Amicus Curiae Brief — The Sherwin-Williams Company, Petitioner v. California

Nos. 18-84, 18-86

IN THE

Supreme Court of the United States

____________________

CONAGRA GROCERY PRODUCTS COMPANY, ET AL.,

Petitioners,

v.

CALIFORNIA,

Respondent.

___________________________________

THE SHERWIN-WILLIAMS COMPANY,

Petitioner,

v.

CALIFORNIA,

Respondent.

___________________________________

On Petitions for Writ of Certiorari

to the Court of Appeal of California

____________________________________

BRIEF OF INDIANA, LOUISIANA, TEXAS,

UTAH, AND WYOMING AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

____________________________________

Office of the Indiana

CURTIS T. HILL, JR.

Attorney General

Attorney General of Indiana

IGC South, Fifth Floor

THOMAS M. FISHER*

302 W. Washington Street

Solicitor General

Indianapolis, Indiana 46204 KIAN HUDSON

(317) 232-6255

JULIA C. PAYNE

Tom.Fisher@atg.in.gov

Deputy Attorneys General

Counsel for Amici States

*Counsel of Record

Additional counsel with signature block

i

QUESTION PRESENTED

Whether the Due Process Clause of the Fourteenth

Amendment prohibits a State from arbitrarily imposing liability for lawful activity regardless of causation.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF THE AMICI STATES .......................1

SUMMARY OF THE ARGUMENT ............................2

REASONS FOR GRANTING THE

PETITIONS ...........................................................3

I.

This Case Exemplifies a Recent Trend

Where State and Local Governments

Use Public Nuisance Lawsuits as

Weapons for Wealth Transfers and

Social Change ......................................................3

II.

California’s Expansive Public

Nuisance Law Tests the Limits of Due

Process ...............................................................15

CONCLUSION ..........................................................23

ADDITIONAL COUNSEL ........................................24

iii

TABLE OF AUTHORITIES

FEDERAL CASES

American Electric Power Co., Inc. v.

Connecticut,

564 U.S. 410 (2011) ..............................................18

Antolok v. United States,

873 F.2d 369 (D.C. Cir. 1989) ..............................17

Baker v. Carr,

369 U.S. 186 (1962) ..............................................16

BMW of North America, Inc. v. Gore,

517 U.S. 559 (1996) ..............................................19

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985) ..............................................20

California v. Gen. Motors Corp.,

No. C06-05755, 2007 WL 2726871 (N.D.

Cal. Sept. 17, 2007) ........................................11, 17

Camden Cnty. Bd. of Chosen Freeholders v.

Beretta, U.S.A. Corp.,

273 F.3d 536 (3d Cir. 2001) ...............................8, 9

Carmichael v. Kellogg, Brown & Root

Servs., Inc.,

572 F.3d 1271 (11th Cir. 2009)............................17

iv

FEDERAL CASES [CONT’D]

City of New York v. B.P. P.L.C.,

No. 18 Civ. 182 (JFK), 2018 WL 3475470

(S.D.N.Y. July 19, 2018) ......................................12

City of Oakland v. BP P.L.C.,

Nos. C 17-06011 WHA, C 17-06012

WHA, 2018 WL 3609055 (N.D. Cal. July

27, 2018) .........................................................12, 20

City of Philadelphia v. Beretta U.S.A. Corp.,

277 F.3d 415 (3d Cir. 2002) ...................................8

Comer v. Murphy Oil,

No. 05-436, 2007 WL 6942285 (S.D.

Miss. Aug. 30, 2007) (unpublished

ruling), appeal dismissed, 607 F.3d 1049

(5th Cir. 2010), mandamus denied, No.

10-294 (U.S. Jan. 10, 2011) .................................17

Honda Motor Co. v. Oberg,

512 U.S. 415 (1994) ........................................18, 19

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ...............................16

Native Vill. of Kivalina v. ExxonMobil

Corp.,

663 F. Supp. 2d 863 (N.D. Cal. 2009),

aff'd, 696 F.3d 849 (9th Cir. 2012) .......... 11. 16, 17

v

FEDERAL CASES [CONT’D]

Occidental of Umm al Qaywayn, Inc. v. A

Certain Cargo of Petrol.,

577 F.2d 1196 (5th Cir. 1978)..............................17

Philip Morris USA v. Williams,

549 U.S. 346 (2007) ..............................................19

State Farm Mutual Automobile Insurance

Co. v. Campbell,

538 U.S. 408 (2003) ..............................................19

White v. Smith & Wesson,

97 F. Supp. 2d 816 (N.D. Ohio 2000) ....................8

STATE CASES

Blomen v. N. Barstow Co.,

85 A. 924 (R.I. 1913) ............................................13

Braun v. Ionotti,

175 A. 656 (1934) .................................................13

City of Boston v. Smith & Wesson Corp.,

12 Mass. L. Rptr. 225 (Mass. Super. Ct.

2000) .......................................................................8

City of Chicago v. American Cyanamid Co.,

823 N.E.2d 126 (Ill. App. Ct. 2005) .......................9

City of Chicago v. Beretta U.S.A. Corp.,

821 N.E.2d 1099 (Ill. 2004) ....................................8

vi

STATE CASES [CONT’D]

