Public Nuisance Claims Continue To Gain Traction In Plastics Litigation

Overview

State and local governments and citizen groups are increasingly turning to suits under state nuisance and consumer protection laws to bring novel types of environmental claims. B&D recently published an overview of litigation targeting consumer goods companies and polymer and packaging manufacturers, and focusing on alleged harms of plastic waste and microplastics. A recent decision in one of these cases provides some insight into the types of claims that may succeed and those that may face more challenges. In Sierra Club v. Exxon Mobil (N.D. Cal), the court allowed a public nuisance claim to proceed based on only a "handful" of allegedly misleading statements by the defendant, but dismissed a consumer protection law claim brought under California's Unfair Competition Law (UCL).

New decision: Sierra Club v. Exxon Mobil Corp. (N.D. Cal. Sept. 5, 2025)

Sierra Club and other environmental groups brought an action against Exxon Mobil alleging that it "created a public nuisance by producing plastic polymers, distributing them widely throughout the California economy, and promoting them for single-use purposes by suggesting that they are disposable when in fact they are not." On September 5, 2025, Chief Judge Seeborg allowed the public nuisance claims to proceed, but dismissed claims under California's UCL with leave to amend.

As to public nuisance, at the pleading stage, the court determined allegations that Exxon knew single-use plastics were "technically and economically impossible to dispose of safely," yet promoted them and allegedly misrepresented their recyclability were sufficiently pled. The court found the complaint stated a nuisance claim against Exxon even though the consumer carried out any disposal, and although the complaint cited "only a handful" of statements by Exxon, some dating back to the 1960s.

As to the UCL claim, the court found standing to sue under the UCL even though the statements by Exxon that plaintiffs identified mostly occurred outside the four-year statute of limitations, finding that ongoing production and distribution of the product had caused plaintiffs to divert resources to pollution mitigation efforts.

After finding standing, the court rejected the UCL claim on the merits. As to Sierra Club's claim of an "unlawful" act, the court found that any littering that took place involved actions by consumers, not by Exxon itself. The court found that Exxon could not be found liable on those facts, saying that "to allow such a strained theory would essentially mean that any manufacturer is liable for pollution under the UCL – no matter how distant they were from the actual person who passed the plastic into the waters," potentially exposing businesses to "crushing civil penalties and criminal liability."

Sierra Club also tried to bring a UCL claim premised on alleged false statements, but the court found such a claim instead properly sounded in fraud and would be subject to a heightened pleading standard under Federal Rule of Civil Procedure 9(b).

Takeaways

Businesses should be aware of this potentially growing area of litigation. The Sierra Club case is one of a group of cases involving nuisance claims brought against consumer products companies and polymer manufacturers; several such cases are pending in in California and one in Maryland, including cases brought by the City of Los Angeles and the City of Baltimore. A court in New York recently dismissed a similar case brought by the State of New York against two consumer goods companies; that decision is now on appeal.

The decision highlights the value of legal review with respect to statements about environmental attributes of products, including support for any statements that products are recyclable. The decision also demonstrates the scrutiny that courts apply to consumer protection law claims, for which substantial statutory defenses exist.

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