NAM Seeks Supreme Court Review of $1 Billion “Public Nuisance” Claim Against Manufacturers

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The NAM’s Manufacturers’ Center for Legal Action (MCLA) filed a brief today that asks the U.S. Supreme Court to hear one of the most significant tort liability cases in a generation. In ConAgra Grocery Products v. California, 10 California counties sued companies that sold paint containing lead pigment more than 70 years ago. A California court held two companies liable for $1.15 billion in damages to remove this paint from private homes and buildings built prior to 1950 in several California counties and cities. California at the time even promoted the use of lead paint. The companies are now asking the U.S. Supreme Court to review the case, and the MCLA today filed an amicus brief in support.

Beyond the staggering and unwarranted judgment itself, the California court’s ruling threatens manufacturers by validating a new form of tort liability. In recent years, plaintiffs’ lawyers have sought to hold companies liable for selling legal and regulated products, claiming that their use creates a public nuisance. Courts have largely rejected these so-called “public nuisance” claims—until now.

If the U.S. Supreme Court does not reject these overbroad public nuisance claims, manufacturers could be hit with a flood of new lawsuits. Municipalities are already pursuing public nuisance claims seeking billions of dollars from energy manufacturers for alleged climate change impacts. Through the Manufacturers’ Accountability Project, the MCLA is already pushing back against these misguided efforts. Other governments are seeking to use public nuisance law to hold companies liable for harm allegedly caused by chemicals manufactured and used decades ago. It is just a matter of time before other legal and useful products will also be targeted.

The MCLA’s amicus brief in support of Supreme Court review argues that the California court’s holding violates the constitutional rights of the defendants. We highlight the sustained campaign to turn the public nuisance doctrine into a “catch-all” tort for social and environmental issues. We stress that such issues are ill-suited for courts and should remain a legislative and regulatory matter.

NAM Weighs In On EPA’s Proposed Cost-Benefit Analysis Reform

By | Environment, Shopfloor Main, Shopfloor Policy | No Comments

In June, EPA announced it would solicit public input on whether and how to change the way it considers costs and benefits in making regulatory decisions. As was first reported in Politico on Tuesday, the NAM filed comments outlining manufacturers’ priorities for reform and listed numerous examples of flawed and costly rulemaking.

The NAM’s comments included the following recommendations:

  • If costs and benefits will accrue over a 30-year time horizon, the Agency should provide cost and benefit estimates for the whole time horizon, not simply a snapshot of what costs and benefits would look like in a given year within the range.
  • When compliance with a rule is based on unknown controls, EPA must base its calculation of those unknown controls on realistic assumptions.
  • When costs and benefits will accrue to the whole economy, EPA should model the impact on the whole economy, not just a part of it.
  • The Agency should avoid relying on outdated data, studies and methodologies, and it should similarly avoid being overly speculative.
  • The Agency can achieve the consistency and specificity it seeks through statute-specific rulemakings that allow for more tailored approaches reflecting the unique statutory requirements.

As I wrote in our filing:

Manufacturers strongly support EPA’s mission. Moreover, the benefits of appropriate regulations are clear and supported by the public. The issue is how to enable the regulatory system to address legitimate concerns without unreasonably impeding innovation, research, development and product deployment. Too often in the regulatory process, the vital national public policy objectives of international competitiveness and technological innovation are given short shrift due to other competing mandates. In order to protect public health and the environment, the NAM supports a regulatory process designed to adhere to sound principles of science, risk assessment and robust benefit-cost analysis … In our view, there are three pillars of effective regulatory cost considerations: transparency, scientific integrity and accountability. In other words, the rule-making process should be conducted out in the open and backed up by objective, unimpeachable science, while being overseen by officials who are held accountable.

The NAM’s full comments can be viewed here.

PepsiCo Invests $159M in Indiana Manufacturing Facility, Boosting Production and Creating 50 Jobs

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(Photo Credit: Flickr | CC BY 2.0)

Manufacturers continue to invest, innovate, manufacture and distribute right here in the United States, creating new jobs and opportunities. The economy is surging, and the manufacturing industry continues to add jobs while producing more and more for the U.S. economy.

In the latest sign of this exciting growth trend, Frito-Lay, a division of PepsiCo, recently announced plans to invest $159 million in two manufacturing facilities in Frankfort, Indiana:

The Frito-Lay division of PepsiCo, Inc. has made plans to improve its manufacturing capabilities in Frankfort, Ind. The company is investing $159 million into facility enhancements that include adding two new snack production lines and a 210,000-square-foot warehouse expansion.

Two Frito-Lay manufacturing sites currently operate in the town and run 17 production lines. More than 1,100 people work at the facilities. The new investment will allow the company to hire 50 additional employees.

Frito-Lay’s facilities in Frankfort span 650,000 square feet of manufacturing space and employ 1,100 workers.

NAM Email Updates

Engineers say “GO!”

By | Shopfloor Policy | No Comments

It’s that time of year when many of us embark on the American tradition of piling the family into the car with an assortment of snacks and suitcases. For some families the destination is the cool mountains, for others a sunny beach. But far too often we quickly find ourselves parked on the highway wondering why our roads seem more like parking lots.

That frustration increases when state or local governments try to eliminate bottlenecks and expand popular routes—only to be blocked by the traffic-jam of federal government permitting. Most people understand that funding is hard to come by, but most people don’t realize that the Clean Water Act (CWA) can cause permitting delays and even block projects. While the law was intended to protect our critical water resources, years of lawsuits and bureaucratic overreach have twisted the law into a giant federal STOP sign.

We have been working to fix this. Manufacturers’ ability to compete and grow depends on a superior infrastructure system that is second-to-none. When building an infrastructure project, time is the most valuable commodity, so streamlining CWA permitting is a top priority.

Manufacturers asked the courts to throw out federal overreach under the CWA. They agreed. We called on the president to restore the law and protect our waters. He agreed. We asked the Corps of Engineers and the Environmental Protection Agency to provide clarity. And they got to work.

Now the Corps of Engineers is taking an important step towards the clarity we have been asking for with a new order that empowers states to play a stronger role in permitting projects. This is a big win for commonsense and a big win infrastructure. In a simple 3-page memo, the Corps provides long-awaited clarity. It empowers the people of every state to take the lead.

For too long, our nation has relied on the infrastructure we inherited from previous generations. But targeted, substantial investments in modernizing our nation’s infrastructure will create jobs, boost economic growth, save lives and help secure America’s mantle of economic leadership in the world. Manufacturers are excited about this important step in the right direction and a chance to hit the open road again.