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Is public nuisance the new environmental legal watchdog?

A company concerned about its exposure to environmental litigation may have to contend with a new legal theory: public nuisance.

Traditionally, a toxic tort class-action lawsuit may have been the legal theory claimed against an alleged environmental offender. However, several municipalities have successfully filed public nuisance cases for alleged environmental harms. They may have gotten the idea from the public nuisance cases filed against tobacco manufacturers.

In a public nuisance case, the claim is that a defendant has unreasonably interfered with the public’s health. Consequently, the burden of proof may not be the same as in a toxic tort case, where a specific showing of pollution or land-based interference may be required. Nor is the burden of proof the same as in a negligence case.

The relief requested in a public nuisance case often includes an injunction and the cost of ending the environmental harm. The alleged forms of pollution have varied, such as waterway contamination or lead paint. Causation was demonstrated using scientific methods of tracing pollutants back to the named defendants. 

The trend of public nuisance lawsuit filings should be taken very seriously by any company whose operations have an environmental impact. This type of lawsuit represents an alternative to enforcement actions brought by state or federal environmental agencies. Said another way, companies may still face liability even if environmental policy changes.

For any company that uses chemicals, it is essential to take a proactive approach to environmental risks. Our lawyers have experience in environmental due diligence.

Source: Bloomberg, “Is the Public Nuisance Universe Expanding?” Jan. 31, 2017

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