City of Cincinnati v. Beretta U.S.A. Corp.,

768 N.E.2d 1136 (Ohio 2002) ................................8

City of Milwaukee v. NL Industries, Inc.,

691 N.W.2d 888 (Wis. Ct. App. 2004) .................10

City of St. Louis v. Benjamin Moore & Co.,

226 S.W.3d 110 (Mo. 2007) ....................................9

Detroit Board of Education v. Celotex Corp.,

493 N.W.2d 513 (Mich. Ct. App. 1992) .................7

Diamond v. General Motors Corp.,

97 Cal. Rptr. 639 (Cal. Ct. App. 1971) ..................6

Ganim v. Smith & Wesson Corp.,

780 A.2d 98 (Conn. 2001) ......................................9

City of Gary ex rel. King v. Smith & Wesson

Corp.,

801 N.E.2d 1222 (Ind. 2003) ..................................8

Lapre v. Kane,

36 A.2d 92 (R.I. 1944) ..........................................13

In re Lead Paint Litigation,

924 A.2d 484 (N.J. 2007) .................................9, 10

People v. ConAgra Grocery Products Co.,

227 Cal. Rptr. 3d 499 (Cal. Ct. App.

2017) ...............................................................14, 15

vii

STATE CASES [CONT’D]

People v. Miner,

2 Lans. 396 (N.Y. App. Div. 1868) .........................1

State v. Lead Industries Ass’n, Inc.,

951 A.2d 428 (R.I. 2008) .................... 10, 12, 13, 14

State v. Warren,

180 So. 2d 293 (Miss. 1965) ...................................1

Wood v. Picillo,

443 A.2d 1244 (R.I. 1982) ....................................13

Young v. Bryco Arms,

821 N.E.2d 1078 (Ill. 2004) ....................................9

RULES

Supreme Court Rule 37.2(a) .......................................1

OTHER AUTHORITIES

3 William Blackstone, Commentaries ch. 4 .............21

14 N.Y.Prac., New York Law of Torts § 8:2 .............21

Christopher H. Schroeder, Corrective

Justice and Liability for Increasing

Risks, 37 UCLA L. Rev. 439 (1990)...............21, 22

viii

OTHER AUTHORITIES [CONT’D]

Donald G. Gifford, Public Nuisance as a

Mass Products Liability Tort, 71 U. Cin.

L. Rev. 741 (2003) ..........................................5, 6, 7

EPA, Protect Your Family from Exposures

to Lead, https://www.epa.gov/lead/

protect-your-family-exposures-lead ....................13

H.L.A. Hart & T. Honore, Causation in the

Law lxvii (2d ed. 1985).........................................22

Jason M. Solomon, What Is Civil Justice, 44

Loyola of Los Angeles L. Rev. 317 (2010) ...........21

Matthew R. Watson, Comment, Venturing

into the “Impenetrable Jungle”: How

California’s Expansive Public Nuisance

Doctrine May Result in an

Unprecedented Judgment Against the

Lead Paint Industry in the Case of

County of Santa Clara v. Atlantic

Richfield Company, 15 Roger Williams

U.L. Rev. 612 (2010) ................................ 6, 7, 9, 10

National Association of Attorneys General,

State Attorneys General Powers and

Responsibilities (Emily Myers ed., 3d ed.

2013) ...................................................................7, 8

Paul Nolette, Federalism on Trial (2015) ................18

ix

OTHER AUTHORITIES [CONT’D]

Restatement (Second) of Torts § 821B

(1979) ......................................................................4

Victor E. Schwartz & Phil Goldberg, The

Law of Public Nuisance: Maintaining

Rational Boundaries on a Rational Tort,

45 Washburn L.J. 541 (2006) ...................... passim

1

INTEREST OF THE AMICI STATES1

The States of Indiana, Louisiana, Texas, Utah,

and Wyoming respectfully submit this brief as amici

curiae in support of Petitioners. At common law, the

attorney general had the power to prevent and abate

public nuisances. See State v. Warren, 180 So. 2d 293,

299 (Miss. 1965); People v. Miner, 2 Lans. 396 (N.Y.

App. Div. 1868). Traditionally, that power included

the ability to require a person having control over a

public nuisance to abate it. More recently, however,

some state and local governments have attempted to

wield public nuisance lawsuits as a weapon against a

variety of societal ills, regardless whether their chosen defendants caused the nuisance or have the ability to abate it in any meaningful way.

