Maui’s Public Nuisance Climate Lawsuit

by Michael I. Krauss, Forbes, June 4, 2022

Over 1,300 climate lawsuits have been filed in the U.S.

None has yet succeeded.

That fact in and of itself should give pause. In countries where plaintiffs who lose lawsuits must pay the defendant’s legal fees, filing groundless lawsuits can be an expensive proposition. But in the U.S., the “American rule” prohibits victorious defendants from recouping the costs of their lawyers’ time from plaintiffs. Combine the “American rule” with the ubiquity of plaintiffs’ contingent fees and you get cities and counties with “nothing to lose” in filing public nuisance suits against corporate defendants who are active (and paying taxes) in their jurisdictions.

Blocking a road (and stopping traffic) can constitute a public nuisance. Flooding a town (through a failed dam) can be a public nuisance. Spreading poisonous gas over a city and forcing the evacuation of its residents can be a public nuisance. But that is not the ground for Maui’s suit against Sunoco (reference below) and other large corporations. No, Maui’s suit complains that defendants “[a]ffirmatively and knowingly promot[ed] the sale and use of fossil fuel products which Defendants knew to be hazardous and knew would cause or exacerbate global warming and related consequences, including, but not limited to, sea level 100 rise, drought, extreme precipitation events, extreme heat events, and ocean acidification.” Plaintiff county also complains about “disinformation,” , wherein the defendants circulated “information intended to mislead customers, consumers, and regulators regarding the known and foreseeable risk of climate change and its consequences, which follow from the normal, intended use of Defendants’ fossil fuel products.”

Defendants, of course, produce the fossil fuels which enable Maui residents to actually live in Maui, to circulate, to shop, to cool their homes, etc. Those same fossil fuels enable tourists to fly to Maui and actually sustain its economy. Nowhere is it alleged that the defendants illegally sold too-toxic fuels or spilled said fuels over the island. Rather, the claim is that global warming is enhanced by fossil fuels.

Obesity (which causes public funds to be spent by health departments) is enhanced by consumption of fatty processed foods, and by lack of exercise. On analogous grounds, McDonalds and TV show producers are creating a public nuisance when “too much” of their product is consumed. Similarly, Ford, GM, Stellantis et al are committing a public nuisance by producing cars in numbers sufficient to create traffic jams on the public roads when “too many” drivers decide to use their vehicles at the same time. Disney World creates a public nuisance by attracting “too many” people to Orlando, thereby maximizing the carbon footprint over that city. And of course the United States government’s military bases “disinform” the public about the expected effect of “too much” military action on climate change.

If readers have figured out that these kinds of public nuisance suits are policy arguments disguised as lawsuits, efforts to tax or even ban products that legislators have allowed to be legally marketed and sold, and are even deemed essential by the population, then these readers are on the right track.

Under Plaintiff’s theory, most of Maui’s alleged injuries will occur, if ever, only decades in the future, and those injuries cannot be redressed given Hawaii tort law’s strict limits on remedies for future injuries. Nor could any allegedly cognizable injuries be fairly traceable to any specific misrepresentations or deception alleged in the Complaint. Indeed, the most recent alleged misstatements alleged in the Complaint were made in 2000—more than 20 years before the Complaint was filed. Hawaii has a strict two-year statute of limitations in tort cases.

The global outcry against global warming itself weakens the plaintiffs’ disinformation claims. As defendants point out, ““Under Plaintiff’s theory, because Plaintiff, and the general public, knew about the potential link between fossil fuels and climate change long before 2018, ... Plaintiff therefore cannot accuse Defendants of “hiding” a material fact about something that was so publicly discussed—indeed, something that was being discussed, and even acted upon, by the federal government, international scientific community, and Hawaiʻi lawmakers for decades.”

In April 2022, New York City lost a lawsuit in federal appeals court. The lawsuit had sought to hold five major oil companies liable for global warming. The court ruled that the risk of "stepping on the toes of the political branches" was the reason why he dismissed the suit. A motion to dismiss Maui’s case was filed on May 25. If Hawaii’s law of public nuisance is followed, that motion will be granted.

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Hawaii CIVIL NO. 2CCV-20-0000283 COUNTY OF MAUI, Plaintiff, v. SUNOCO LP et al.