Retroactive Liability
Across the country, state legislatures are advancing a wave of liability bills that would impose massive retroactive penalties on the energy industry, the cost of which will ultimately be borne by American families, consumers and businesses. This kind of punitive legislation comes in three general categories: cost recovery “superfund-esque” bills, by which state governments seek to extract retroactive penalties from energy companies to pay for climate adaption projects, bills authorizing private lawsuits against fossil fuel companies for alleged climate-related injuries; and study bills, which seek to quantify how much energy companies have “contributed” to climate change and “related harms.” While framed as climate accountability measures, they share a common defect—they impute responsibility for climate change to companies for past and present lawful conduct.
Public Nuisance
At its core, public nuisance law is about stopping unlawful acts that interfere with public rights, things like health and safety of the general public. Think of a factory illegally dumping chemicals into a river which affects residents in the area, or a building so run-down that debris is falling onto the public sidewalk.
But public nuisance has been stretched far beyond its original purpose by plaintiffs’ attorneys to chase after big-dollar damage awards. Some state legislatures have already caught on to this misuse of public nuisance claims against lawful businesses and have passed or are considering legislation to stop it, but much still needs to be done around the country.
Municipality Litigation
Mass municipality litigation — coordinated lawsuits brought by cities, counties, school districts, and other local governments against corporate defendants — has exploded over the past decade. What began as an occasional tactic has become a formalized, multi-pronged litigation strategy that enriches plaintiffs’ attorneys, distorts the civil justice system, and often fails to deliver meaningful relief to the communities it claims to help.
What’s at stake goes beyond any single lawsuit. When private attorneys can recruit municipal governments as clients, dictate litigation strategy, and pocket hundreds of millions in fees, largely outside public view, democratic accountability is at risk. The good news is that the tools to fix this already exist. Attorney general oversight, contingency fee transparency, public nuisance reform, and TPLF disclosure requirements can all meaningfully curb the playbook’s worst abuses.
