If you can think of an example of everyday people holding huge corporations accountable for harming the public, it was probably made possible in large part by a single legal theory: public nuisance.
Public nuisance was a primary basis for the litigation against Big Tobacco in the 1990s, and was the foundation of the opioid cases over the past decade. It’s played a prominent role in lawsuits on lead paint, predatory lending, water pollution, and “forever chemicals” like PFAS. It was the most important hook in recent successful cases against social media companies like Meta for designing their platforms to addict and endanger children. And most recently, it has been a key cause of action in litigation in several states against data centers for the air, water, and noise pollution they cause.
But not in Utah, Kansas, or Montana. Though it largely passed under the national radar, these states enacted laws this year or last that dismantle public nuisance as a cause of action—laws that, according to the Utah State Legislature’s own Office of Legislative Research and General Counsel, will make claims against data centers and other corporate wrongdoers “more difficult to pursue.” These states are not outliers, either—they’re forerunners. Their laws closely mirror a model bill published this summer by the American Legislative Exchange Council, the corporate oligarchy’s primary conduit for enacting right-wing laws at the state level. As I write this, ALEC’s Public Nuisance Reform Act is likely being distributed to Republican legislators in dozens of state houses around the country—and you can bet that Big Tech, eager to suppress a valuable tool of data center opponents, is lining up lobbyists to coax its passage.
Indeed, if this year was about trialing this extremist proposal, leaders on the ground believe that next year the real onslaught will begin. “Big corporations and the politicians they purchase use states like Utah as a testing ground for their regressive agenda,” Utah state Senator Nate Blouin, a Democrat, told me. “But make no mistake, these corporate immunity laws are coming for you wherever you are. I wouldn’t be surprised if they get introduced in nearly every state next year.”
These attacks on public nuisance law constitute just one offensive in a multi-front war the right has been waging against our ability to use the courts to hold the wealthy and powerful to account. On October 5, the Supreme Court will hear Suncor v. Boulder, in which Big Oil companies will make their case for immunity from legal repercussions for the fires, droughts, air pollution, extreme heat, and other harms they’ve caused to communities.
Boulder, the Colorado county and city, sued Suncor and Exxon Mobil in 2018 over the damage that climate change—and the companies’ lies about their role in fueling it—had done to its residents. After the state Supreme Court ruled that the case should go to trial, Suncor and Exxon Mobil—clearly terrified of what would happen if communities like Boulder were allowed to have their day in court—asked the high court to intervene, arguing in legal briefs that “state tort law is not the solution to global climate change.” As TNR’s Matt Ford wrote recently, the companies “effectively argue that because they and their products have caused damage everywhere, they cannot be held liable for it anywhere.”
In case the Supreme Court doesn’t give Big Oil a get-out-of-jail-free card, it’s pursuing other means. In addition to its public nuisance model bill, ALEC recently published the Energy Producers and Consumers Protection Act, which immunizes all corporations—the fossil fuel industry, certainly, but also all other industries—from liability for any misconduct that is even marginally related to climate change, including “negligence, gross negligence, recklessness, strict liability, products liability, failure to warn, fraud, fraudulent concealment, misrepresentation, unjust enrichment,” as well as all related “criminal charges, indictments, or prosecutions.” In other words, under this legislation, fraud is legal—if you’re a powerful corporation. Meanwhile, Texas Senator Ted Cruz has introduced similar legislation at the federal level.
This right-wing blitzkrieg to shield big business from liability for its misconduct extends far beyond the issue of climate change. On a recent Federalist Society panel about climate immunity for corporations, O.H. Skinner, the executive director of Alliance for Consumers—one of numerous front groups spun up by conservative legal activist Leonard Leo—explained that these efforts need to cover not just fossil fuel companies but every major industry, from Big Ag to Big Tech: “A lot of people in this space only talk about climate. And it frustrates me … I’m the kind of person that, because I care about all these products, I start thinking, well [Big Oil immunity] doesn’t do anything about pork, and it doesn’t do anything about AI regulation.” Earlier this year, the Supreme Court also issued a ruling protecting Monsanto and other pesticide producers from thousands of lawsuits by families and farmworkers devastated by the cancer-causing effects of glyphosate products like Roundup.
This effort really does represent an attempt to fundamentally restructure our corporate governance model in the U.S., which has always relied on robust private litigation. All the way back in 1803, Chief Justice John Marshall, in his famous Marbury v. Madison decision, wrote that the “very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” While most developed countries overwhelmingly rely on public enforcement of laws, private enforcement—not just to compensate injured parties, but to affirmatively deter corporate malfeasance—has long played a key role in America, where regulatory state capacity has traditionally been much weaker than in places like Europe. This dynamic has become even more pronounced in recent years, as far-right billionaires have succeeded in dismantling significant portions of the administrative state and stacking federal regulatory offices with shills for the industries they’re supposed to be regulating. In this context, public nuisance litigation and other lawsuits that rely on state law are communities’ last—and sometimes only—line of defense against the unchecked avarice of powerful corporations that have been fully unleashed by the Trump administration.
So it’s no wonder that the oligarchy has set its sights on dismantling the basic architecture of our civil legal system. This isn’t an entirely new effort: The corporate right has been waging a version of this war, whitewashed as “tort reform,” for decades. But to outright immunize corporate wrongdoing across the board—from Big Oil’s climate crimes to Big Tech’s data center disasters—would be a whole new level of elite impunity. The oligarchs are coming for every last tool the American people have ever used to restrain corporate abuse, deception, and overreach. And the fight to save these rights will be happening right in your community, no matter where in America you live.
