This Comment explores the viability of using the same legal theories employed in the 1990's tobacco litigation to hold the petro industry accountable in California for some of the harms caused by its products. Section I reviews the historical framework and key events leading to the tobacco tort litigation's recovery of public expenses and attainment of industry accountability. Section II describes some of the damages that petro plaintiffs could allege in similar tort claims brought against the petro industry and identifies public costs that petro plaintiffs might be able to recover. In Section III the feasibility of bringing petro tort claims in California against manufacturers of internal combustion engines (hereinafter "ICE") and petroleum fuel is explored. This Section analyzes the ability of petro plaintiffs to establish standing and whether any federal laws preempt their claims. This Section concludes that petro plaintiffs could establish standing to bring either a products liability or nuisance suit, and that their claims could survive preemption challenges. This Section then explores the applicability of products liability law to petro pollution. In particular, the element of causation is considered and found to be provable under California law. The California tests for defective design are also considered, including which test is appropriate for petro litigation. This Section proposes that a strict liability defective design claim against petroleum fuel and ICE manufacturers could be successful. Lastly, Section III explores the applicability of public nuisance law to petro pollution. This Section proposes that suits by both the California Attorney General and private litigants alleging public nuisance against petroleum fuel and ICE manufacturers and seeking to abate health and environmental harms could obtain injunctive and civil penalty relief.
Smoke Before Oil: Modeling a Suit Against the Auto and Oil Industry on the Tobacco Tort Litigation is Feasible, 35 Golden Gate U. L. Rev.