Building a Fire Wall: Missouri and New Jersey Hold the Line Against Plaintiffs' Efforts to Expand the Law of Public Nuisance

Historically, most courts have been properly resistant to this misuse of the public nuisance doctrine. See generally, Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541 (2006). These courts have recognized that the purpose of the public nuisance doctrine is to abate conduct that gives rise to injury to public lands or waterways or to rights common to the public as a whole, not to compensate individuals or entities allegedly injured by exposures to an alleged injurious product.

However, three recent developments have provided fuel for this 'rising flame' of public nuisance and threaten to fan the flames even higher. First, although the litigation in fact never tested plaintiffs' expanded use of public nuisance theories, the $368 billion settlement of lawsuits brought by state attorneys general against the tobacco industry demonstrated the coercive power of such lawsuits and, equally importantly, generously funded similar attacks on other industries. Second, state attorneys general and, increasingly, municipalities have turned to public nuisance theories against private industry as a means to fund general treasuries and to sidestep the constitutional checks and balances of the legislative and regulatory power. Third, plaintiffs enjoyed preliminary success with their first major trial victory in Rhode Island, where a jury found that the presence of deteriorating lead paint in public buildings gave rise to a public nuisance for which former manufacturers of lead paint could be held liable. See Richard O. Faulk and John S. Gray, The Mouse That Roared?: Novel Public Nuisance Theory Runs Amok in Rhode Island, Washington Legal Foundation, Critical Legal Issues, Working Paper Series No. 146 (March 2007).