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A successful public nuisance requires proof that a defendant's activity unreasonably interferes with the use or enjoyment of a public right and thereby causes the public-at-large substantial and widespread harm.
In September 2017, plaintiffs City of Oakland and the People of the State of California commenced the present “global warming” actions asserting claims for public nuisance against defendants Chevron Corporation, Exxon Mobil Corporation, BP p.l.c., Royal Dutch Shell plc, and ConocoPhillips – the five largest investor-owned producers of fossil fuels in the world, as measured by the greenhouse gas emissions allegedly generated from the use of the fossil fuels they have produced. Plaintiffs contended that the defendants' sale of fossil fuels led to their eventual combustion, which led to more carbon dioxide in the atmosphere, which led to more global warming and consequent ocean rise. Moreover, plaintiffs alleged that defendants had long known the threat fossil fuels pose to the global climate. Nonetheless, they continued to extract and produce them in massive amounts while engaging in widespread advertising and communications campaigns meant to promote the sale of fossil fuels. Defendants filed a motion to dismiss for failure to state a claim.
Should the court grant defendants’ motion to dismiss plaintiffs’ complaint?
The court noted that plaintiffs’ sole claim for relief was for public nuisance, a claim governed by federal common law. The specific nuisance was global-warming induced sea level rise. According to the court, the scope of plaintiffs’ theory was breathtaking, as it would reach the sale of fossil fuels anywhere in the world, including all past and otherwise lawful sales, where the seller knew that the combustion of fossil fuels contributed to the phenomenon of global warming. While the present actions were brought against the five largest investor-owned producers of fossil fuels in the world, anyone who supplied fossil fuels with knowledge of the problem would be liable. The court further held that in order to be held liable for a public nuisance, a defendant's interference with a public right can either be intentional, or unintentional and otherwise actionable under principles controlling liability for negligence, recklessness, or abnormally dangerous activities. Where, as alleged here, the interference was intentional, it must also be unreasonable. The court noted that the challenged conduct was, as far as the complaints allege, lawful in every nation. Moreover, the court held that plaintiffs' claims require a balancing of policy concerns — including the harmful effects of greenhouse gas emissions, the industrialized society's dependence on fossil fuels, and national security. Accordingly, the court dismissed plaintiffs’ claims.