'Super tort' might represent failure of public policymaking, but is only tip of melting iceberg

First Circuit remands R.I. suit against Big Oil for public nuisance

Super Tort
(pxhere.com CC0)

A "super tort" sounds delicious.  Indeed, the term refers more often to food than to a theory of civil liability.  Maybe that's why the term animated headlines recently when the defense-friendly American Tort Reform Association (ATRA) used it in an amicus brief to the Oklahoma Supreme Court.

In October, ATRA filed its brief on the side of Johnson & Johnson's appeal of a $465m trial verdict of public nuisance liability in the opioid epidemic.  In the brief, ATRA warned that the award represented a "new species of public nuisance [that] will devour all of Oklahoma tort law and, with it, who knows how many businesses."  ATRA explained (my bold):

Since its inception, public nuisance has played a circumscribed role in Oklahoman—indeed, American—jurisprudence. It originated as a property-based tort used to remedy invasions of public lands or shared resources like highways and waterways. The trial court ignored that history, transforming public nuisance into a super tort that exposes Oklahoma businesses to unlimited liability for a broad array of public issues that are far removed from traditional public nuisances.

ATRA further argued its position in terms of the separation of powers, or, classically stated, Aristotelian justice:

The decision will also chill business activity throughout the state for fear that any product linked to a perceived social problem may lead to astronomical and disproportionate liability. It is not the judiciary's role to create a new tort to address social problems. That job belongs to the legislature, which can weigh competing policy factors and study the possible consequences of expanding traditional nuisance law.

Lead paint can
(Thester11 CC BY 3.0)

This isn't the first time ATRA has bemoaned the emergence of a public nuisance "super tort."  Among other tort-reform advocates, defense attorney Phil Goldberg used the term in 2008 and in 2018 to describe lead paint liability.  On the former occasion, echoed in an industry legal brief and in legal scholarship, the Supreme Court of Rhode Island had just rejected industry liability for lead paint on grounds that the defendants had no control over the product at the time it caused harm to children.  An ATRA leader warned of "super tort" in the climate change context as early as 2011 (States News Serv., Apr. 18, 2011 (quoting Tiger Joyce)). (Inapposite here, Patrick O'Callaghan, University College Cork, used the term "super tort" in the Irish Law Times in 2006 to describe potential excess in invasion-of-privacy liability.)

Nevertheless, public nuisance is the leading theory with which the State of Rhode Island now demands that oil companies pay for the past and future consequences of climate change.  Rhode Island alleges theories of product liability and public trust, in addition to public nuisance.  The state's suit is just one of many filed by state and local governments against Big Oil.  The Sabin Center for Climate Change Law, at Columbia Law School, tracks all U.S. litigation on climate change, including the Rhode Island suit. 

Just last week, the First Circuit remanded the Rhode Island suit to state court, rejecting industry claims of federal preemption.  Meanwhile, the case in state court is on hold while the U.S. Supreme Court ponders the outer constitutional limits of personal jurisdiction.  The Court's ruling in an otherwise unrelated case, which I wrote about in April and the Court heard this fall, has ramifications for Rhode Island's thin assertion of jurisdiction over transnational oil defendants.

Over the summer, I spoke about the expansive approach to public nuisance that resulted in the colossal Oklahoma award against Johnson & Johnson and that leads government claims against Big Oil over climate change.  Corporate objections voiced by ATRA, based in Aristotelian justice, are legitimate.  Ironically, as I discussed briefly in my lecture, I see this resort to the courts as an understandable expression of public frustration with corporate capture of our political branches of government.

The Rhode Island complaint images industry-sponsored public service announcements that sewed doubt about climate change and the role of fossil fuel.