Amici are States that seek to police the boundaries

of public nuisance lawsuits. Cases such as this that

enable courts to impose liability arbitrarily with no

proof that the defendants caused any harm or can

abate it in any recognizable way denigrate the appropriate power of attorneys general to abate legitimate

public nuisances and threaten to undermine the Anglo-American tradition of justice. For these reasons,

Amici urge the Court to grant the petitions and reverse the judgment of the California Court of Appeal.

1 Pursuant to Supreme Court Rule 37.2(a), counsel of record for

all parties have received notice of the Amici States’ intention to

file this brief at least 10 days prior to the due date of this brief.

2

SUMMARY OF THE ARGUMENT

This case concerns the Due Process limits on a

State’s ability to impose liability arbitrarily and retroactively as part of a broader scheme to remedy societal harms. California attempts to employ public nuisance law as a weapon for regulation of the paint industry—or, more precisely, to extract penalties for

long-ago participation in a lead paint industry that no

longer exists. In so doing, it has required Petitioners

to pay damages for conditions that they neither

caused nor have any control over. This theory of liability goes far beyond any traditional understanding

of public nuisance law.

At common law and during the colonial years, public nuisance law was a method of tempering invasions

on public rights, such as the use of public lands or the

upholding of public morality. But during the Industrial Revolution, States began to experiment with using public nuisance law as a means of regulation. In

more recent years, States have attempted to expand

public nuisance law to deal with a variety of problems,

from tobacco-related healthcare costs to global climate change. These theories of liability, exemplified

by this case, dispose with traditional notions of causation in favor of requiring industry groups to abide

by broad injunctions or pay large amounts of damages, theoretically to “abate” “nuisances,” but really

to substitute a deep-pocketed scapegoat for an actual

responsible party.

In other contexts, this Court has imposed constitutional limitations on the ability of States and state

3

courts to arbitrarily assign liability. For instance,

courts have rejected public nuisance claims that implicate political questions or have been displaced by

statutory regulation. The Commerce Clause and the

constitutional requirements of personal jurisdiction

also impose limits on the ability of public nuisance

lawsuits to regulate out-of-state conduct. And the

Court has applied notions of “substantive” due process to limit the amount of punitive damages that

courts may impose. This case presents an opportunity

for the Court to consider another possible constitutional limitation on expansive and amorphous liability: whether due process prohibits the imposition of

retroactive liability without proof of causation.

Amici urge this Court to grant certiorari in order

to answer this important federal question.

REASONS FOR GRANTING THE PETITIONS

I. This Case Exemplifies a Recent Trend Where

State and Local Governments Use Public

Nuisance Lawsuits as Weapons for Wealth

Transfers and Social Change

Public nuisance law is derived from hundreds of

years of common law tradition. But in recent years,

state and local governments have sought to use public

nuisance lawsuits for a new purpose: to regulate

broad societal problems through litigation or failing

that, to enable mass transfers of wealth from industry

to preferred groups. These new regulatory nuisance

lawsuits drift far afield of the original common law

4

understanding of public nuisance doctrine. Yet previously-recognized constitutional restraints have

proved insufficient to reign them in.

1. At twelfth-century English common law, public

nuisance was a criminal offense for infringing on the

rights of the Crown. Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn

L.J. 541, 543 (2006). The offenses most commonly

took the form of purprestures, or encroachments upon

royal lands. Restatement (Second) of Torts § 821B

(1979). The attorney general could bring suit for injunctive relief to abate the nuisance by stopping infringement and repairing damage to the King’s property. Schwartz & Goldberg, supra, at 543.

Beginning in the fourteenth century, public nuisance law expanded to include not only the rights of

the Crown itself, but also those of the general public,

including “the right to safely walk along public highways, to breathe unpolluted air, to be undisturbed by

large gatherings of disorderly people and to be free

from the spreading of infectious diseases.” Id. at 543–

44 (internal citation omitted). Courts weighed the

value of the conduct against the harm it caused to determine whether it merited criminal punishment. Id.

at 544. And in 1535, nuisance law expanded to allow

private damages for individuals who suffered an injury different in kind than that of the general public.

Id.

The American colonies, and later the States, inherited the English common law tradition of public

5

nuisance. Id. at 545. Historically, American public

nuisance lawsuits involved “non-trespassory invasions of the public use and enjoyment of land,” “the

obstruction of public highways and waterways,” and

“using property in ways that conflicted with public

morals or social welfare,” such as “gambling halls,

taverns, or prostitution houses.” Id.

During the Industrial Revolution, public nuisance

evolved as a theory for seeking relief where legislatures could not keep up with changing technology. Id.

at 545–46. Such lawsuits included claims against factories for water pollution and claims against railroads

for noise and air pollution, the latter of which were

largely unsuccessful as long as the railroad operated

in accordance with the expectations of the legislature.

Id. at 546.

In the early twentieth century, state legislatures

began codifying nuisance law either by defining public nuisance broadly or by declaring specific activities

to be nuisances, such as “engaging in the sale of intoxicating liquors,” “conducting bawdy or assignation

houses,” or “maintaining gambling houses.” Donald

G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 804 (2003) (internal

citation omitted). These statutes made it easier for

state attorneys general to bring criminal prosecutions

for nuisance or suits for injunctive relief. Id. at 805.

