Tuesday, June 28, 2011
The Supreme Court’s 8-0 decision last week in American Electric Power v. Connecticut certainly has implications for environmental health. The Court ruled that the federal common law public nuisance claim that the Second Circuit would have allowed to proceed was displaced by the Clean Air Act. But AEP is more than just a climate change case. Similar nuisance claims have been brought against the tobacco industry, firearms manufacturers and distributors, lead paint and pigment manufacturers, and other industries that are alleged to substantially and unreasonably interfere with public health and welfare. It’s certainly possible that the Court’s reasoning in AEP could also apply to other public health threats. As Lyle Denniston wrote for SCOTUS Blog, to the extent that “targeted activities are covered by a broad federal regulatory law like the Clean Air Act, the new decision would appear to close them down.” In any case, the great majority of innovative public nuisance suits have been dismissed on a wide range of procedural and substantive grounds.
There’s a growing body of legal literature surrounding public nuisance. As the cases appear to be winding down, the literature is taking a turn from practical, advocacy-oriented pieces toward more theoretical examinations of how courts have handled these challenging cases. Tom Merrill recently put up a paper on SSRN asking Is Public Nuisance a Tort? He argues that “legislatures rather than courts are the proper institution to identify the circumstances in which public nuisance liability exists, as well as who has authority to institute a public nuisance action.” Much of the scholarship surrounding nuisance has similarly focused on procedural issues grounded in separation of powers.
I’m currently wrapping up a project that situates the doctrinal debate over the substantive scope of public nuisance within a broader debate over the legitimate scope of public health law. As Wendy Parmet and others have argued, public health provides a unique and valuable lens for examining a wide range of legal problems. But it provides a particularly appropriate theoretical framework for understanding public nuisance law. Public nuisance law and public health law share a common heritage in the police power of the state. It is widely agreed that the defining trait of a public nuisance is a substantial and unreasonable interference with a right held in common by the general public, including interference with public health, safety, welfare, morals and convenience. But the unique characteristics of public health have been misunderstood and misrepresented in the adjudication of public nuisance claims and in some of the academic commentary on nuisance. At the same time, public health law scholars have failed to fully appreciate the richness of the ties between nuisance and public health.
I argue that the current trend toward rejection of industrial public nuisance liability is part of a broader tension over the proper scope of public health law. In particular, the debate over the meaning of a “public right” in the context of public nuisance law and the debate over the meaning of the “public” in public health law are in many ways one and the same. In both disputes, the stakes are high. Designating a problem as “public” changes the rules of the game. If a state or municipality suing in parens patriae successfully pleads substantial and unreasonable interference with a public right, the door is opened to flexible doctrines of causation and fault that make liability more likely. If a concern is designated as a public health threat, legal doctrines that privilege state intervention over private interests come into play.
Both of these debates arise out of a mounting tension between the science and politics of public health. On one hand, evolving scientific understanding suggests that addressing social and environmental determinants of health is crucial to protecting the public’s health. On the other, there are deeply held political and philosophical beliefs about where the boundary between public and private responsibility for health legitimately lies. This tension will continue to play out in contexts ranging from sin taxes on sugared beverages to workplace wellness programs that incentivize employees to lower their body mass index. Situating public nuisance liability within public health jurisprudence sheds new light on the doctrinal controversy over nuisance. But at this point, the legal battle over nuisance seems to be nearly lost. The project’s more significant contribution may be its suggestion that the controversy over public nuisance is indicative of what the future holds for public health law.