Yet despite my skepticism, as a Rhode Islander and a taxpayer, I find the allegations in the state's 2018 complaint awfully persuasive.  The climate science is neatly summarized with color charts, and I'm a sucker for a color chart.  More dispassionately persuasive of moral responsibility on the part of industry, though, are excerpts of trade association advertising that downplayed, if not mocked, climate change science at a time when the industry must have known better.  The ads are eerily reminiscent of Big Tobacco efforts to downplay the risks of smoking for decades through the selectively scientific work of the Tobacco Institute.  That makes me wonder that product liability and consumer protection might be the states' and localities' best approach, not to mention a more doctrinally conservative strategy, and therefore judicially appealing approach, compared with a no-holds-barred theory of public nuisance—if we must rely on the courts alone, after all.

We might ought worry that "super tort" will devour our rational framework of civil liability.  But rather than reject industry responsibility and liability outright, we should add "super tort" to our lately exploded catalog of reasons to examine how and why our political institutions have failed to protect the environment, public health, and human life.

The case in Rhode Island state court is Rhode Island v. Chevron Corp., No. PC-2018-4716 (Bristol County, R.I. Super. Ct. filed July 2, 2018).  The case in the First Circuit was Rhode Island v. Shell Oil Prod. Co., No. 19-1818 (1st Cir. Oct. 29, 2020).

Talk traces 'nuisance' from King Henry I to COVID-19

Yesterday I had the privilege to present in a lecture series (virtually) at Jagiellonian University (UJ) on the tort of nuisance in American common law.  I sketched out the historical background of nuisance relative to the recent lawsuit by the State of Missouri, against the People's Republic of China, alleging public nuisance, among other theories, and seeking to establish responsibility and liability for the coronavirus pandemic.  Here is a video (CC BY-NC-SA 4.0) of the presentation, also available from Facebook, where the lecture streamed live.  A narrative abstract is below the video.

The Tort of 'Nuisance' in American Common Law:

From Hedge Trimming to Coronavirus in 900 Years

Nuisance is one of the oldest civil actions in Anglo-American law, dating to the earliest written common law of the late middle ages.  Nuisance for centuries referred to an offense against property rights, like trespass, interfering with a neighbor’s enjoyment of land.  But a nuisance need not be physical, and colorful cases have addressed nuisance achieved by forces such as sound, light, and smell.  In recent decades, nuisance has undergone a radical transformation and generated a new theory of civil liability that has become untethered from private property.  State and local officials have litigated a broad new theory of “public nuisance” to attack problems on which the federal government has been apathetic, if not willfully resistant to resolution, such as climate change and the opioid epidemic.  Just last month, the State of Missouri sued the People’s Republic of China, asserting that COVID-19 constitutes a public nuisance.  Emerging from understandable frustration, public nuisance nevertheless threatens to destabilize the fragile equilibrium of state and federal power that holds the United States together.

Here are some links to read more, as referenced in the presentation:

• Oral argument in Oakland v. BP (9th Cir. argued Feb. 5, 2020)
• Complaint in Missouri v. PRC (E.D. Mo. filed Apr. 21, 2020) (item 1)
• The English Game (Netflix 2020)

Here is a two-minute video (CC BY-NC-ND 4.0) of only my PowerPoint (no audio), if you want an idea about the course of the talk:

The four-part lecture series, "American Law in Difficult Times," comprises:

Paul Kurth: The American Low-Income Taxpayer: Legal Framework and Roles Law Students Play
May 12, 18:00
Event - Video

May 19, 18:00
Richard Peltz-Steele: “Nuisance” in American Common Law Tort: COVID-19 as a Public Nuisance?
Event - Video

May 26, 18:00
Susanna Fischer: Art Museums in Financial Crisis: Legal and Ethical Issues Related to Deaccessioning
Event - Video

June 2, 18:00
Cecily Baskir: American Criminal Justice Reform in the Time of COVID-19
Event - Video

Here is the lecture series invitation (Polish) from the American Law Students' Society (ALSS) at UJ, via Facebook:

Here is an "about" from ALSS and partners:

❖ ABOUT AMERICAN LAW IN DIFFICULT TIMES:

The American Law Program (Szkoła Prawa Amerykańskiego) run by the Columbus School of Law, The Catholic University of American [CUA], Washington D.C., and the Faculty of Law and Administration, Jagiellonian University, Kraków, as well as the American Law Students’ Society (Koło Naukowe Prawa Amerykańskiego) at the Jagiellonian University, Kraków, sincerely invite you to participate in a series of four one-hour online open lectures and discussion sessions delivered by professors from the American Law Program.