Private lawsuits for monetary damages were much

less common. Id.

During the New Deal era, Congress and state legislatures began passing comprehensive statutory

6

schemes to regulate everything from railroads to alcohol sales. The new regulations lessened the need to

use the common law of public nuisance as a means of

addressing these problems. The use of public nuisance

lawsuits for regulatory purposes tapered off. Id. at

805–06.

In the 1970s, fueled by the broad definition of public nuisance in the Second Restatement of Torts,

courts experienced a resurgence of public nuisance

lawsuits in the context of environmental regulation.

Gifford, supra, at 806–09. In Diamond v. General Motors Corp., 97 Cal. Rptr. 639, 641 (Cal. Ct. App. 1971),

a class of property owners in Los Angeles County sued

a group of automobile manufacturers, petroleum refiners, gasoline-filling stations, and owners of industrial plants seeking both damages and injunctive relief for air pollution. The case was the first of its kind

seeking to hold product manufacturers, rather than

the actual polluters, responsible for the amorphous

problem of air pollution in Los Angeles County. Id. at

641–42; see also Gifford, supra, at 750; Schwartz &

Goldberg, supra, at 548–49. The court rejected class

certification, explaining that “[p]laintiff is simply asking the court to do what the elected representatives of

the people have not done: adopt stricter standards

over the discharge of air contaminants in this county,

and enforce them with the contempt power of the

court.” Diamond, 97 Cal. Rptr. at 645.

In the 1980s, after courts refused to hold asbestos

manufacturers strictly liable for the presence of asbestos in homes and schools, plaintiffs turned to public nuisance theory. Gifford, supra, at 751; Matthew

7

R. Watson, Comment, Venturing into the “Impenetrable Jungle”: How California’s Expansive Public Nuisance Doctrine May Result in an Unprecedented Judgment Against the Lead Paint Industry in the Case of

County of Santa Clara v. Atlantic Richfield Company,

15 Roger Williams U.L. Rev. 612, 617–18 (2010). In

Detroit Board of Education v. Celotex Corp., 493

N.W.2d 513, 516 (Mich. Ct. App. 1992), a class of public and private schools sued manufacturers whose asbestos products were used in their buildings. As in

Diamond, plaintiffs in Detroit Board of Education

sought to hold manufacturers liable for damages to

abate the nuisance even though they no longer retained control of their products. Id. at 517. The court

held that public nuisance was not a viable theory because it would “significantly expand, with unpredictable consequences, the remedies already available to

persons injured by products.” Id. at 521. The court

further explained that nuisance liability may not “be

imposed on a party whose only act was to create the

nuisance,” id., because “[d]efendants now lack the legal right to abate whatever hazards their products

may pose,” id. at 522.

But in the 1990s, States began turning to public

nuisance theories to target manufacturers, and in

particular to hold tobacco companies liable for state

Medicaid expenditures on tobacco-related health

problems. Gifford, supra, at 753; Schwartz & Goldberg, supra, at 554. Over forty States sued tobacco

companies seeking Medicaid reimbursement under a

variety of legal theories, including public nuisance.

National Association of Attorneys General, State Attorneys General Powers and Responsibilities 387

8

(Emily Myers ed., 3d ed. 2013). However, these legal

theories never faced a definitive test in court because

the cases settled. Id. at 388.

Also during the late 1990s and early 2000s, States

and municipalities sought to hold firearm manufacturers liable for gun violence by way of public nuisance law. Schwartz & Goldberg, supra, at 555–57.

But unlike the environmental and asbestos lawsuits,

some of the firearm cases were successful in court.

For example, in City of Gary ex rel. King v. Smith &

Wesson Corp., 801 N.E.2d 1222, 1234 (Ind. 2003), the

Indiana Supreme Court held that a City’s public nuisance claim did not violate due process because “a nuisance claim may be predicated on a lawful activity

conducted in such a manner that it imposes costs on

others.” See also White v. Smith & Wesson, 97 F.

Supp. 2d 816 (N.D. Ohio 2000); City of Boston v. Smith

& Wesson Corp., 12 Mass. L. Rptr. 225 (Mass. Super.

Ct. 2000); City of Cincinnati v. Beretta U.S.A. Corp.,

768 N.E.2d 1136 (Ohio 2002).

But more courts rejected the same theories. In City

of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099,

1116 (Ill. 2004), the court first held that the right to

be free from gun violence was not a public, but an individual, right. It then held that “the alleged public

nuisance is not so foreseeable to the dealer defendants

that their conduct can be deemed a legal cause of a

nuisance that is the result of the aggregate of the

criminal acts of many individuals over whom they

have no control.” Id. at 1138; see also City of Philadelphia v. Beretta U.S.A. Corp., 277 F.3d 415 (3d Cir.

