Left-wing activists have targeted local courts as an avenue for achieving their policy goals in areas where they cannot get elected.
According to a report from the Alliance for Consumers (AFC), trial lawyers will advance public nuisance claims in order to change public policy.
In a letter to Republican governors, AFC Executive Director O.H. Skinner says, “With victories through the legislative process becoming harder to achieve, the progressive left is increasingly looking to an alliance of activists, officials, and trial lawyers to weaponize the judicial system against conservatives and impose key policy priorities by way of public nuisance lawsuits.”
Skinner says the goal is to change policy determinations normally left to legislatures through the court system, all while trial lawyers make massive amounts of money that they then pump into the campaigns of left-wing politicians.
“Trial lawyers can work alongside local governments to try an end-run around state governments and push fundamental societal and economic changes in even the most conservative states,” Skinner continues.
Historically, public nuisance claims have been torts defined as an “unreasonable interference with a right common to the general public.” Examples of such lawsuits are the discharge of chemicals into a community or blocking a public road.
Some areas where public nuisance claims have been used to change public policy are climate change, tobacco, opioids, and firearms.
As the report makes clear, each new case decided in favor of the claim stands as a new affirmation of this “end-run” process about which the left can achieve its goals.
The advance into changing public policy started in the 1970s, where environmentalists sued on behalf of the public to address pollution — broadening the definition of the tort to include “public interest,” instead of the narrower “public right.”
It was once again expanded during the big tobacco cases of the 1990s, where lawsuits “provided an unprecedented windfall for trial lawyers and helped affirm the practice of using public nuisance claims to address larger societal issues,” according to the report.
“Just a few initial public nuisance cases in an area can quickly produce an onslaught of litigation,” the report says.
Public nuisance claims have been made during the opioid crisis, with over 3,000 related lawsuits being filed against manufacturers, distributors, and dispensers — many reaching settlement and providing billions in payouts.
At least in regard to opioid settlements, there are policies in place to steer the money toward addressing the crisis — something that did not happen in the big tobacco settlements.
However, such payouts are also used to line the pockets of left-wing trial lawyers who are notorious for diverting victim payouts away from victims, investing heavily in far-left candidates (in opposition to the Republican attorneys general who hire them), filing junk lawsuits, and elongating trials in order to rack up billable hours.
Even in areas where trial lawyers initially fail to make inroads to their policy preferences through the court, their persistence can find future success.
Chemicals, firearms, the coronavirus, automakers, and plastics are other modern targets of the legal scheme.
In an attempt to target fossil fuels and others in the energy industry, trial lawyers have tried to make the claim that energy production causes a public nuisance by contributing to climate change. While such claims have been largely shot down by courts, it only takes a couple rulings to start down a path where energy companies can be held responsible for the weather.
In 2018, the cities of Oakland, California, and New York, New York, saw defeat in such an attempt against major oil companies to force payment for their alleged contribution to flooding, among other things.
Those cases were thrown out by federal Judge William Alsup, who determined that “The court will stay its hand in favor of solutions by the legislative and executive branches.”
Going after firearms, however, has been a much more successful route to changing public policy from the courts.
Democrats have long targeted firearm manufacturers for blame in gun-related crimes.
President Joe Biden issued a 2021 “fact sheet” regarding gun crimes calling to “hold gun dealers and manufacturers accountable for their contributions to the flow of crime guns” through state attorneys general offices.
Similarly, Rep. Adam Schiff (D-CA) has argued on behalf of the public nuisance claims for guns, and the Ninth Circuit has already ruled there is a potential for valid nuisance claims for guns.
While that ruling motivated Congress to pass lawsuit protections for gun manufacturers, more recent attempts have been successful.
Last year, California Attorney General Rob Bonta (D) supported legislation creating a pathway to sue gun manufacturers. In 2021, former New York Gov. Andrew Cuomo (D) signed into law a bill that explicitly allowed public nuisance lawsuits to be filed against gun manufacturers. California Gov. Gavin Newsom (D) signed a similar law the next year.
“Activists have found a way to use the court system as a weapon to force companies and consumers to comply with a progressive worldview without legislative oversight or public scrutiny,” Skinner states.
He also points to environmental, social, and governance (ESG) initiatives being pushed in the same manner. According to Skinner, leadership at Weil, Gotsahl, and Manges — a massive international law firm that advises some of the largest companies in the world — said they “are seeing state and local governments, and even private plaintiffs turning to public nuisance litigation as a means of imposing their own views and their own preferences for how ESG (Environment, Social, and Governance) issues should be addressed.”
“Climate change, plastic pollution, opioids, and guns,” are “a few of the issues where companies are undertaking their own ESG efforts and where they may be running into public nuisance litigation,” according to the lawyers.
“One of the biggest consumer protection problems we face is trial lawyers and left-leaning activists using public nuisance as a vehicle for liberal control,” Skinner said in a statement. “We thought it was important to send this report to governors so they can be aware of these cases that may be happening in their state.”