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Cars, Public Nuisances, and Global Warming: Bill Lockyer’s Latest Abuse of Power

Hoping to emulate NY attorney general's Eliot Spitzer's rise to political prominence, California attorney general Bill Lockyer has been busy sticking his nose into a host of places it doesn't belong. For example, announcing that he has evidence to indict people in connection with the spying "scandal" at HP. Now he's filed a "lawsuit against leading U.S. and Japanese auto manufacturers, alleging their vehicles’ emissions have contributed significantly to global warming, harmed the resources, infrastructure and environmental health of California, and cost the state millions of dollars to address current and future effects." The premise of the suit is that the cars are a public nuisance; i.e., "an unreasonable interference with a public right, or an action that interferes with or causes harm to life, health or property."

This follows an earlier suit by Lockyer against power companies on much the same theory. The basic problem is that Lockyer is trying to use the courts to decide what is really a political question. (The US Chamber of Commerce filed a great brief in the power company case explaining why the courts are not an appropriate forum for this sort of legislation by adjudication; it's recommended reading.)

The court before whom Lockyer's suit has been filed should remember that Spitzer advanced a similar theory in a lawsuit against the gun industry. As the New York court explained in Spitzer v. Sturm, Ruger & Co., Inc., "Plaintiff State of New York, by its Attorney General, commenced this action with a complaint alleging that defendant corporations, which are handgun manufacturers, wholesalers and retailers, have created, contributed to, and maintained a public nuisance by their respective manufacturing, distributing and marketing practices." The court decisively rejected Spitzer's argument, holding that "the Legislative and Executive branches are better suited to address the societal problems concerning the already heavily regulated commercial activity at issue."

Plaintiff's attempt here to widen the range of common-law public nuisance claims in order to reach the legal handgun industry will not itself, if successful, engender a limitless number of public nuisance lawsuits by individuals against these particular defendants .... However, giving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.

All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born. A variety of such lawsuits would leave the starting gate to be welcomed into the legal arena to run their cumbersome course, their vast cost and tenuous reasoning notwithstanding. Indeed, such lawsuits employed to address a host of societal problems would be invited into the courthouse whether the problems they target are real or perceived; whether the problems are in some way caused by, or perhaps merely preceded by, the defendants' completely lawful business practices; regardless of the remoteness of their actual cause or of their foreseeability; and regardless of the existence, remoteness, nature and extent of any intervening causes between defendants' lawful commercial conduct and the alleged harm.

Summary dismissal would seem to be called for.