Public health lawsuits — parens patriae litigation filed on behalf of states and municipalities against dangerous products such as tobacco, lead paint, and handguns — are being extended to America’s largest environmental disaster; the April 2010 BP oil spill. Three weeks ago, Louisiana, following in the footsteps of Alabama, became the second state to file an environmental parens patriae lawsuit against BP and other affiliated companies, seeking to collect damages for collective injuries from oil and toxic dispersants that have polluted its waters, wetlands and other real property assets. The Alabama attorney general’s complaint detailing the causes of action includes claims for “gross negligence, trespass, public and private nuisance,” seeking recovery under the Oil Pollution Act of 1990. Public nuisance lawsuits to protect water purity and other environmental resources have a long history, stretching back to seventeenth century England. The states are using this historically grounded tort combined with parens patriae as a mechanism to redress collective environmental disasters and public health epidemics.
This Article suggests that the Gulf State attorneys general are making a mistake in basing their BP lawsuit claims on the doctrine of public nuisance. We reconceptualize the Deepwater Horizon oil rig as a product with a defective part, the malfunctioning blowout preventer, that was the “but for” cause of the vast majority of the environmental disaster. The public nuisance strategy was first used in the tobacco parens patriae lawsuits filed by State AGs in order to side-step defenses that smokers assumed the risk of smoking or contributed to their own injury. Attorneys general and class action lawyers are continuing to use this strategy that worked in the past. However, in the BP oil spill, there is no need to deploy public nuisance as no class of claimants contributed to their own injury in any way. Products liability may also be appropriate under either a failure to warn or defective design analysis of the defective dispersants used in the aftermath of the oil spill. Public nuisance is useful when causal connections are indirect but in the BP spill, there is little problem establishing causality.
This Article describes the history, purpose, evolution and modern usage of the Thirteenth Century doctrine of parens patriae, especially when used in tandem with the tort of public nuisance. We contend that the theory of products liability, rather than public nuisance, is a better fit for mass environmental disasters such as the BP oil spill. Products liability actions are possible against the supplier of drilling and completion fluids and additives, the manufacturer of the Deepwater Horizon platform, and the designer of the Macondo well. The most promising theories will be based upon violation of statutory standards, inadequate testing of cement linings and seals drilled, as well as the use of the toxic dispersants in the aftermath of the spill.