Public Nuisance Reform Act

Summary

Public nuisance has historically been limited to involving a public right, which is distinct from a private right, such as use of land or water, held by large numbers of people. In addition, public nuisance must be linked to real property. Historical basis for public nuisance was defendants’ wrongful or abusive use of land or obstruction of public highways and waterways. This link ensured defendants control the nuisance and have capacity to abate it. Plaintiffs are limited to government entities and individuals who have suffered a “special injury” distinct from any harm to the general public. Public nuisance requires an unlawful—not just unreasonable—condition that interferes with a public right; an unlawful condition cannot arise from lawful conduct, especially conduct expressly authorized by or encouraged by the government. Historically, control of the nuisance has been required and the defendant must have proximately caused the harm with remedies limited to injunction or abatement. Only individuals who have sustained a “special injury” can sue for compensatory damages and a government plaintiff cannot recover damages for costs of public services.

Public Nuisance Reform Act

AN ACT to ensure that the tort of public nuisance may be pursued in a manner consistent with its historical scope.

Section 1. Purpose. The object of this statute is to ensure that the tort of “public nuisance” is defined clearly, and in a manner consistent with its traditional scope, for purposes of its use as a cause of action. This statute abrogates the common law of public nuisance and supersedes any other statutory provisions to the extent they conflict with this statute, and provides the only available remedy for a public nuisance.

Section 2. Definitions. In this Act and amendments thereto:

  • “Established public right” means a right, commonly held by all members of the public, to the use of public land, air, or water.
  • “Government attorney” means an attorney regularly employed on a salaried basis by the government or its political subdivision. This excludes attorneys hired on a contingency fee or hourly basis and attorneys hired on a short-term or temporary basis, including: legal fellows, special prosecutors, and other similar provisional positions.
  • “Government entity” means [ ].
  • “Person” means [ ].
  • “Political subdivision” means [ ].
  • “Public nuisance” means an unlawful condition that violates an established public right.
  • “Special injury” means an injury that is different in kind, not just in degree, from an injury suffered by the public at large.
  • “Unlawful condition” means an ongoing circumstance or effect of an instrumentality that is expressly prohibited.

Section 3. Liability. A person may be held liable for a public nuisance if—and only if—the person causes an unlawful condition and controls that unlawful condition at the time it violates an established public right.

Section 4. Limitations on Liability.

  • Conditions arising from the following conduct shall not be considered unlawful conditions for purposes of a public nuisance action:
    1. Activities expressly authorized or encouraged by a municipal, state, or federal statute, ordinance, or regulatory agency; and
    2. Lawful manufacturing, distributing, selling, advertising, or promoting of a lawful product.
  • Subsection (a) of this section is not exhaustive. It shall not be presumed that a person may be held liable for a public nuisance arising from conduct or conditions not listed in subsection (a).
  • The aggregation of multiple individual injuries or private nuisances shall not constitute violations of an established public right for purposes of a public nuisance action.

Section 5. Enforcement.

  • Except as set forth in subsection (b) of this section, only the government or one of its political subdivisions may bring a public nuisance action, and may do so only by a government attorney of the relevant jurisdiction.
    1. Absent a clear and convincing showing otherwise, it shall be presumed that only a single government entity within this government has standing to file or maintain a public nuisance action relating to the real property or waterway, or ancillary space related thereto, to which the public nuisance relates.
    2. To bring a public nuisance action, the government or its political subdivision must have substantial ownership interest in or authority over the real property or waterway, or ancillary space related thereto, to which the public nuisance relates.
    3. Financial expenditure by the government or a political subdivision related to the remediation, abatement, or injunction of an unlawful condition shall not constitute an injury sufficient to confer standing to file or maintain a public nuisance action.
  • A private citizen may maintain an action in his or her own individual capacity to enjoin a public nuisance only if he or she can show a special injury by clear and convincing evidence.
    1. As a matter of law, use of or damage to public land, air, or water with only personal, spiritual, cultural, or emotional significance to the individual is not a special injury for purposes of a public nuisance claim.
    2. An individual may not seek relief for both a public nuisance under the special injury exception set forth in this section and for a private nuisance for a harm related to the same unlawful condition.

Section 6. Available Remedies.

  • Remedies in a public nuisance action shall be limited to:
    1. Injunctive relief sufficient to prevent the unlawful condition from violating an established public right; and
    2. Monetary and non-monetary resources necessary to abate the public nuisance, if quantifiable and based on relevant and reliable cost factors, which shall not include:
      • speculative estimates of current needs;
      • the costs of future remediation;
      • the costs of investigating and identifying the existence of an unlawful condition;
      • the costs of public services provided as a result of the public nuisance; or
      • damages of any kind, except for compensatory damages for a special injury established in accordance with this act.
  • For remedies contemplated in subsection (a)(B) of this section, the necessity of monetary resources to abate the public nuisance must be established by the plaintiff by clear and convincing evidence.

Section 7. Severability. If any provision of this Act, or the application of such a provision to any person or circumstance, is held to be unlawful or unconstitutional, the remaining provisions of this Act, and the application of such provisions to any person or circumstance, shall not be affected thereby.

Section 8. Effective Date.  When this Act becomes effective it applies to claims arising on or after that date.