By Karen Savage
A prominent group that lobbies for fossil fuel interests floated a draft of legislation at a recent meeting designed to make climate liability and other lawsuits based on public nuisance laws nearly impossible.
The draft Public Nuisance Reform Act was submitted to the American Legislative Exchange Council (ALEC) States and Nation Policy Summit, but was withdrawn before it could be finalized. Had the organization formally endorsed the proposal, it would have called for limiting corporations’ liability under state laws. It proposed that a corporation could only be held liable only if it caused “an unlawful condition and controls that unlawful condition at the time it violates an established public right.”
The draft policy would have prohibited claims based on actions regulated by local, state or federal agencies. It stated that municipalities could not file suit if the public nuisance stemmed from activity that was “expressly authorized or encouraged” by regulatory agencies and would have prohibited suits stemming from the “lawful manufacturing, distributing, selling, advertising, or promoting of a lawful product.” That would have meant activities like fossil fuel production and selling tobacco, because they are regulated by government agencies, would be immune from state laws protecting consumers from knowingly dangerous products.
The intent was to “ensure that the tort of public nuisance may be pursued in a manner consistent with its historical scope,” according to the now-withdrawn draft.
Doug Kysar, a deputy dean and professor at Yale Law School, said that notion is appalling.
“The draft bill is utterly disingenuous in its claim to be consistent with the history and purpose of the public nuisance cause of action,” Kysar said. “Public nuisance developed precisely in order to empower the sovereign to challenge harmful and unreasonable conduct in the absence of legislative or executive restrictions.”
ALEC, which has been called a “corporate bill mill,” writes and shares model bills, or policy, with state legislators, who are encouraged to copy and paste wording into bills they sponsor. Most, if not all, favor large corporations and attempt to limit efforts by local communities to curb corporate power. After the bills are introduced, ALEC representatives help state lawmakers with background research and strategize how to get the proposed legislation passed into state law.
The public is rarely made aware of the source of this kind of legislation.
William Meierling, ALEC’s chief marketing officer said the draft “was not considered or debated and won’t become ALEC model policy.”
The proposal, however, highlights that the fossil fuel industry is aiming to bolster its legal claim that because its activities were legal and supported by government, it cannot be held accountable for the dangers of its products to the climate. That would represent a major shift in current law.
“To limit the action instead to only conduct that is ‘unlawful’ is to turn it into a minor ancillary enforcement mechanism for statutes and regulations, rather than a source of government authority in its own right—so ALEC gets an ‘F’ for its historical analysis,” Kysar added.
Public nuisance laws allow public officials to file suit against corporations for interfering with public rights and harming their communities. Municipal officials from across the country have filed more than a dozen climate change-related lawsuits against fossil fuel companies since 2017 alleging the companies knew their products drove global warming and not only continued to sell them, but also worked to deceive the public about those dangers.
In other instances, local officials have successfully brought lawsuits alleging violations of public nuisance laws against tobacco companies, opioid manufacturers and lead paint manufacturers. Most involved claims that the corporations had created a public health crisis by misleading the public about the dangers posed by their products.
ALEC does not publish its membership list, however Chevron, Marathon, and Koch Industries—which have all been named in climate-related litigation—were ALEC members, as recently as last year. Several other defendants, including ConocoPhillips, Shell, British Petroleum and Exxon have parted ways with the group, however several public relations firms, trade associations, lobbying groups and others associated with the fossil fuel industry remain ALEC members.
Other members include conservative state legislators who have received contributions from fossil fuel companies, right-leaning philanthropies and wealthy donors who work alongside corporations to draft and share model legislation aimed at state lawmakers.
“The policy was withdrawn at the task force meeting because [it] was not appropriate for the time,” said Meierling, who did not reply to a question asking who submitted or authored the draft.
Materials from the Civil Justice Task Force meeting obtained by the Center for Media and Democracy, a non-profit watchdog group, indicate that the task force instead addressed ways to limit the ability of municipalities to bring public nuisance-based suits.
Elbert Lin, a partner with Hunton Andrews Kurth and former West Virginia solicitor general, presented an overview of public nuisance laws followed by suggestions on how to reduce suits based on those statutes. As solicitor general, Lin led a legal challenge to the Obama administration’s Clean Power Plan mounted by West Virginia and several other states.
Local municipalities have relied heavily on public nuisance laws because enforcing state consumer protection laws is generally reserved for state attorneys general. Reducing or eliminating the ability of local officials to bring public nuisance suits would reduce corporate liability exposure, according to Lin.
Several reforms Lin suggested in his presentation to the task force mirror those he outlined in Mitigating Municipal Litigation: Scope and Solutions, a report he co-authored last year for the U.S. Chamber’s Institute for Legal Reform (IRL), which advocates for legal reforms to limit liability risks for businesses.
Lin advocated for a two-pronged approach to limit future lawsuits. The first is to make it more difficult for municipalities to access the courts. Examples include forbidding them from hiring outside attorneys or requiring sign-off from state AGs or other state officials prior to filing.
The second prong is to limit the scope of public nuisance statutes by exempting certain actions and limiting potential violations. Lin didn’t include the draft model policy in his presentation, however, that appears to have been the intent of the proposal.
Public nuisance reform is needed to restore the authority of the legislative branch, according to Lin, who said the laws are overused. Reform advocates also say it is needed to maintain the balance of power between the executive, legislative and judicial branches of government.
Kysar isn’t buying those arguments.
“The [draft policy was] loaded with so many provisions that seek to neuter public nuisance actions from every conceivable angle that it could not have been written with a goal in mind of promoting a balanced vision or a clear social goal, other than the shameless private goal of insulating harmful industries and their shareholders from responsibility,” Kysar said, referring to the now-withdrawn model bill.
“This kind of overreach doesn’t even deserve to be called lobbying.”