A recent report from the American Tort Reform Association (ATRA) outlines the rise in recent years of private plaintiff attorneys bringing lawsuits against businesses on behalf of local governments. Local litigation seeks to hold private businesses liable for broad issues including lead paint, contaminants such as PFAS and PCBs, opioids, and even the global issue of climate change. Plaintiffs are using vague “public nuisance” theory to support their claims.

For example, in the climate change cases, municipalities are using state and federal common laws of public nuisance to seek damages from fossil fuel companies. The localities argue fossil fuel companies should pay for infrastructure protecting against rising sea levels and temperatures because their carbon emissions contribute to global warming. Despite losses at the federal circuit court level, activist local governments are continuing to pursue climate change cases for political purposes, claiming they are drawing attention to the issue that Congress and the executive branch have “failed” to act upon.

In the opioid cases, plaintiff localities are accusing pharmaceutical companies of downplaying risks and illegally touting benefits of opioid products to medical professional prescribers, which plaintiffs claim led to the “public nuisance” of the opioid crisis. Over 1,000 opioid lawsuits across 40 states are ongoing. Many local lawsuits have been consolidated into federal court in Ohio, while others are being pursued in state courts. The local lawsuits are in addition to – and undermining – over 40 state attorneys general who are investigating and suing at the state level.

A recent decision in California state courts has further opened the door to broad public nuisance litigation. Plaintiff localities in the case argue the defendants’ promotion of then-legal lead paint created the current “public nuisance” of lead paint in homes. A California appeals court ordered the three defendants to pay a $409 million abatement fund to find and remediate residential lead paint. Although the defendants stopped promoting and selling lead paint once science began to show its harmful effects and the plaintiffs failed to show the defendants actually caused any real harm, the three defendant companies were held individually liable for the statewide issue that involved may additional actors, including homeowners, landlords, and even the state of California itself.

The ATRA report argues that not only do duplicative local lawsuits violate what in many states are constitutional powers given to the attorney general, they also cost local and state government more money in legal fees that could go to real policy solutions. ATRA suggests solutions including transparency laws for local governments retaining outside counsel and giving state attorneys general author to intervene in local lawsuits in order to curb costly and ineffective local litigation.