2002); Camden Cnty. Bd. of Chosen Freeholders v.

9

Beretta, U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001); Ganim v. Smith & Wesson Corp., 780 A.2d 98 (Conn.

2001); Young v. Bryco Arms, 821 N.E.2d 1078 (Ill.

2004).

2. States next sought to remedy the societal ill of

deteriorated lead paint through public nuisance lawsuits, but courts largely rejected such theories for the

lack of a causal connection as traditionally required

by public nuisance law. See Watson, supra, at 619.

In City of St. Louis v. Benjamin Moore & Co., 226

S.W.3d 110, 113 (Mo. 2007), the City brought a nuisance suit against lead paint manufacturers seeking

damages for the costs of abating lead paint in private

residences. The court rejected the suit because the

City could not show that “the particular defendant actually caused the problem.” Id. at 116.

Similarly, in City of Chicago v. American Cyanamid Co., 823 N.E.2d 126, 128 (Ill. App. Ct. 2005), the

City alleged that the defendant paint manufacturers

had created a public nuisance by promoting leadbased paint for residential use. The court “conclude[d]

that plaintiff has failed to allege sufficient facts to

show that defendants were the cause in fact of the alleged nuisance.” Id. at 136.

Then, in In re Lead Paint Litigation, 924 A.2d 484,

501 (N.J. 2007), the court rejected the public-nuisance

claim brought by twenty-six New Jersey municipalities against lead paint companies because, even assuming “that the continuing presence of lead paint in

homes qualifies as an interference with a common

10

right sufficient to constitute a public nuisance for tort

purposes,” “plaintiffs’ complaints aim wide of the limits of that theory” because they seek to hold liable a

defendant that has no control over the premises

where the lead paint is found and thus, no ability to

abate the nuisance. Moreover, the court also explained that an expansion of public nuisance law was

not needed to address problems that the legislature

had already addressed by a “careful and comprehensive scheme.” Id. at 440.

Next, in State v. Lead Industries Ass’n, Inc., 951

A.2d 428, 455 (R.I. 2008), the Rhode Island Supreme

Court rejected a the State’s public nuisance action

against lead paint manufacturers because “the state's

complaint . . . fails to allege any facts that would support a conclusion that defendants were in control of

the lead pigment at the time it harmed Rhode Island’s

children” (emphasis added).

Finally, in City of Milwaukee v. NL Industries,

Inc., 691 N.W.2d 888, 890 (Wis. Ct. App. 2004), the

City brought suit against paint manufacturers to recover the cost of abatement of lead paint in homes.

The court held that an issue of material fact existed

as to whether the defendants caused the harm alleged. Id. at 893. On remand, a jury found that defendants’ conduct did not cause the nuisance. Watson, supra, at 627.

3. Despite these decisions, state and local officials

continue to push the boundaries of public nuisance

law by using it as a means for regulation or largescale wealth transfers.

11

For instance, district courts dismissed two cases

seeking relief from greenhouse-gas-emitting industries for harms allegedly arising from global climate

change. In one case, an Alaskan village brought suit

against twenty-four oil, energy, and utility companies

“seek[ing] damages under a federal common law

claim of nuisance, based on their alleged contribution

to the excessive emission of carbon dioxide and other

greenhouse gases which they claim are causing global

warming.” Native Vill. of Kivalina v. ExxonMobil

Corp., 663 F. Supp. 2d 863, 868 (N.D. Cal. 2009), aff'd,

696 F.3d 849 (9th Cir. 2012). The court dismissed the

village’s claims for “abatement” of climate-cased

coastal erosion, observing that “the allocation of

fault—and cost—of global warming is a matter appropriately left for determination by the executive or legislative branch.” Id. at 877.

In another case, the same court dismissed public

nuisance claims against automakers for damages,

recognizing “the complexity of the initial global warming policy determinations that must be made by the

elected branches prior to the proper adjudication of

Plaintiff’s federal common law nuisance claim[,]”California v. Gen. Motors Corp., No. C06-05755, 2007 WL

2726871 at *6, *16 (N.D. Cal. Sept. 17, 2007), and the

“lack of judicially discoverable or manageable standards by which to properly adjudicate Plaintiff's federal common law global warning nuisance claim,” id.

at *16.

12

Even more recently, a federal district court in New

York dismissed a public nuisance lawsuit against several gas and oil companies for damages alleging that

production and sale of fossil fuels contributed to climate change. See City of New York v. B.P. P.L.C., No.

18 Civ. 182 (JFK), 2018 WL 3475470 (S.D.N.Y. July

19, 2018). And in California, a federal court dismissed

a similar lawsuit for lack of personal jurisdiction. See

City of Oakland v. BP P.L.C., Nos. C 17-06011 WHA,

C 17-06012 WHA, 2018 WL 3609055 (N.D. Cal. July

27, 2018).

