Explainer-California says Exxon’s recycling claims have created a “public nuisance.” What does this mean? By Reuters

By Brendan Pierson

(Reuters) – The California lawsuit accusing Exxon (NYSE: ) on Monday of fueling global pollution with plastic waste by misleading the public about recycling limits is the latest in a series of recent cases based on a legal theory centuries old, known as a public nuisance. . Here’s a look at how public complaints work, how such claims fared and what they could mean for California’s effort.

WHAT IS PUBLIC PUNISHMENT?

A public nuisance claim is one that can be brought against defendants based on conduct that interferes with a right that belongs to the public at large, rather than to an individual. Commonly cited examples include an obstacle blocking a public road, pollution in a public waterway, or a factory emitting a noxious gas.

Unlike personal injury cases, public nuisance cases, which are often brought by local authorities, do not seek damages to compensate plaintiffs for harm. Instead, they seek to compel the party responsible for the nuisance to pay to abate or remedy the condition. The amount of money the defendant must pay depends on the cost of the discount.

HOW DOES THE CALIFORNIA PROCESS BEGIN?

The California case is one of many recent lawsuits that attempt to apply the concept of public nuisance more broadly than it has historically been used. Instead of accusing Exxon of directly polluting public lands or water, the state says the company misled the public for decades into thinking plastic recycling was far more efficient than it is, encouraging a widespread “throwaway lifestyle” of single-use plastic products.

The state says that, in turn, has led to more widespread plastic pollution that can be traced directly to Exxon’s conduct. It is trying to force Exxon to pay the cost of pollution abatement, with an amount yet to be determined.

Exxon has denied the allegations, arguing that recycling works and that California itself has failed to correct problems in its recycling system.

California and others have previously used a similar theory to sue Exxon and other oil companies for covering up their own knowledge of fossil fuels and climate change. Many of them have been tied up for years in legal battles over which the courts have jurisdiction.

HOW HAVE OTHER RECENT PUBLIC TRIALS FAILED?

Many recent public lawsuits have not gone to trial, but some have ended in large settlements. In particular, manufacturers, distributors and pharmacies of opioid drugs have settled with state and local governments across the country for nearly $50 billion over claims they fueled an epidemic of addiction and overdose deaths.

However, a federal judge has dismissed public nuisance claims in an opioid case brought by a West Virginia city and county that went to trial. The case is currently on appeal.

Broad public nuisance claims have had some success in California. San Francisco won the public opioid case against Walgreens, which then agreed to settle for $230 million last year rather than appeal.

In 1997, the state’s highest court ruled that gang activity could be a public nuisance, and in 2017 it ruled that three companies created a public nuisance with lead paint used throughout the state and must pay to abate it.

But there are limits; a state court judge in June dismissed the school districts’ public nuisance claims, accusing the social media companies of encouraging addiction among their students.

Have any similar lawsuits been filed for plastic pollution?

Yes. Last year, New York launched a public lawsuit accusing PepsiCo (NASDAQ: ) of fueling plastic pollution with its single-use bottles, caps and packaging. In 2020, the US environmental group Earth Island Institute brought similar claims against Pepsi and others, including Coca-Cola (NYSE: ) and Nestle, which a judge earlier this year allowed to proceed. The lawsuits remain pending.

CAN CALIFORNIA LAWSUIT GO FORWARD IF COURT REJECTS PUBLIC NUISANCE THEORY?

Yes. In addition to the public complaint, California files claims under the state’s unfair business practices, false advertising, and environmental pollution laws. Even without a public nuisance claim, the lawsuit could bring significant damages if successful.