Hannibal Eclipsed? Envelopment by Public Nuisance

Richard Faulk, Gardere Wynne Sewell LLP

Abstract

Only recently, the ancient tort of public nuisance was “down” and in the process of being “counted out” when its expansion was rejected by the highest courts of New Jersey, Rhode Island, Missouri and Ohio. Within the past year, however, it was remarkably resuscitated by federal courts that approved it as a vehicle for redressing climate change and interstate pollution. Without the constraints of geography, public nuisance now “spans the globe” in an enveloping maneuver that threatens to reduce Hannibal’s legendary victory at Cannae to a mere neighborhood brawl. Unless the tort’s scope is narrowed by reviewing courts, its pincer movement may encircle industries and apply pressures that can only be relieved by congressional intervention or international agreements. Public nuisance, which is one of the eldest creatures of the common law, may yet mature into a “monster that will devour in one gulp the entire law of torts.”