4. The plaintiffs’ overwhelming success in this

case, however, departs from cases where courts have

kept public nuisance claims within traditional

bounds.

A common law public nuisance claim has three elements: (1) unreasonable interference; (2) with a right

common to the general public; (3) by those with control over the instrumentality alleged to have created

the nuisance when the damage occurred. See, e.g.,

State v. Lead Indus., Ass’n, Inc., 951 A.2d 428, 446

(R.I. 2008). California’s lawsuit does not meet these

requirements.

First, California has not shown that any of Petitioners’ actions were unreasonable. Sherwin-Williams ran a single advertisement promoting its

paints, some of which (certain outdoor paints) contained lead, at a time when lead paint was legal and

contributed money to a trade association that promoted lead paint. App. 392a–95a, 399a. There is no

13

evidence that any of the paint manufacturers continued to promote lead paint once its harmful effects to

the general public became known or that it ever promoted lead paint for residential interior use in California.

Second, Petitioners have not interfered with a

right common to the general public. Lawful activity

can occasionally be deemed unreasonable, but only if

it “create[s] a substantial and continuing interference

with a public right.” Lead Indus., Ass’n, 951 A.2d at

447. For example, courts have held that chemical

dumps causing fires, Wood v. Picillo, 443 A.2d 1244,

1245–48 (R.I. 1982), swine operations emitting bad

odors, Lapre v. Kane, 36 A.2d 92, 94–95 (R.I. 1944),

greenhouses emitting smoke, Braun v. Ionotti, 175 A.

656, 657 (1934), and construction equipment causing

noise and vibration, Blomen v. N. Barstow Co., 85 A.

924, 924–28 (R.I. 1913), to be public nuisances. Here

the alleged nuisance is the mere presence of lead paint

in thousands of individual dwellings across the State

of California. Lead paint creates no substantial and

continuing interference when left undisturbed. See

EPA, Protect Your Family from Exposures to Lead,

https://www.epa.gov/lead/protect-your-family-exposures-lead (explaining that undisturbed lead paint

poses no hazard). California has not shown that these

minor, decades-old actions have actually caused a

public health crisis.

Regardless, even deteriorating lead paint inside a

private residence is not a public nuisance. See Lead

Industries, Ass’n, 951 A.2d at 454. Relying on “the

longstanding principle that a public right is a right of

14

the public shared resources such as air, water, or public rights of way,” id. at 455, the court in Lead Industries held that “[t]he right of an individual child not to

be poisoned by lead paint” “falls far short of alleging

an interference with a public right.” Id. at 453. Because the nuisance that California alleges does not interfere with a public right, the damages that California seeks are merely a transfer of wealth, rather than

a true abatement of a public nuisance.

Third, Petitioners do not have control over the instrumentality alleged to have created the nuisance.

Petitioners do not own any of the residences where

the lead paint was used, nor do Petitioners have the

power to abate the nuisance by remediation. Instead,

Petitioners have been ordered to pay millions of dollars in damages to an “abatement fund.” App. 180a.

In contrast, public nuisance suits were historically

brought for injunctive relief to abate the nuisance by

stopping infringement of the public right and repairing any damage to property. Schwartz & Goldberg,

supra, at 546.

Yet the California Court of Appeal held three out

of many former lead paint manufacturers jointly and

severally liable for the ongoing presence of lead paint

in California homes and apartment buildings. See

generally People v. ConAgra Grocery Products Co.,

227 Cal. Rptr. 3d 499 (Cal. Ct. App. 2017). The court

specifically stated that the defendants’ actions “were

not too remote to be considered a legal cause of the

current hazard even if the actions of others in response to those promotions and the passive neglect of

owners also played a causal role.” Id. at 546. The

15

court simultaneously found that the promotions were

“a very minor force” in creating the nuisance, id. at

545, while holding that requiring manufacturers to

“clean up the hazardous conditions that [it] assisted

in creating . . . is not disproportional to its wrongdoing.” Id. at 559.

In so holding, the California court departed dramatically from traditional public nuisance law, which

required a material causal link between the defendants’ conduct and the alleged harm, particularly

where liability is divined post hoc.

II. California’s Expansive Public Nuisance Law

Tests the Limits of Due Process

Recent developments in public nuisance law, especially theories like that of California in this case, distort the traditional purpose of civil lawsuits in the Anglo-American tradition. Instead of seeking to redress

a particular injury caused by a particular defendant,

they seek to enact societal change or massive wealth

transfers through the court system by holding entire

industries responsible for broad societal harms. In

other words, such lawsuits seek to regulate (or at

least punish) industry in the absence of legislative enactments. The question is whether those distortions

transgress constitutional limits.

In the past, this and other courts have been willing

to impose constitutional controls over distortions of

the civil justice system in multiple contexts, including

by way of the political question doctrine, displacement by statute, substantive rights under the Due

16

Process Clause, and extraterritoriality doctrine. This

case presents an opportunity to consider whether the

procedural safeguards of the Due Process Clause impose constitutional limitations on regulation or general wealth transfer through litigation.

