Imagine you run a business. You follow every rule, meet every regulation, and sell a perfectly legal product. Then one day, you get sued. Not because you broke the law, but because a creative plaintiff’s lawyer expanded a legal theory to blame you for a societal problem you didn’t cause. Sound like a stretch? That’s because it is. A centuries-old legal doctrine designed to address specific conditions that harm the community at large is now being contorted to sue companies that make legal products.

At its core, public nuisance law is about stopping unlawful acts that interfere with public rights, things like health and safety of the general public. Think of a factory illegally dumping chemicals into a river which affects residents in the area, or a building so run-down that debris is falling onto the public sidewalk.

But public nuisance has been stretched far beyond its original purpose by plaintiffs’ attorneys to chase after big-dollar damage awards. Some state legislatures have already caught on to this misuse of public nuisance claims against lawful businesses and have passed or are considering legislation to stop it. For example, Utah passed HB 591,  Tennessee is considering HB 2069 , and Missouri is considering HB 2777 which would directly address causes of action and damages to rein in these abuses. But much still needs to be done around the country. Here’s what you need to know.

Who Can Sue for Public Nuisance?

Generally, only public authorities, like state agencies, environmental protection agencies, or other government departments, can bring a public nuisance claim. They’re the ones primarily responsible for protecting our public rights.

But individuals can sometimes sue too if they’ve suffered a harm that’s different from what everyone else experienced. For example, fishermen who lose their livelihood because of an oil spill can sue because they’ve been uniquely harmed. But a hotel owner whose business slowed down along with everyone else’s? Probably not.

What Does It Take to Prove Public Nuisance?

While the exact requirements vary by state, in order to make case for public nuisance, a plaintiff must generally meet several legal requirements:

1. Unreasonable Interference: The interference must be substantial and unreasonable, affecting public rights such as health, safety, or comfort. A minor inconvenience won’t cut it. The harm has to be real and significant.
2. Right Common to the General Public: The interference must affect a right shared by the public, like the use of public parks, highways, or waterways. If it only affects one person, it’s probably a private nuisance, not a public one.
3. Causation: The defendant’s actions must actually be what caused the harm.
4. Intent or Negligence: Public nuisance cases usually involve claims that defendants acted with intentional misconduct, but the law doesn’t always require that. Sometimes, a defendant can be held liable for negligence, which means the bar for liability is lower and the plaintiff only needs to show the defendant was careless in how they acted — not that they deliberately caused harm.
5. Control Over the Instrumentality: Some jurisdictions/courts require that the defendant had control over whatever caused the nuisance at the time the harm occurred. If the source of the harm left the defendant’s hands years ago, this element gets harder to prove.

Where Has Public Nuisance Law Been Applied?

Public nuisance law has deep roots, and some of its historical uses might surprise you.

• Health and safety: Chemical dumps releasing toxic fumes or crumbling buildings violating local codes.
• Historical moral regulations: Illegal gambling houses, unlicensed liquor establishments, or houses of prostitution, though these applications largely reflect an earlier era of the law.
• Environmental conflicts: Blocking public waterways, emitting harmful smoke, or creating dangerous conditions on public land.

Where Courts Have Drawn the Line

The results in these cases have been a mixed bag. Some courts have rightly pushed back when public nuisance law has been used against lawful activities, rejecting or limiting claims against lead paint companies, pharmaceutical companies for opioids, and fossil fuel producers. Others, however, have allowed some of these types of cases to proceed, opening the door to expansive litigation against businesses operating within the bounds of the law. This inconsistency only reinforces the point that these are not issues for the courts to resolve. They should be left to the policy-making branches of government. For a more detailed analysis of the continued threat posed by public nuisance litigation, see ILR’s Taming the Litigation Monster.

When public nuisance law is stretched to cover the sale of legal products or the operations of lawful businesses, it stops being a public safety tool and starts becoming an end-run around the democratic process. Whether a product should be on the market, how an industry should be regulated, and who should bear the cost of societal challenges are policy decisions that should be made by elected officials accountable to voters, not by courts in one-off lawsuits driven by plaintiffs’ lawyers. The courtroom should not serve as a backdoor regulatory agency.

Why Should You Care?

The question isn’t about the traditional use of public nuisance, it’s about broad application beyond the intended confines of the law. Public nuisance law serves an important purpose: protecting communities from specific types of threats to health and safety. If you believe in fair courts and a legal system that plays by the rules — public nuisance law should not be used as a blank check for unbounded litigation.  Because when it’s contorted and weaponized against lawful businesses and legal products, it undermines the legislative process, opens the door to potentially unlimited liability and that ultimately hurts everyone.

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