proved that anyone relied on Sherwin-Williams‘ or other industry advertisements in deciding to use lead paint.

Nevertheless, the California courts retroactively applied contemporary science and a new conception of public nuisance law to impose damages liability for the lawful promotion of what was then a legal product. So used, public nuisance law represents nothing but the raw means of extracting wealth from a few supposedly deep-pocketed industry participants rather than well-targeted abatement of ongoing public harm by the responsible parties.

Such developments in public nuisance law distort the traditional purpose of civil lawsuits in the Anglo-American tradition. Instead of seeking to redress particular injuries caused by particular defendants, they seek to enact social change or massive wealth transfers through the courts by holding a few companies responsible for broad societal risks. In this way, officials use regulation-by-litigation to punish disfavored industries rather than pursue politically accountable legislative solutions.

Indiana and other states are sufficiently concerned about this alarming trajectory in the law that we have urged the Supreme Court to hear the Sherwin-Williams case. The Supreme Court now has a rare chance to rein in the California court and demarcate the constitutional boundaries of acceptable public nuisance lawsuits.

• Thomas M. Fisher is the solicitor general of Indiana and is counsel of record for the amicus curiae brief filed by Indiana, Louisiana, Texas, Utah and Wyoming in support of the cert petitions of the Sherwin-Williams Co. and other corporate defendants.

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