88th LegislatureTexas Legislature Looks to Crack Down on ‘Policy-Creating’ Public Nuisance Lawsuits

The proposal would limit common law “public nuisance” suits, specifically prohibiting them from being brought against “a claim that a product endangers the health, safety, or welfare of the public at large or has caused injury to one or more members of the public [or] a claim based on the manufacturing, distributing, selling, labeling, or marketing of a product, regardless of whether the product is defective.”

Suits of this stripe against “products” have often been levied at oil and gas companies and gun manufacturers, with the plaintiffs alleging those operations harm the public at large.

“Part of our responsibility as legislators is to make sure that the separation of powers is balanced out and using common law public nuisance suits against oil and gas companies or gun manufacturers is a separation of powers violation,” Harris told The Texan.

“When you’re using the public nuisance common law to make policy, that’s a violation of the separation of powers. The Legislature has said you can seek remedy through public nuisance suits, not create policy.”

Public nuisance common law dates back to 15th century England, where it was originally used to provide for a path for preservation of public land use, such as prohibiting someone from blocking the use of a road.

But in recent decades, it’s taken on a new twist: environmentalists have used it to restrict fossil fuel operations on the grounds of waterway contamination, a feature of the “Waters of the United States” regulatory fight, and pro-gun control groups have used them to tamp down on manufacturers.

Harris’ bill essentially carves out “products” — like oil and guns — from the cause of action qualifications necessary to prove a public nuisance. It also states that an individual suing on public nuisance grounds over a product must prove “an injury caused to the individual by the nuisance that is different in kind, not just in degree, from an injury suffered by the public at large” and may only be granted compensatory damages, not injunctive relief.

Basically, an individual that meets the public nuisance injury qualifications may not secure an order from a court prohibiting that business’s operations, only financial compensation. Common, private, and statutory nuisances are not touched by the bill, according to Harris. He added that public nuisance lawsuits may still be brought against any illegal action, but lawful actions, such as producing oil and gas or manufacturing legal firearms, are protected under the bill.

The distinction Harris draws is between products and public resources — the former being sold to individuals and not “owned” or accessible by the public writ large.

In the last decade, a coordinated public nuisance effort by the Californian cities of San Francisco, Oakland, and San Mateo landed on the doorstep of Exxon and other oil producers.

In their announcements, the cities cited the “Big Tobacco” public nuisance lawsuits of old as the basis for their versions, alleging fossil fuels harm the climate and property primarily through “rising sea levels.”

Exxon sued those cities in Texas court — a unique strategy seldom tried — but had their appeal dismissed by the state supreme court.

Texas is currently involved in one of the largest public nuisance lawsuits in the country’s history: the over-prescription of opioids. The state and many localities within it stand to gain billions of dollars from various different companies that produced, marketed, and distributed opioids for pain relief. Some critics of the bill asserted that those opioid suits would be impossible to adjudicate under this new law.

Six different local government officials, including the Jones and McLennan County judges, registered opposition to the bill citing its effect on the way those localities joined the opioid litigation in which they took the public nuisance route.

McLennan County Judge Scott Feldman said, “This bill will remove standing from counties to protect the rights of its citizens by taking away the right of counties to make claims against entities that cause harm in our communities.”

A representative of the Texas Trial Lawyers Association testified against the bill, contending that it’d leave Texas governments and businesses subject to orders in other states because it doesn’t specify the actions it prohibits are Texas-specific — a contention Harris disputed while closing on the bill.

During the bill’s committee hearing, Harris agreed that it would eliminate the public nuisance aspect of those suits as they pertain to something lawful, such as the opioid cases, but that the same goal could be and has been accomplished through a deceptive or misleading trade practices angle, which the Office of the Attorney General has used before.

Harris further stated that his legislation would not inhibit localities from using public nuisance suits to go after something like a “drug house,” as those fall under statutory nuisance claims.

Due to its truncated and biennial nature, the Texas Legislature is often more belatedly reactive than its full-time peers in other states, with a year and a half of actions and events piling up during the interim.

Harris’ bill is one of numerous that would reassert the primacy of the Legislature — the first branch listed in the Texas Constitution — with the intention of prohibiting policy-by-lawsuit and legislating from the bench.