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Reform Act was submitted to the American Legislative Exchange Council (ALEC) States and Nation Policy Summit, but was withdrawn before it could be finalized.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that the tort of public nuisance may be pursued in a manner consistent with its historical scope,” according to the now-withdrawn draft.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.