Oil and gas companies should worry about the $527 million judgment against Johnson & Johnson for the drug maker’s connection with the US opioid crisis.
Judge Thad Balkman, of the Cleveland County District Court in Oklahoma, ruled on Aug. 26 that Johnson & Johnson’s actions “caused harm, and those harms are the kinds recognized by [state law] because those actions annoyed, injured, or endangered the comfort, repose, health, or safety of Oklahomans.”
The harmful actions? Legally making painkillers around which has developed an epidemic of dependency and death by overdose.
Johnson & Johnson said it followed all regulations and will appeal the decision.
The case, brought by the Oklahoma government, is considered a bellwether for similar lawsuits filed by more than 40 states.
Appeals courts will decide whether Balkman ruled correctly.
For the oil and gas industry, the problem is the legal basis of these cases.
Scott Keller, former solicitor general of Texas, challenges the broadening use of the once-limited “public nuisance” doctrine.
“These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations,” Keller argues in the Sept. 3 Houston Chronicle.
“This public-nuisance theory of judicial power and legal liability would cover all industries disfavored in the current political landscape,” adds Keller, now chair of the Supreme Court and constitutional law practice at Baker Botts.
The politically disfavored oil and gas industry is a target, of course.
It faces lawsuits that “want a single court—somewhere, anywhere in the country—to declare climate change is a public nuisance and then get a hefty payout,” Keller says.
Later in his article, he writes, “Where there is no political consensus on how to approach a problem, the answer cannot be to bypass the political branches through a public-nuisance lawsuit.”
Political processes don’t deliver the disruption sought by climate activism because most people dislike expensive energy.
Activists therefore sue, making constitutional recklessness another reason to reject their agenda.
(From the subscription area of www.ogj.com, posted Sept. 6, 2019. To comment, join the Commentary channel at www.ogj.com/oilandgascommunity.)