IT’S OLD NEWS that public nuisance theories increasingly are pleaded in an attempt to impose liability on product sellers when more traditional products liability theories would not work. Many-but certainly not all-courts confronted with such attempts have refused the invitation to extend public nuisance theory beyond its historic property-based origins and into the realm of products liability.
Two recent federal district court decisions have wrestled with an even more novel use of the public nuisance theory: the attempt to impose on product sellers and raw material and energy suppliers costs allegedly attributable to global warming. In both instances, the courts have concluded that these suits ask the judiciary to do something it cannot do-namely, exercise legislative and executive power to establish environmental policy through common law judgments.
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