The lectures will be devoted to a variety of legal issues mainly relating to COVID-19 difficulties facing people and institutions, for which legal solutions may be useful.

The lectures will be available through Microsoft Teams as well as a live-stream via Facebook. Participants willing to participate through Microsoft Teams are kindly asked to provide the organizers with their e-mails no later than 6 hours before the commencement of the lecture, by e-mail to kn.prawaamerykanskiego@gmail.com.

Your participation in all four lectures will be certified by the American Law Students’ Society. Only those participants who provide the organisers with their name, surname and e-mail will be granted such certificates.

I am grateful to Jagoda Szpak and Agnieszka Zając of ALSS at UJ; Wojciech Bańczyk, Piotr Szwedo, Julianna Karaszkiewicz-Kobierzyńska, and Gaspar Kot at UJ; and Leah Wortham at CUA.  The lecture series is sponsored by, and I am further grateful to, the Koło Naukowe Prawa Amerykańskiego (ALSS), Szkoła Prawa Amerykańskiego (School of American Law), and the Ośrodek Koordynacyjny Szkół Praw Obcych (Coordination Center for Foreign Law Schools) at the Uniwersytet Jagielloński w Krakowie (UJ in Kraków), and to CUA.

Mass. Superior Court dismisses nuisance claim over airport skydiving concession on Cape Cod

Chatham Municipal Airport approach (CC BY 2.0 woodleywonderworks)

The Superior Court in Barnstable, Massachusetts, ruled in favor of the Town of Chatham against a citizen group earlier this month over the town's award of a skydiving concession at the Chatham Municipal Airport, the Cape Cod Times reported.  Arguing for summary judgment, the town relied on preemption by FAA regulations in asserting that it had no choice but to award the concession for a lawful activity.  The court agreed, according to the newspaper.  The trial court arguments were detailed by Tim Wood in a story for The Cape Cod Chronicle in May.  According to Wood's reporting, the citizens argued "that skydiving is not safe and is a nuisance, with multiple flights and screaming and yelling by tandem jumpers interfering with the 'quiet enjoyment' of their property. They point to a 2012 crash of a skydiving plane into Lovers Lake after it ran out of fuel and the severe injuries suffered by a tandem jumper as evidence of the safety concerns."

Chatham Municipal Airport on Cape Cod

Nuisance rule for trees rooted in history, reaffirmed by Mass. high court

In an opinion suitable for textbooks, the Massachusetts Supreme Judicial Court reaffirmed the rule of nuisance that neighbor may not sue neighbor over property damage from a healthy, overhanging tree.

A resident of Randolph, Massachusetts, complained that a neighbor's overhanging tree, a 100-foot sugar oak, had caused property damage by promoting algae on the complainant's roof.  The high court reiterated the historic rule that a property owner cannot be held liable in nuisance for damage caused by a neighbor's healthy tree, whether unruly roots that damage a foundation, or the natural shedding of leaves, branches, and sap.  A neighbor is entitled to trim back offending incursions, the court observed.

The court reaffirmed the historic rule despite the complainant's entreaty to consider alternative approaches from other states.  The rule emerged from a time of lower population density, when it would have been excessively burdensome for property owners to monitor all trees near property lines, the court explained.  "We invite challenge to antiquated laws," the court wrote.  Nevertheless, the court declined to "uproot precedent."  The historic rule continues to have relevance by minimizing litigation, the court reasoned, especially when the law is clear that a neighbor may cut back overhanging branches.

Affirming the lower court, the case is Shiel v. Rowell, No. SJC-12432 (Mass. July 16, 2018) (Cypher, J.).