A slow boat to Maui

How would the island change? First, tourism would dry up, with airplanes and cruise ships unable to visit the island and rental cars unable to circulate.

Second, demand for, and prices of, alternate fuels and modes of transportation, including wind, hydropower, wood, electric cars, horses, etc., would skyrocket. Third, oodles of plastic products, including food storage items that allow mainland produce to be safely consumed, would disappear from island shelves, homes, and hospitals. Fourth, unemployment would considerably increase. Fifth, life spans would significantly decrease.

And then demand for government social services would greatly increase, while tax revenues to fund those services would sharply decline.

The state government of Hawaii recognizes all this. Its legislature acknowledged that widespread use and consumption of petroleum products “are essential to the health, welfare, and safety of the people of Hawaii.” But in the face of these truths, the county government of Maui has recently launched a civil suit — possibly the single most pernicious tort suit I have ever studied.

Maui is suing Sunoco and other petroleum companies because their worldwide activity allegedly constitutes a public nuisance and has negligently contributed to global warming. Maui is seeking reimbursement for its alleged monetary damages as well as “abatement,” such as ceasing production of hydrocarbons. Defendants have timely filed a motion to dismiss the suit, which was heard on Aug. 18 by Judge Jeffrey P. Crabtree.

I have written extensively about recent attempts to abuse the tort of public nuisance. Let me enumerate five ways — word limits preclude a more complete treatment — in which the Maui suit is particularly egregious.

First, it targets legal, explicitly authorized, and highly regulated activity that occurs outside the county, over which the county has no jurisdiction and which the state that created the county extols as essential to collective welfare. Second, it is a request to Crabtree to usurp the powers of political branches to set state and national energy and climate policy in violation of the doctrine of separation of powers. Third, it targets corporate behavior that is more than 20 years old in blatant violation of the state’s two-year statute of limitations. Fourth, it violates basic tort requirements of proximate causation and damages by targeting behavior that will allegedly contribute to harm that is in reality speculative in the future and the result of billions of disparate actions by countless people and companies. Finally, it follows decades of government tolerance and encouragement of the very behavior that is now being attacked.

Hawaii has promoted and continues to promote the availability of petroleum products. It taxes their sale as befits its legislative function. The Aloha State has even, unwisely, in my opinion, attempted to cap retail gas prices in an effort to ensure the affordability of gas for low-income citizens. In fact, Hawaii law makes it a felony punishable by up to five years in prison to “prevent,” limit,” “lessen,” or “restrict … the manufacture, production, supply, or distribution of petroleum products.”

The lawyers behind this lawsuit have tried and failed in efforts to launch similar suits elsewhere. These defeats are a good thing. And Maui’s suit, if successful, would utterly destroy tort law. Anyone who fears future cancer could sue to require, or have his or her government sue to require, “damages and abatement” from companies who supplied any product — check out California’s extensive list — that might be carcinogenic. Anyone who ever suffered any harm from traffic congestion could sue, or have his or her government sue, to obtain “damages and abatement” from automobile manufacturers and sellers.

I could go on, but readers get the picture: Virtually very contemplated harm could be transformed into a public nuisance lawsuit if a meritless suit like this one were to succeed.

Hawaii’s 1998 Climate Action Plan itself recognized that “significant reductions in air travel would be an economic disaster” for the state. I’m confident that Crabtree will do the right thing and preserve sanity in Hawaiian tort law. We all deserve better than a slow boat to Maui.

Michael I. Krauss is a professor emeritus at the Antonin Scalia Law School at George Mason University.