1. First, courts around the country have rejected

public nuisance and other tort claims that are in substance political and therefore nonjusticiable.

Longstanding Supreme Court precedent has established that a claim presents non-justiciable political questions if its adjudication would not be governed

by “judicially discoverable and manageable standards” or would require “an initial policy determination of a kind clearly for non-judicial discretion.”

Baker v. Carr, 369 U.S. 186, 217 (1962). The political

question doctrine arises from the Constitution’s core

structural values of judicial modesty and restraint.

As early as Marbury v. Madison, Chief Justice Marshall stated that “[q]uestions in their nature political,

or which are, by the constitution and laws, submitted

to the executive, can never be made in this court.” 5

U.S. (1 Cranch) 137, 170 (1803). These questions,

Marshall wrote, “respect the nation, not individual

rights . . . .” Id. at 166. There, in the very case that

establishes the power of judicial review, the political

question doctrine received its judicial imprimatur.

With respect to public nuisance claims in particular, attempts to litigate climate change with public

nuisance lawsuits have run headlong into the political

question doctrine. See Native Vill. of Kivalina v.

Exxon Mobil Corp., 663 F. Supp 2d 863, 871 (N.D. Cal.

17

2009), aff’d, 696 F.3d 849 (9th Cir. 2012); California

v. Gen. Motors Corp., No. C06-05755, 2007 WL

2726871 at *6–16 (N.D. Cal. Sept. 17, 2007).

Similarly, a district court in Mississippi dismissed

on political question grounds a lawsuit by Gulf of

Mexico residents against oil and gas companies for

damages from Hurricane Katrina, which plaintiffs alleged was strengthened by climate change. Comer v.

Murphy Oil, No. 05-436, 2007 WL 6942285 (S.D. Miss.

Aug. 30, 2007) (unpublished ruling), appeal dismissed, 607 F.3d 1049 (5th Cir. 2010), mandamus denied, No. 10-294 (U.S. Jan. 10, 2011).

More broadly, several Circuits and other federal

courts have recognized that political questions may

arise in cases that are nominally tort claims. See, e.g.,

Carmichael v. Kellogg, Brown & Root Servs., Inc., 572

F.3d 1271, 1280–96 (11th Cir. 2009) (finding tort

claims arising from automobile accident were barred

by the political question doctrine); Antolok v. United

States, 873 F.2d 369, 383–84 (D.C. Cir. 1989) (noting

that “[i]t is the political nature of the [issue], not the

tort nature of the individual claims, that bars our review and in which the Judiciary has no expertise.”);

Occidental of Umm al Qaywayn, Inc. v. A Certain

Cargo of Petrol., 577 F.2d 1196, 1203–05 (5th Cir.

1978) (concluding tortious conversion claims were

barred by the political question doctrine).

Thus, in some circumstances, structural constitutional restrictions have effectively restrained adventurous theories for expanding judicial power via common law claims.

18

2. Second, courts have rejected public nuisance

claims as displaced by statutory regulation.

Most notably, in American Electric Power Co., Inc.

v. Connecticut, 564 U.S. 410 (2011), eight States sued

several private utilities alleging that carbon dioxide

emissions had contributed to the public nuisance of

global warming. Paul Nolette, Federalism on Trial

144–45 (2015). The district court dismissed the lawsuit on political question grounds, but the Second Circuit reversed, holding that the States had alleged a

viable public nuisance claim under federal common

law. Id. at 146–48. This Court reversed, holding that

“the Clean Air Act and the EPA actions it authorizes

displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired

power plants.” Am. Elec. Power Co., 564 U.S. at 424.

Displacement of federal common law by statute

represents the converse of the political question doctrine. In political question doctrine cases, courts

choose not to define the parameters of liability, but to

leave room for legislatures to do so; in displacement

cases, courts recognize that the legislature has already done so. And in the state common law context,

preemption by federal statute serves the same function.

3. Next, the Court has used constitutional doctrine to limit the use of punitive damages to regulate

wholly extraterritorial conduct. In Honda Motor Co.

v. Oberg, 512 U.S. 415, 430 (1994), the Court ex-

19

plained that “traditional practice provides a touchstone for constitutional analysis” under the Due Process Clause. It relied on “the well-established common

law protection against arbitrary deprivations of property” to hold that Oregon’s constitutional amendment

prohibiting judicial review of punitive damages

awards violates substantive rights under the Due

Process Clause. Id. at 430.

Similarly, the Due Process Clause prevents States

from assessing punitive damages for harms caused to

the general public, rather than to the specific plaintiff

bringing the suit. See Philip Morris USA v. Williams,

549 U.S. 346 (2007); State Farm Mutual Automobile

Insurance Co. v. Campbell, 538 U.S. 408 (2003). The

problem in the punitive damages cases was to claim a

private remedy for a public harm. California here

seeks a converse, yet similarly misaligned, outcome:

a public remedy for a private harm (if that).

