As Florida begins to implement its new environmental plan, it is crucial that its city and county government leaders resist the temptation to short-circuit the policy process by turning to the courts.
Policy-making and regulating is an extremely complex process and the people’s representatives and experts need the opportunity to implement the plan through well-honed processes. Affected industries innovate to adapt to new policies, making their offerings safer and cleaner and mitigating external costs in accordance with set policy. But the recent trend of local governments bringing public nuisance lawsuits threatens to upset that balance, to the detriment of all.
As a former U.S. senator and the former Attorney General for Alabama, I have seen first-hand the importance of the legislative and regulatory processes. And in leading the Gulf Coast states in the historic Deepwater Horizon oil spill litigation, I understand the importance of protecting our precious natural resources and collecting damages for environmental and economic effects from a disaster.
But recently, a number of cities and states have attempted to use the courts to seek major damages from energy companies for alleged future climate change effects, saying their products and practices are a “public nuisance.”
So far, local governments in Florida have resisted the temptation to join this trend. Fort Lauderdale’s city leaders, for instance, recently announced that they “have no intention” of bringing such a lawsuit, despite reportedly having been encouraged to do so by an environmental group. But Fort Lauderdale’s decision leaves the question: have other elected officials around the state heard the siren song of public nuisance litigation? If so, they should follow Fort Lauderdale’s lead and let the policy process play out.
Public nuisance is a common law tort brought on behalf of the public at large rather than an individual who has been specifically harmed. It dates from a time when law and regulation were the exception. The modern world has millions of pages of state and federal laws on the books covering pretty much any imaginable conduct, regulating almost every aspect of the economy—like Florida is doing now to safeguard the environment.
Today, even as they comply with the applicable law and regulations, businesses are increasingly targeted with abusive public nuisance lawsuits. Suits similar to the ones reportedly pitched to Florida localities on climate change have been attempted by other states and local governments.
Climate change suits in California and New York have been dismissed, with federal judges expressing severe skepticism that using the courts in this way is appropriate to address complex and amorphous policy issues such as climate change.
Municipalities suing under a public nuisance theory undermines the ability of state and federal governments to provide the governed with settled law. It is deeply destabilizing to economic activity in various industries, which spend millions ensuring their products comply with state and federal regulations, only to still risk being sued.
Moreover, it essentially puts courts in the role of second-guessing settled policy or being asked to make new policy, which courts are not well equipped or constitutionally empowered to do, as Justice Ruth Bader Ginsberg has noted.
Filing public nuisance suits in the name of a bigger societal issue is really a cover for trying to force a policy outcome. Don’t buy it. There’s a way to affect public policy change, but abusing the legal system using public nuisance suits isn’t the way to do it.
Luther Strange is a former U.S. Senator from Alabama and served as the state’s attorney general from 2011 to 2017. He is a senior adviser for Patomak Global Partners and provides legal counsel through Luther Strange & Associates, LLC.
“The Invading Sea” is a collaboration of four South Florida media organizations — the South Florida Sun Sentinel, Miami Herald, Palm Beach Post and WLRN Public Media.