Earlier this week, New York State Attorney General Letitia James filed suit against PepsiCo. At the core of the case are allegations that PepsiCo.’s widespread use of single-use plastics has created or contributed to a public nuisance in the Buffalo River.
I don’t doubt that plastic-related conditions in the Buffalo River constitute a public nuisance. Without diving into the facts, it seems totally plausible. However, that doesn’t mean that PepsiCo. is necessarily liable for the nuisance. More importantly, even if PepsiCo. might be found liable for a public nuisance, that doesn’t mean that such litigation is the best way to solve the problem posed by single-use plastics.
I recognize that there are historical examples of the use of litigation to prod Congress and/or regulatory agencies to enact legislation or promulgate regulations to address pollution problems. What seems different today is that it does not seem at all likely that this litigation, or others like it, will succeed in prodding Congress into action. In short, this litigation seems to be trying to fill the gap left by a failure to legislate or regulate, rather than as a prod to legislation and regulation.
Does anyone think that this litigation can result in a comprehensive and appropriate solution to the problem of plastic waste? On the other hand, those who would complain about activist judges can hardly complain when judges provide the only potential pathway towards a remedy. When Congress takes a pass, it’s difficult to complain when those harmed seek a judicial remedy.
And whether it’s PepsiCo. and plastics or DuPont and PFAS or some other manufacturer of some other useful compound alleged to cause adverse impacts, my advice would be to prepare for more litigation. Whether such litigation succeeds or not, nuisance cases will be more than just a nuisance for defendants.
Ubi jus ibi remedium. You can look it up.