OPINION:
The end of the year is a time for reflection, and many consumers are looking back on a multi-year run of shortages, price-hikes, store closures, and everyday items being wiped off store shelves through a combination of regulations and lawsuits.
Much of this can be laid squarely at the feet of liberal activists. The left is making no effort to hide what they are doing: Pushing to reshape the consumer world using every tool at their disposal, be that through regulations, tax credits, or product bans.
One of the growing tools in this arsenal is public nuisance lawsuits against the makers of all sorts of everyday products. I’ve written about public nuisance lawsuits in the past. It is obvious that trial lawyers and progressive officials have been coordinating to exploit “public nuisance” lawsuits to score wins that they cannot land in state houses, in Washington, D.C., or at ballot boxes across the country. And the list of progressive targets is growing, from firearm manufacturers to carmakers to beverage companies that dare to sell plastic bottles.
The problematic layers of these lawsuits are seemingly endless. The organization I run, Alliance For Consumers, has spent the last year delving into these and documenting the most glaring aspects. This includes the obvious harm to everyday consumers, who almost never get a check out of these cases but lose access to lots of everyday goods. There is also the funneling of money from these lawsuits into left-wing political campaigns through what we call the “Shady Trial Lawyer Pipeline.” And then there are the ties that these lawsuits have to shadowy liberal dark money groups like Arabella Advisors that are behind all sorts of sweeping efforts to change our society and alter the structure of our democracy.
If left unchecked, this growing wave of public nuisance lawsuits will continue to beat against countless industries and wreak havoc with the lives of everyday people who want to be able to buy a car, a gun, a drink, or some take-out food without having to perfectly comply with the newest set of Progressive Lifestyle Choices that the left is pushing. That is why I regularly call for a full-court press to reign in these lawsuits, whether in the pages of the Wall Street Journal or in letters to Republican Governors.
Thankfully, there is a great opportunity for the U.S. Supreme Court to step in and help clean up the current public nuisance mess with some clear ground rules, stopping the current free-for-all and giving consumers some breathing room.
The opportunity lies in a case now sitting at the Supreme Court—American Petroleum Institute v. Minnesota—which involves public nuisance allegations related to climate change, one of the most advanced set of public nuisance topics in this current wave.
These public nuisance lawsuits embody exactly what the Left is seeking through public nuisance litigation: court-imposed imposition of left-wing policy solutions and billions of dollars in funding for left-wing priorities.
Indeed, as one judge in the federal court of appeals put it in the Minnesota appeal, American Petroleum Institute v. Minnesota involves Minnesota litigating the response to climate change and seeking “a far-reaching injunction, restitution, and disgorgement of ‘all profits made as a result of the companies’ unlawful conduct.’”
At the heart of the Minnesota case is a procedural question relating to what court the cases should be heard in. When these cases go forward on the merits in federal court, they lose. That is what happened with New York City’s version of this climate change lawsuit, for example.
But American Petroleum Institute v. Minnesota would also give the Supreme Court the chance to say more about these lawsuits and start the process of providing a conclusive trim back to this wave of left-wing legal efforts to reshape our society through the courtroom. I’m sure that view is, in part, what motivated seventeen of my former colleagues in state attorney general offices to ask the court to take up the case.
Ultimately, that is what is going to be needed, given the wave upon wave of these lawsuits filed across the country by states, cities, counties, school districts, and others. Absent some better guardrails for these cases emanating from the Supreme Court, odds are strong that these cases are going to turn into an unrestrained cudgel against anyone who dares to buck the current set of Progressive Lifestyle Choices.
It would go a long way to helping consumers if SCOTUS took up American Petroleum Institute v. Minnesota. There are other cases in the pipeline—for example, the Hawaii case before the Hawaii Supreme Court that was featured in my piece in the Wall Street Journal—but the left is using every procedural maneuver at their disposal to insulate their campaign from scrutiny and review in unfavorable forums. And if past is prelude, they will stop at nothing to continue that trend. Stepping in now and putting some guardrails on this free-for-all would be a huge win for consumers and provide a glimmer of hope going into this new year.
• O.H. Skinner is the Executive Director of Alliance for Consumers, an organization dedicated to protecting consumer interests from trial lawyers and politicians, and the former Solicitor General of Arizona.
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