A member of the federal appeals court based in Denver moderated a discussion earlier this fall about public nuisance lawsuits, including one pending before the Colorado Supreme Court seeking to hold oil and gas producers accountable for climate change.

Judge Timothy M. Tymkovich of the U.S. Court of Appeals for the 10th Circuit appeared on Oct. 8 at the Judicial Symposium on Civil Justice Issues, hosted by the Antonin Scalia Law School at George Mason University. He opened the presentation by recalling his time as Colorado’s solicitor general in the 1990s, in the lead-up to the multibillion-dollar tobacco master settlement agreement.

“Colorado was approached, and Attorney General (Gale) Norton was very interested in that space. She thought it was a consumer protection issue and was persuaded it was the right way to go,” Tymkovich said. “I said, ‘Eh, I’m not sure that the courts ought to be in this space.’ I was dubious about the ability of the courts really to render justice in this area.”

However, he continued, “I lost that discussion and Colorado agreed to get into the tobacco cases.”

A public nuisance occurs when a private actor interferes with a right of the general public. Tymkovich said the legal concept of a public nuisance has been around for a long time, but “it’s really an innovation to see the kind of mass litigation that we see now, and it gets into more exotic areas of law.” 

Zandra Foley, a Texas-based civil defense attorney, said public nuisance matters began in the 1200s as a form of criminal prosecution to halt harmful activity. The following century, public nuisances morphed into a civil complaint.

“At that time, we’re talking about the pigsty’s stinking and causing a lot of problems. The lime pit is smoking and it’s causing people problems,” she said.

In the United Sates, Foley said the first formal definition of a public nuisance emphasized the role of the government in bringing enforcement actions. In the 1970s, however, the definition broadened and lawyers began bringing suits that did not need to allege individual harms to a single plaintiff.

An attempted class action suit on behalf of all Los Angeles County residents for smog pollution, however, failed after a state appellate court ruled the issues were “debated in the political arena and are being resolved by the action of those elected to serve in the legislative and executive branches.”

Foley said the fundamental problem, which repeats across attempted public nuisance lawsuits, is that the conduct creating the harm is not itself against the law. Lawsuits over tobacco sales, gun manufacturing and climate change have since cropped up alleging similar injuries.

“Counties and states having to expend more funds for police, for public health, for public awareness, whatnot,” she said. “There was a desire to file a lawsuit against somebody and try to get some money for this.”

Phil Goldberg, a Washington, D.C.-based attorney who focuses on liability issues, said that lawmakers or government agencies are typically responsible for managing the risks associated with the manufacture and use of certain products.

“But the public nuisance cases seem to subject the manufacturers to liability for engaging in that commerce,” he said.

Goldberg raised a case that is pending before the Colorado Supreme Court in which Boulder County and the city of Boulder are seeking to make ExxonMobil liable for local damages resulting from climate change. It is one of many identical attempts across the country to hold oil and gas producers accountable for the impacts of greenhouse gas emissions.

Goldberg said the premise of the lawsuits — making wrongdoers pay financially to remediate their damages — is an ill fit for the concept of a public nuisance.

“There’s no value to a public nuisance. It is inherently unlawful,” he said. “You’re polluting a river. You’re blocking a road. There’s not a risk-benefit analysis that goes into that. That’s, again, why public nuisance law often hasn’t been very successful.”

“Is the objective … a monetary result that would bankrupt these companies? Put them out of business?” asked Tymkovich. “In the climate change cases, is a state or federal judge going to (say), ‘What, are we going to regulate emissions?'”

Goldberg said money is the goal, generally going toward the cost of the alleged nuisance.

The symposium covered other issues related to the civil justice system. Tymkovich disclosed that the organizers reimbursed him for his attendance.