Both Due Process and Commerce Clause considerations, moreover, prohibit States from using punitive

damages to punish out-of-state conduct. In BMW of

North America, Inc. v. Gore, 517 U.S. 559, 572 (1996),

when an Alabama court attempted to alter BMW’s nationwide policies by imposing punitive damages for

wholly extraterritorial conduct, the Court decreed

that “a State may not impose economic sanctions on

violators of its laws with the intent of changing the

tortfeasors’ lawful conduct in other States.”

4. Personal jurisdiction presents another constitutional limit to regulation via civil liability in state

20

court. “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful ‘contacts, ties, or relations.’”

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–

72 (1985). State courts may exercise personal jurisdiction over only those defendants who have “purposefully established ‘minimum contacts’ in the forum

State.” Id. at 474. Moreover, “these contacts may be

considered in light of other factors to determine

whether the assertion of personal jurisdiction would

comport with ‘fair play and substantial justice.’” Id.

at 476.

In the public nuisance context, in City of Oakland

v. BP P.L.C., Nos. C 17-06011 WHA, C 17-06012

WHA, 2018 WL 3609055 (N.D. Cal. July 27, 2018),

where the City brought public-nuisance lawsuits to

remedy global climate change against three companies who produced and sold fossil fuels, the court held

that it lacked personal jurisdiction over the defendants because “global warming would have continued

in the absence of all California-related activities of the

defendants.” Id. at *3. Consequently, personal jurisdiction serves as another constitutional limit to regulation by litigation.

5. As this case demonstrates, however, even these

restraints are not enough to prevent vague and expansive tort liability theories as a means of regulating

industry. The question remains whether the Due Process Clause requires some adherence to traditional

limits on common law liability, particularly where

21

courts are employing broad theories of equitable relief

rather than legislatively decreed remedies.

Here, Petitioners have been held jointly and severally liable because it advertised lead paint for lawful use over seventy years ago and contributed to a

trade association. California has not even proved that

any of the remaining lead paint in houses and apartment buildings (1) is harming anyone; (2) was manufactured by Petitioners or (3) that anyone relied on

Petitioners’ advertisements in deciding to use lead

paint. Based on this scant evidence, the court below

required Petitioners to pay for inspection and remediation of tens of thousands of California homes. This

liability-without-causation approach substantially

departs from traditional public nuisance doctrine

which required plaintiffs to show causation.

In the Anglo-American tradition, the purpose of

the civil court system is “to bring justice home to every

man’s door” by ensuring that injuries are “redressed

in an easy and expeditious manner.” 3 William Blackstone, Commentaries ch. 4. Yet civil justice also requires that “the claim is brought against and addressed to the one who has allegedly caused the

harm.” Jason M. Solomon, What Is Civil Justice, 44

Loyola of Los Angeles L. Rev. 317, 329 (2010). Thus,

the justice system is designed to “vindicate[e] the

right of the victim to hold the wrongdoer accountable.” Id. See also 14 N.Y.Prac., New York Law of

Torts § 8:2 (“[I]t would not seem fair to allocate losses

onto those who have committed no wrongdoing.”);

Christopher H. Schroeder, Corrective Justice and Liability for Increasing Risks, 37 UCLA L. Rev. 439, 439

22

(1990) (“A fundamental feature of [corrective justice]

is the causation requirement: an individual must

have caused harm before he or she can be held liable

in tort.”); H.L.A. Hart & T. Honore, Causation in the

Law lxvii (2d ed. 1985) (“The courts [have] further

made it clear that in the civil law of negligence causal

connection is a requisite of liability which is additional to the . . . [creation of foreseeable risks] of

harm.” (footnote omitted)). A court system that pays

no heed to causation fails to fulfill this purpose.

Accordingly, amici urge the Court to grant certiorari to resolve the important question whether the

Due Process Clause imposes any limits on the use of

public nuisance lawsuits to achieve broad wealth

transfer and regulatory ends by imposing retroactive

liability on selected out-of-state manufacturers without proof of causation.

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CONCLUSION

The Petitions should be granted.

Respectfully submitted,

Office of the Indiana

Attorney General

IGC South, 5th Floor

302 W. Washington Street

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

CURTIS T. HILL, JR.

Attorney General

THOMAS M. FISHER*

Solicitor General

KIAN HUDSON

JULIA C. PAYNE

Deputy Attorneys

General

Counsel for Amici States

*Counsel of Record

Dated: August 16, 2018

24

ADDITIONAL COUNSEL

PETER K. MICHAEL

Attorney General

State of Wyoming

SEAN D. REYES

Attorney General

State of Utah

JEFF LANDRY

Attorney General

State of Louisiana

KEN PAXTON

Attorney General

State of Texas

Counsel for Amici States

Dated: August 16, 2018