Plastic pollution is putting an old legal doctrine to a new test
Public nuisance lawsuits are testing whether companies can be held responsible for pollution after their products are sold.
Baltimore's streets, beaches, parks, and lawns are marred by plastic pollution, much of which bears the logos of Pepsi or Coca-Cola. However, a recent ruling by a Baltimore city circuit court judge determined that none of the companies are legally liable for this waste. The judge cited the doctrine of public nuisance, stating that companies "conducting lawful activities" should not be held accountable for the unlawful misuse of their products.
This perspective has been echoed in similar legal proceedings across the United States, raising the question of when a company's responsibility for its products ends and whether public nuisance laws can effectively make polluters pay. Public nuisance law, which dates back to 13th-century English common law, has traditionally been used to address shared public rights such as clean air.
In recent decades, plaintiffs have attempted to apply this concept to manufacturers whose products potentially endanger public health, safety, and access to a clean environment. However, these lawsuits have had mixed results, often succeeding through favorable settlements rather than court rulings. Judges have struggled to prove causation, or substantial responsibility of corporate defendants for violating public rights.
They are cautious about extending liability past the lawful sale of products, especially when those products are not used as intended. For a public nuisance lawsuit to succeed, three elements must be established: substantial interference with a public right, causation linking the defendant to that interference, and negligence, intent, or other tortious conduct in the defendant's activities.
Environmental groups and governments are trying to overcome the point-of-sale argument by emphasizing causation and conduct, arguing that plastics companies are responsible for the pollution and are aware of the harm their products cause to public rights. Whether this approach will prevail depends on various factors, including the jurisdiction and the demonstration of foreseeability and control over the products at the time the nuisance occurred.
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